Delhi District Court
Babu Lenka vs . Shashi Bhushan Etc. on 4 January, 2010
: 1 :
IN THE COURT OF MS. REENA SINGH NAG PO-MACT (SOUTH)
PATIALA HOUSE COURTS, NEW DELHI
FIR No. 646/06
PS Malviya Nagar
Date of arguments: 04.01.2010
Date of decision : 04.01.2010
IN THE MATTER OF :
Petition no. 409/06
Babu Lenka vs. Shashi Bhushan etc.
Date of institution in this court : 25.09.2006
Date of first institution : 25.09.2006
1. Babu Lenka
S/o Sh. Bhagwan Lenka
2. Mrs. Aparna Lenka
w/o Sh. Babu Lenka
Both resident of :
village Mituani, PO Khaira
District Balasore (Orissa)
Presently residing at :
house no. D-7/1, Katwaria Sarai
New Delhi
Petition no. 442/06
Date of institution in the this court : 16.10.2006
Date of first institution : 16.10.2006
: 2 :
1. Suresh Kumar Lenka
s/o Sh. Abhimanyu Lenka
r/o village Nahanga via Kupari
District Balasore, Orissa
Presiding residing at :
D-7/1, Katwaria Sarai
New Delhi
Versus
1. Shashi Bhushan Sinha
s/o Sh. J. Sinha
r/o E-155, Chhatarpur Extension
New Delhi (Driver-cum-owner of
Santro car no. DL-3C-
AJ-1528)
2. Ashok Kumar
s/o Sh. Rohtash Singh
r/o 192/22, gali no. 8
Gandhi Nagar, Gurgaon
Haryana (Driver of Honda City
car no. DL-9CG-2785)
3. Hilex India Pvt. Ltd.
F-33, Rajouri Garden
New Delhi (Registered owner of
Honda City car no. DL-
9CG-2785 )
4. Tata AIG General Insurance Co. Ltd.
First floor, Lotus Tower
: 3 :
Community Centre, New Friends Colony
New Delhi (Insurer of vehicle no.
DL-3C-AJ-1528)
5. IFFCO-TOKIO,
4th and 5th floor, IFFCO Tower
rd
Plot no. 3, 3 floor, Sector-29
Gurgaon, Haryana
Also at :
IFFCO House,
3rd floor, 34, Nehru Place
New Delhi-19 (Registered Insurer of
car no. DL-9CG-2785)
---------------------Common respondents in both the petitions
AWARD
1. Both the above claim petitions have been filed u/s 166 and
140 M.V. Act by the injured Suresh Kumar Lenka claiming
compensation of Rs. 5 Lacs due to the grievous injuries received and by
parents of deceased Pradeep Kumar Lenka claiming compensation of
Rs. 10 Lacs in the accident which took place on 28.05.2006.
2. Briefly, the facts are that on the fateful day at 10.15 A.M, the
petitioner, Suresh Kumar Lenka along with his relative Pradeep Kumar
Lenka was going to Kalkaji from his house on bicycle which he was
peddling and when they reached at Aurvindo Marg, opposite Mother
International School, a Santro car no. DL-3C-AG-1528 driven by R1
Shashi Bhushan Sinha came at a very high speed rashly and
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negligently without blowing any horn and hit the bicycle of the petitioner
from behind as a result they both fell down on the road and when they
were in the process of getting up, in the meanwhile, another Honda City
car bearing registration no. DL-9CG-2785 driven by respondent no. 2
Ashok Kumar at a high and negligent speed dashed against the
stationary Santro car which had stopped after the first impact and due to
such dashing, Santro car again hit both of them who were removed to
AIIMS by the police. Petitioner Suresh received fracture injuries on his
shoulder and other multiple abrasions on all over his body.
3. Pradeep Kumar was examined at AIIMS. He received
initially fracture injuries on his neck, hand and other parts of the body.
He was discharged from AIIMS on 03.07.2006 and was taken to
Kolkatta for better treatment where he remained under the treatment of
Dr. P.K. Ghosal, MBBS, District 24, Parganas (N) and Pradeep
succumbed to his injuries on 17.08.2006 at 7.40 P.M. His postmortem
was conducted on 18.08.2006.
4. In this case FIR no. 640/06, u/s 279/337/304A IPC was
registered at P.S Malviya Nagar.
5. In response to the notice of the petition to the respondents,
WS was filed by all the respondents.
6. On 13.04.2007, vide order of Ld. Predecessor Sh. A.S.
Yadav, both the petitions were consolidated as they both arise out of the
same accident and case of Babu Lenka was treated as a lead case for
the purpose of recording the proceedings and evidence. On that day,
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following consolidated issues were framed:-
1. Whether Pradeep Kumar Lenka received fatal injuries
and Suresh Kumar Lenka sustained injuries on
account of rash and negligent driving of Santro car
bearing no. DL-3C-AJ-1528 and Honda City car bearing
no. DL-9CG-2785 on the part of R1 and R2 on
28.05.2006?
2. To what amount of compensation are the petitioners
entitled and from whom?
3. Relief
7. In support of the petition, following witnesses were
examined in the lead case:-
8. PW1 Babu Lenka, father of deceased Pradeep who filed his
affidavit in the evidence and referred to the other documents viz. the
discharge summary of Pradeep as Ex.PW1/1 showing his hospitalisation
period at AIIMS from 28.05.2005 to 03.07.2006, OPD card of AIIMS
dated 08.07.2006 as Ex.PW1/2, concession certificate issued on
11.07.2006 in favour of Pradeep by AIIMS as Ex.PW1/3, the original
prescriptions of Dr. Ghosal dated 01.08.2006 as Ex.PW1/4 and dated
18.08.2006 as Ex.PW1/5; the original bills, invoice and 57 receipts
running in 31 pages in respect of expenses of Rs. 45,000/- incurred for
the period from 28.05.2006 to 03.07.2006 and subsequently at home at
Delhi on purchase of medicines, test, MRI's, implants etc. vide
Ex.PW1/6, photocopy of postmortem as Mark Ex.PW1/A, photocopy of
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original High School Certificate as Ex.PW1/7. It was claimed that
deceased was a graduate. In his cross examination, he admitted that
he was not an eye witness and that he was not having any proof to
show that Pradeep was earning Rs. 5,000/- per month.
9. PW2 is Dr. Ashish Suri from AIIMS hospital (Department of
Neuro Surgery), who confirmed the discharge summary of Pradeep
Kumar vide Ex.PW1/1 and testified that at the time of discharge,
Pradeep Kumar was having weakness in hands and complete paralysis
of both legs but he was otherwise conscious and was following the
commands but his condition remained unchanged before and after the
operation because of damage to the spinal cord due to the injuries
sustained in the accident. He also stated that chances of improvement
of such a patient are very less. In his cross examination by R5, doctor
stated that paralysis could ultimately result in death of the patient but he
could not say with any certainity in the absence of other documents
relating to the treatment that injuries suffered by Pradeep was solely
responsible for his ultimate death. He also added that at the time of
discharge, there was no immediate threat of death.
10. PW3 is Suresh Lenka, who is petitioner himself and is an
eye witness who proved his affidavit as Ex.PW3/X and also tendered in
evidence the documents Ex.PW3/1 to 5 viz. OPD patient card of AIIMS,
the educational certificate from high school and college for graduation.
In his cross examination, he remained firm on the mode and manner of
accident as narrated in the petition and also claimed that besides
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Government hospital, he also received treatment from a private doctor in
his village. He denied any rashness and negligence on his part.
11. PW4 is Shankar Prasad, MRT from AIIMS hospital, who
proved the MLC of Suresh Kumar by Chitranjan Behra on 28.05.2006
vide Ex.PW4/1. Validity of the insurance policy by the respective insurer
in respect of both the offending vehicles has not been disputed.
12. I have heard the arguments, and gone through the case file.
My findings on the issues are as under :
ISSUE NO 1
13. This is a petition u/s 166 of the MV Act as such petitioner is
required to prove the rashness and negligence by the driver in causing
the accident. In this case, driver of both the offending vehicles are
alleging against each other as they are responsible for the accident. In
motor accident case, the standard of proof is very mild and the rash and
negligent act by the driver of the offending vehicle is not to be
established by the petitioner beyond all shadow of reasonable doubts. It
is the duty of every motorist to drive the vehicle in a controlled manner
so as to avoid any impact with any person or object coming in his way.
The Santro car did not keep a safe distance from the cyclist and struck
the cyclist from behind and rashness and negligent act on the part of
driver of the Santro vehicle is writ large. Now, coming to the role of rash
and negligent driving by Honda City car, in my considered view, its
driver was also rash and negligent as he did not even notice the
stationary Santro car and struck the same from behind thereby giving
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the inference that the driver of the Honda City car was not in control of
the vehicle so as to bring it to a halt on seeing the exigency taking place
ahead in this case, hitting of the cyclist by Santro car and Santro car
becoming stationary thereafter. As such issue no. 1 is decided in favour
of the petitioner and against respondent no. 1 and 2 who are held as
contributing negligence to the extent of 50 % on their respects parts in
causing the accident. (R1 and R2 both are responsible for 50 %
contributory negligence each).
Issue no. 2:-
14. Since issue no. 1 has been decided in favour of the
petitioner and against the respondent no. 1 and 2, petitioners are
entitled to compensation as under:-
Compensation in the case of Babu Lenka
Medical expenses:
15. Deceased Pradeep remained hospitalised from 28.05.2006
to 03.07.2006 as per discharge summary Ex.PW1/R. As per PW2, there
were injuries in the spinal cord of patient Pradeep and his both the legs
were paralysed and he also underwent operation at AIIMS. Petitioner
has claimed to have spent Rs. 45,000/-. The bills on record are roughly
over Rs. 43,000/-, so petitioners are awarded Rs. 45,000/- under this
head.
Pain and sufferings
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16. From the nature of injuries suffered by Pradeep, it can be
very well appreciated that he must have suffered immense pain
physically and mental sufferings emotionally and is entitled to
compensation during the period of his survival after the accident for a
brief duration up to 17.08.2006 and Rs. 1,00,000/- is awarded under this
head.
Loss of dependency:
17. The victim met with the accident on 28.05.2006. He expired
on 17.08.2006. His age in the petition has been claimed as 26 years, the
copy of the postmortem report is mark Ex.PW1/A. His High School
Certificate from the Board of Secondary Education, Orissa mentions the
date of birth of Pradeep as 07.08.1980. Mark Ex.PW1/A reflects that
Autopsy was conducted at Barrackpore Hospital at 24, Pargana on
18.08.2006. However, VISRA report was awaited. In this context, the
testimony of PW2 Dr. Ashish Suri assumes significance who testified
that the injuries suffered by the patient and paralysis can ultimately
result in death of the patient. The only logical conclusion drawn in the
obtaining facts and circumstances is that it was because of the injuries
sustained in the accident on 28.05.2006 that the deceased succumbed
to his injuries subsequently on 17.08.2006 and as such compensation
has to be awarded as per the judgment of Sarla Verma. Deceased was
unmarried at the time of accident and is survived by his parents. The
age of mother has been mentioned in the petition as 42 years. Voter
card of Arpana Lenka, mother of Pradeep reflects that as on 01.01.1994
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her age was 30 years and at the time of filing of petition her age was
about 42 years. The same has not been challanged by the respondents.
The petitioner father has not been able to lead any evidence in support
of income of deceased as Rs. 5,000/- per month. So, his income is to be
computed under the Minimum Wages Act at the time of accident and
same was Rs. 4031/- for graduate (deceased was a graduate). The
multiplier of 14 is to be applied on the basis of age of mother of
deceased. On the basis of formula (X + 2 X) /2, where X is the monthly
income, 4031/- to appreciate the future increase in income on the basis
of inflations, on the analogy of Sarla Verma, the total income comes to
Rs. 10,15,812 ( Rs. 6046.5 x 12 x 14). Although, deceased was
unmarried in this case, but had he survived, he would have remained in
the state of vegetative existence only due to the paralysis suffered by
him due to fracture injuries on the neck, so no deduction is being made
on account of his personal expenses in the obtaining facts and
circumstances as it is expected that in the case of survival, deceased
would have required the services of the attendant.
Loss of income:
18. The confinement period in bed after the accident was
approximately about three months and as per minimum wages of
graduate, income has to be computed as Rs. 4031/-, so there is loss of
income of Rs. 4031 x 3 = Rs. 12,093/- to Pradeep. Petitioners are
accordingly awarded Rs. 12,093/-.
Loss of amenities:
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19. Pradeep was confined to bed and could not enjoy the
normal activities of life for the period of confinement before his death
and he is awarded Rs. 15,000/- for the same.
Conveyance:
20. Pradeep was taken to Kolkatta for his treatment after his
discharge from AIIMS. Due to the nature of injuries, he must have been
taken to the doctors at Delhi and at Kolkatta for follow up visits and he
must have incurred expenses on this count and he is awarded Rs.
15,000/- for the same.
Love and affection:
21. Although loss of life cannot be compensated in any manner
but, in token of this relief, petitioners are awarded Rs. 50,000/-.
Funeral expenses:
22. Under this count, petitioners are awarded Rs. 10000/- as the
expenses, which they incurred on the funeral of the deceased .
Loss of estate:
23. Under the customary head of loss of estate, I award
Rs. 10,000/- .
24. As such petitioners are awarded the compensation under
the following Head :-
On account of medical expenses: 45,000.00
Pain and sufferings : 1,00,000.00
Loss of Dependency : 10,261,44.00
Loss of income : 12,093.00
Loss of amenities : 15,000.00
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On account of conveyance : 15,000.00
Loss of Love and affection : 50,000.00
Loss of Estate : 10,000.00
Funeral Expense : 10,000.00
--------------------------
Total : Rs. 11,82,905.00
---------------------------
Relief:
25. Petitioners are awarded Rs. 11,23,905.00 as compensation and award is passed accordingly in favour of the petitioners and against the respondents jointly and severally. Petitioners are also entitled to interest @ 7.5 per cent from the date of filing of petition viz. 25.09.2006 till the deposit of cheque amount with the Tribunal. Petitioner no. 1 father is entitled to 10% whereas petitioner no. 2 being mother is entitled to 90 % of the award amount. 70% of the award amount falling in share of petitioner no. 2 and 50 % of award amount falling in share of petitioner no. 1 shall be kept in FDR's for 10 years and petitioners are entitled to draw interest thereon monthly without reference to court. Petition no. 446/06 Suresh Lenka vs. Shashi Bhushan Sinha Loss of income:
26. Petitioner has claimed that he was student of final year and was giving tuitions to children and was earning Rs. 3,000/- per month. : 13 :
He has admitted in his cross examination that he has not placed on record any document to show his income as Rs. 5,000/- per month from the tuitions. He being an abled bodied person, it can be presumed that he must be earning to make his livelihood and his income is to be computed as per Minimum Wages Act for graduate worker, since relevant educational document has been placed on record by the petitioner. At that time, the minimum wages for a graduate was Rs. 4031- for graduate. As per his MLC, the nature of injuries suffered by him is grievous. He was subjected to x-ray of skull, of right clavicle-KP, x-ray of chest, PA View. In vieww of the nature of the injuries, it can be appreciated that he must have suffered and could not have earned for atleast four months. So, he is awarded Rs. 4031 x 4 = Rs. 16124/-. Pain and suffering:
27. As for pain and suffering, due to the nature of injury as discussed above, it is expected that petitioner must have been put to lot of inconvenience in his day to day personal work such as attending to call of nature etc., so he is entitled for compensation in sum of Rs.
35,000/- and award is passed on this count accordingly. Conveyance:
28. Petitioner is awarded Rs. 10,000/- on account of conveyance.
Special diet :
29. The petitioner is awarded Rs. 5,000/- for special diet as it is common knowledge that when one suffers injuries or remains ill, is : 14 : required to take special diet.
30. As such petitioner is awarded the compensation under the following Head :-
Loss of income : 16,124.00
Pain and suffering : 35,000.00
Conveyance : 5,000.00
Special diet : 5,000.00
-------------------
Total : Rs.61,124.00
------------------
Relief:
31. Award is passed in favour of the petitioner in sum of Rs.
61,124.00 and against the respondents along with interest at the rate of 7.5% per annum from the date of filing of petition viz. 16.10.2006 till deposit with the tribunal within one month of the order.
32. In both the petitions, the liability shall be discharged by insurer R4 and R5 in equal proportion i.e. 50 % each by depositing the award amount within 30 days from the date of order, as validity of insurance policy of offending vehicle on the date of accident is admitted by the respective insurer.
33. Let for the identification of the petitioner(s) in execution proceedings, the copy of the relevant page of the petition wherein photograph of the petitioner(s) is/are affixed, be annexed with the order of award.
34. Copy of the award be given to the parties concerned as per law and copy be kept in the other file.
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35. Award is passed accordingly.
Announced in open court 04.01.2010 REENA SINGH NAG PO MACT, SOUTH NEW DELHI