Delhi District Court
Hridaya Nagaria vs Jai Kishan (Driver) on 28 October, 2016
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTH-EAST DISTRICT : KKD COURTS : DELHI
MACT No. 205/13, New MACT No. 15018/15
FIR No. 229/13, PS Panipat Sadar, Haryana
HRIDAYA NAGARIA
S/o Sh. Kushal Pal Verma
R/o H. No. D-2/187, Gali no. 2,
Nehru Vihar, Dayalpur, Delhi 94.
...... Petitioner
Versus
1. JAI KISHAN (Driver)
S/o Sh. Deviroop,
R/o Village Sevda Chandi
P.S. Dadla Ghat, Teshil Arki,
Distt. Solan, (Himachal Pradesh)
2. HIMACHAL ROADWAYS STATE TRANSPORT CORPORATION
Through its Depot Manager, Depot Unninav,
Distt. Solan, H. P. (Owner)
3. SECRETARY, HIMACHAL ROADWAYS
State Transport Corporation,
SHIMLA, H. P. (Regd. Owner)
......... Respondents
i) Date of Institution of claim petition : 23.10.2013
ii) Date of Decision : 28.10.2016
APPLICATION U/S 166 & 140 M.V. ACT 1988
FOR GRANT OF COMPENSATION
AWAR D
1. Petitioner being the injured filed the present claim petition u/s 166 & 140 MV Act seeking the compensation. It is the case of the petitioner that on 18.06.2013 at about 12:30 am petitioner alongwith other passenger were travelling in H. P. Roadways bus bearing no. HP 64 1962 and petitioner was going towards Shimla from Delhi, which was being driven by its driver/respondent no. 1 at a very high speed. When the Himachal Roadways reached at G. T. Karnal Road Village Babarpur, Mandi Pul, suddenly respondent no. 1 i.e driver of offending vehicle took sharp cut in a rash and negligent manner on right side i.e from driver side and hit a cement trolla bearing no. HR MACT no. 205/13 Ms. Kiran Bansal Page no. 1/9 55F 5527 with a great force. Due to this impact petitioner received grievous injuries and petitioner was removed to BPS Govt. Medical College for women Khanur Kalan, Sonepat, Haryana and where his MLC was prepared. FIR No. 229/13 u/sec 279/337/304A IPC was also registered at PS Panipat Sadar, Haryana in this respect. It is further stated that petitioner was 18 years of age and was student.
2. WS was filed on behalf of respondents no. 1 & 2 . It has not been specifically denied that FIR no. 205/13 was registered at PS Panipt Sadar, Haryana against respondent no. 1. According to the respondents, many lives were saved and head-on-collusion was averted due to wise and prompt action of respondent no. 1. It is stated that the accident took place due to carelessness of cement trolla bearing no. HR 55F 5527.
3. After completion of the pleadings, following issues were framed :
1. Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. HP 64 1962 by respondent no. 1 on 18.06.2013 at about 12:30 a.m., at G.T. Karnal Road Village Babarpur Mandi Pul within the jurisdiction of PS Panipat Sadar, Hryana? OPP
2. Whether petitioner is entitled to compensation ? If so, to what amount and from whom?
3. Relief.
4. Petitioner has examined himself as PW1 and has tendered his affidavit Ex. PW 1/A and relied upon the documents i.e discharge summary Ex. PW 1/1 to Ex. PW1/3, OPD cards, X-rays report and medical treatment reports/prescription various hospitals are Ex. PW 1/ 4, B.Tech/ B.Tech-Le identity card Ex. PW1/5, election identity card and ration card E.x PW 1/6,FIR, statement of injured U/s 161 Cr. P. C. , Mechanical report of Himachal Roadways Transport Corporation Bus bearing no. HR 64 1962, site plan , Statement of HPRTC, Inspector Ramesh Chander, statement of Balkar Singh U/s 161 Cr. P. C. Statement of Ravinder Kumar , statement of Ramesh Chand and statement of Gurnam Singh Ex. PW1/ 7, 10 th class marksheet and 10th class mark sheet is Mark A, disability certificate Ex. PW 1/8. Dr. Ankit Chawla has been examined as PW
2. Respondents have not led any evidence.
5. I have heard ld. counsel for petitioner and ld. Counsel for insurance and gone through the entire evidence on record carefully. My issue wise findings are as below :6. ISSUE NO. 1
Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. HP 64 1962 by respondent no. 1 on 18.06.2013 at about 12:30 a.m., at G.T. Karnal Road Village Babarpur Mandi Pul within the jurisdiction of PS Panipat Sadar, Hryana? OPP MACT no. 205/13 Ms. Kiran Bansal Page no. 2/9 Petitioner has examined himself and deposed about the facts in his affidavit. During cross examination, PW 1 has deposed that accident occurred on 18.06.2013 while he was going to Dharampur and he has boarded the offending vehicle from ISBT, Kashmiri Gate. The bus started from ISBT at around 10:15 pm and he has purchased a ticket but he has lost the same. It is further deposed that the accident occurred at around 12:00 mid night and he had not made any complaint to the police between 10:15 to 12:00 pm regarding the rash driving of the driver. He had not seen the cement trolla before bus hit the same . He was awake at the time of accident.
Nothing has come forward in the testimony of PW 1 to disbelieve his version regarding the manner of accident. On the other hand, respondent no.1 /driver has also not stepped into the witness box to state as to how accident occurred and to depose that he was not at fault and was not driving the vehicle in rash and negligent manner or that no accident occurred with his vehicle.
To determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also a settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
Therefore, in view of the statements of PW Sh. Hridaya Nagaria it is proved that the MACT no. 205/13 Ms. Kiran Bansal Page no. 3/9 petitioner has sustained injuries in the accident which occurred on 18.06.2013 due to rash and negligent driving of offending vehicle bearing no. HP 64 1962 driven by its driver i.e Respondent no. 1. The issue is decided accordingly.7. ISSUE NO. 2
Whether petitioner is entitled to compensation? If so, to what amount and from whom?
Disability:-
It is stated by the petitioner in his statement as well as in chief affidavit that he suffered grievous injuries. Petitioner was allowed to get examined by the GTB Hospital for the purpose of assessing disability and the disability certificate was issued. As per the contents of the disability certificate, petitioner suffers from the disability of 52% of right upper limb and right lower limb.
Dr. Ankit Chawla, Sr. Resident, Department of Orthopedic , GTB Hospital has been examined as PW 2. who proved the disability of Sh. Hridaya Nagaria and board has assessed his disability 52% on right upper limb and right lower limb and disability certificate. During cross examination he deposed that this disability is not of whole body but only for right lower limb and right upper limb and petitioner can walk but he will face difficulty in doing work from right hand and petitioner will not be able to do typing work or writing work like any other normal person. He has further stated that there is no possibility of improvement in the condition of the patient Sh. Hridaya Nagaria. The injured would not be able to run or driver any vehicle.
It is difficult to ascertain in exact terms as to how much the disability in both right limbs has affected the whole body of the petitioner. Counsel for petitioner has argued that as both right limbs of petitioner are affected, the functional disability be considered 100% where as the counsel for insurance has argued that whole body disability be reduced to half. Petitioner during his examination as per clause 26 of Modified Claim Tribunal Agreed Procedure has stated that due to the accident he was unable to take any admission in any Engineering College for the session 2013- 2014 and unable to apply for Armed Forces as he has studied from Army Public School, Dagshai. Considering the age and occupation of the petitioner and the fact that disability relates to two important limbs, the disability in relation to whole body for the purpose of calculation of future loss of income can be taken to be 52%.
Income of injured:-
Injured has stated in his affidavit that he is student and beside that he also used to give tutions to the children and earning Rs. 12,000/- per month. To prove his educational qualification MACT no. 205/13 Ms. Kiran Bansal Page no. 4/9 injured has placed on record marksheet of secondary school examination and senior school examination on record which are marked as mark A. He has also stated that he is doing B. Tech from Northern India Engineering College. He has placed on record copy of identity card of his B.Tech which is Ex. PW1/5. However, no documentary proof regarding the income of deceased has been placed on record. Perusal of educational documents shows that injured was bright student in as much as he has got 8.2 in his 10 th class examination. Grade A2 in Hindi as well as Maths in 12 th class examination. Also he has scored 91 marks in Chemistry, 82 Marks in English and 79 marks in Physical Education and thus, distinction in all the three subjects. He is also pursuing Engineering and thus, it is felt that he is capable of earning at least Rs. 25,000/- per month in future. Age of injured:-
As per certificate of secondary school examination mark A and B. Tech identity card Ex. PW1/5, the date of birth of injured is 14/02/1995. As per the voter ID card Ex. PW1/6, the age of injured was 18 years as on 01/01/2014. As per ration card,the year of birth of injured is 1994. As per disability certificate, the age of injured is 18 years. Therefore, his date of birth is taken to be 14/02/95 and thus, he was 18 years old at the time of accident. Applying the guidelines of the Hon'ble Supreme Court in the judgment reported as "Smt. Sarla Verma vs DTC 2009 AIR (SC) 3104", the multiplier applicable in the present case is 18 for the purpose of calculating future loss of income.
The law has been well settled that the compensation has to be awarded in disability injury cases under following heads:- (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, he is further entitled to non-pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries (2) loss of prospects of marriage & (3) loss of expectation of life. Treatment expenses:-
Petitioner has stated in his chief affidavit that he had spent Rs. 2,50,000/- on the medical treatment but he has reimbursement from Ex-Serviceman Contributory Health Scheme. He had spent Rs. 90,000/- on special diet, Rs. 50,000/- on conveyance and Rs. 80,000/- on attendant.
As per the record available, initially the injured was admitted in BPS Govt. Medical College for women Khanpur Kalan, Sonepat, Haryana where the concerned doctor diagnosed to his right leg fracture and other grievous injuries all parts of his body where the concerned doctor operated to him on 18.06.2013 and discharged on 30.06.2013. He remained visited to Fortis Hospital Noida for MACT no. 205/13 Ms. Kiran Bansal Page no. 5/9 medical treatment on 15.07.2013 where the concerned doctor diagnosed to him crush injury of right elbow and where concerned doctor operated debridement and skin grafting and discharge on 09.08.2013, discharge summary is Ex. PW 1/ 2. He was again admitted in Fortis Hospital Noida on 09.09.2013 where the concerned doctor diagnosed to him compound fracture distal humerus with radial nerve palsy with external fixator in (Rt. ) situ with interlocking nail (Rt.) tibia andwhere the concerned doctor operated to him external fixator removal + POP application (Rt.) upper limb was done on 10.09.2013 under CSE and discharge on 11.09.2013. The copy of discharge summary is Ex. PW1/3. After the discharge from the said hospital he was continuously an OPD patient in the said hospital up to 02.02.2014. Though, he was a student but must have suffered some loss of study. Therefore, he is entitled to the loss of study for a period of 9 months. There is no fixed formula to calculate the amount of compensation for loss of study but it is deemed fit that Rs.
80,000/- would be just compensation for loss of study for a period of 9 months. PECUNIARY EXPENSES / COMPENSATION Diet, Conveyance and Attendant Charges:-
Keeping in view the nature of injuries suffered by the Claimant i.e permanent disability of both right limbs and the fact that he was under constant treatment, he would have definitely needed an Attendant to look after him and the claimant is therefore, entitled to attendant charges. It is also a fact that if no attendant is presumed to be engaged still, some family member must have been attending him. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of of Hon'ble Delhi High Court held that a victim cannot be deprived of compensation towards gratuitous services rendered by some of the family members, for the benefit of the tortfeasor. In the circumstances of the case, it is deemed fit that a lump sum of Rs. 50,000/- be awarded as compensation towards Attendant charges. Petitioner has not shown anything for spending money on special diet and conveyance but he must have gone for follow up check ups and must have been given special diet for speedy recovery. Thus, Rs. 40,000/- is awarded for special diet and Rs. 40,000/- towards conveyance charges.
Future loss of income:-
Accordingly, the loss of future income due to disability is calculated as below: Rs. 25,000/- X 12 X 18 = Rs. 54,00,000/-
Rs.54,00,000/- X 52 % = Rs. 28,08,000/-
In Zahid Khan Vs. Arun Mandal and others, 2016 ACJ 1142 in which injured was labourer and suffered 85% permanent disablement due to amputation of right leg, Rs. 100,000/- was awarded as MACT no. 205/13 Ms. Kiran Bansal Page no. 6/9 pain and suffering, Rs. 1,50,000/- for loss of amenities, Rs. 1,75,000/- for amputation of leg and disfigurement, Rs. 200,000/- for artificial limb and Rs. 200,000/- for future medical and other expenses.
Accordingly, compensation is calculated as below:
NON-PECUNIARY COMPENSATION
Compensation towards pain and suffering Rs. 100,000/-
Compensation towards loss of amenities of life Rs. 100,000/-
Compensation towards disfiguration Rs. 50,000/-
Compensation towards loss of Marriage Rs. 100,000/-
prospects
Total non-pecuniary compensation Rs.3,50,000/-
PECUNIARY COMPENSATION
Loss of study Rs. 80,000/-
Loss of future income due to permanent Rs. 28,08,000/-
disability
Compensation towards salary of attendant Rs. 50,000/-
Compensation towards special diet Rs. 40,000/-
Compensation towards conveyance Rs. 40,000/-
Total Rs. 30,18,000/-
Thus, the total compensation amount is Rs. 33,68,000/-.
8. Liability
It is admitted fact that the respondent no. 1 is a driver and respondent no. 2 is the owner of the offending vehicle i.e bus bearing no. HP 64 1962. It is also clear from the material on record that respondent no. 2 i.e Himachal Roadways State Transport Corporation is the employer of driver i.e respondent no. 1. In view of my findings on issues no. 1 & 2, respondent no. 2 and 3 being the owners of the offending vehicle is held liable to pay the compensation.
9. Relief Injured was examined as per clause 26 of the Modified Claims Tribunal Agreed Procedure wherein he stated that he is pursuing B. Tech (IT) from I.P. University, Delhi and is MACT no. 205/13 Ms. Kiran Bansal Page no. 7/9 unmarried. He has stated that the amount he would get from the tribunal will be utilised by him on his further studies.
Injured is entitled to an amount of Rs. 33,68,000/-.
Accordingly, Respondent no. 2 and 3 are directed to pay a sum of Rs.33,68,000/- (including interim compensation, if any), by way of depositing cheque in the account of Hridaya Nagaria, petitioner having account bearing no. 0626000105040192 in Punjab National Bank, Yamuna Vihar, Delhi Branch along with interest @ 9% per annum from date of filing of the petition (23/10/2013) within 30 days. In default, respondents no.2 and 3 shall be liable to pay penal interest on the award amount @ 12% p.a. for the default period.
In Reliance General Insurance Co. Ltd. Vs. Vimla Devi, MAC APP. 547/2016 vide its order dated 25/07/2016 Hon'ble High Court of Delhi has observed that "This court is of the view that if the deceased would have been alive, his family members would have received a portion of his income every month and not a lump sum amount at any point of time. The purpose of awarding compensation is to put the family members of the deceased in the same financial position. As such, it would be appropriate to ensure that the family members get reasonable amount of compensation every month like they would have received if the deceased had been alive".
As per clause 28 of the Modified Claim Tribunal Agreed Procedure ,depending upon the financial status and financial need of the claimant, the tribunal has to release the amount as considered necessary and remaining amount be kept in FDR in phased manner. Injured, if would have kept on earning or working, she would have received monthly salary and not lumpsum amount at any point of time.
Bank Manager, Punjab National Bank, Yamuna Vihar, Delhi is thus, directed to keep a sum of Rs. 30,00,000/- in fixed deposit in the following manner and the remaining amount be released in the account of petitioner.
Sr. No. Duration of FDR Petitioner FDR amount
1 1 year Rs. 300,000/-
2 2 years Rs. 300,000/-
3 3 years Rs. 300,000/-
4 4 years Rs. 300,000/-
5 5 years Rs. 300,000/-
6 6 years Rs. 300,000/-
7 7 years Rs. 300,000/-
MACT no. 205/13 Ms. Kiran Bansal
Page no. 8/9
8 8 years Rs. 300,000/-
9 9 years Rs. 300,000/-
10 10 years Rs. 300,000/-
Total Rs. 30,00,000/-
The Bank shall further comply with following directions :-
(a) The interest on the fixed deposits be paid monthly to the injured.
(b) The monthly interest be credited automatically in the saving account of the claimant.
(c) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs be given to the claimant along with the photocopy of the FDR. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant.
(d) No cheque book be issued to the claimant without permission of the court. However, a photo identity card be issued to the claimant and the withdrawal be permitted upon production of the identity card.
(e) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the court.
(f) The Bank shall not permit any joint name to be added in the savings bank account or fixed deposit accounts of the victim.
(g) Half yearly statement of account be filed by the Bank in the Tribunal.
Copy of the award be sent to the Nodal Officer of the Punjab National Bank, Yamuna Vihar, Delhi alongwith the court stamped copy of the photographs, specimen signatures, proof of residence and bank account details of the petitioner. (as per clause 27 of the Modified Claim Tribunal Agreed Procedure).
Attested copies of the award be furnished to the concerned parties from court for compliance and be sent to the court of concerned Ld. MM & DLSA.
10. Put up for compliance on 28/11/2016.
Pronounced in Open Court on (KIRAN BANSAL)
28/10/2016 P.O. MACT(North-East)
KKD Delhi
MACT no. 205/13 Ms. Kiran Bansal
Page no. 9/9