Delhi District Court
Sunil Kumar Singh vs . Prasadi & Ors. on 10 September, 2018
Sunil Kumar Singh vs. Prasadi & Ors.
IN THE COURT OF SH. SAMEER BAJPAI : PRESIDING OFFICER : MACT
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Petition No. : 166/17
Sunil Kumar Singh
S/o Late Siddhnath Singh
R/o Behind Ravinder Bhati Ki Kothi,
Roja Jalalpur, Greater Noida (West),
U.P.
Also at :
C3/68, New Kondli
Mayur Vihar Phase3,
Delhi - 110 096
..... Petitioner
Versus
1. Prasadi @ Vinod
S/o Sh. Isri Prasad
R/o Vill. Indhra, PS Bhalawa,
Distt. Hardoi, U.P.
Presently at :
Vill. Iteda, PS Bisraav,
Distt. Gautam Budh Nagar, U.P. ........... (Driver)
2. Suraj Singh
S/o Sh. Mamraj Singh
R/o H. No. 20, Bhoora Mohalla,
Near Talab Jonapur,
PS Fatehpurberi, Aya Nagar,
New Delhi ........... (Owner)
Petition no. : 166/17 1/15
Sunil Kumar Singh vs. Prasadi & Ors.
3. IFFCO Tokio General Insurance Co. Ltd.
34, IFFCO House, 2nd Floor,
Nehru Place, New Delhi - 110 019 .......... (Insurer)
..... Respondents
Date of Institution : 11.04.2017
Date of reserving of judgment/order : 29.08.2018
Date of pronouncement : 10.09.2018
J U D G M E N T :
1. By this order I shall dispose of the Claim Petition filed by the petitioner for the injuries sustained by him in a road accident on 07.12.2016 at about 11 p.m. at Sector71 Chowk, Noida, U.P. due to rash and negligent driving of vehicle bearing no. HR 55 J 3436 by respondent no.1, owned by respondent no.2 and insured with respondent no.3.
2. Despite ample opportunities, respondents no.1 and 2 did not file any written statement.
3. Respondent no.3 has filed its written statement denying the averments made by the petitioner and taking all the general defences.
4. For just adjudication of the case following issues were framed vide order dated 01.05.2018 :
Petition no. : 166/17 2/15Sunil Kumar Singh vs. Prasadi & Ors.
1. Whether injured Sunil Kumar Singh sustained injuries in a road accident on 07.12.2016 at about 11.00 p.m. at Sector71 Chowk, Noida, U.P. due to rash and negligent driving of vehicle bearing no. HR 55 J 3436 being driven by Prasadi @ Vinod, owned by Suraj Singh and insured with IFFCO Tokio General Insurance Co. Ltd.?... (OPP.)
2. To what amount of compensation the petitioner is entitled and from whom?
3. Relief.
5. PW1 Dr. Deepa Dash, Assistant Professor (Neurology), AIIMS Hospital was examined as PW1. She proved the disability certificate dated 12.12.2017 Ex.PW1/A.
6. Petitioner examined himself as PW2. He tendered in evidence his affidavit Ex.PW2/A. He relied upon the documents Ex.PW2/1 to Ex.PW2/5.
7. Dr. Ashima Nehra, Additional Professor, Clinical Neuro Psychology, Neuro Sciences Center, AIIMS was examined as PW3.
8. Respondents did not examine any witness.
9. I have heard arguments advanced by counsel for the parties and perused the record. My findings on the issues are as follows :
Petition no. : 166/17 3/15Sunil Kumar Singh vs. Prasadi & Ors.
I S S U E N o. 1
10. Needless to say that for making someone entitled U/s 166 of the Motor Vehicle Act, negligence of the driver of the offending vehicle needs to be proved and to prove the same the Tribunal need not go into the technicalities because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just, rational and reasonable on the basis of enquiry. It is an admitted legal position that the negligence on part of the driver with respect to use of the vehicle needs to be established and the same is to be established on the principle of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III (2015) ACC 435 Delhi.
PW2 (petitioner) has stated that on 07.12.2016 he was returning back to his residence from his work place on his bicycle. At about 11.00 p.m. when he reached Sector71 Chowk, Noida, all of a sudden a Truck bearing registration no. HR 55 J 3436 being driven by respondent no.1 in a rash and negligent manner came and hit him with great force. Due to the impact, he fell down on the road and sustained injuries. He was taken to Fortis Hospital, Noida where his MLC was prepared. Thereafter, he was shifted to ESI Hospital, Noida. He further stated that the accident took place due to rash and negligent driving of the Truck bearing registration no. HR 55 AJ 3436. A case vide Crime no. 1328/16 was registered at the police station Phase3, Noida, Gautam Budh Nagar, U.P. During crossexamination on behalf of insurance company, he denied that the accident was caused due to his negligence as he was riding his bicycle in a wrong way without obeying traffic rules. He further denied that Petition no. : 166/17 4/15 Sunil Kumar Singh vs. Prasadi & Ors.
there was no negligence on the part of vehicle bearing no. 3436 in causing the accident.
In the present case the petitioner has filed the certified copy of criminal record which includes FIR, charge sheet, site plan etc. As per site plan, the accident had occurred at a crossing. At crossing the driver of the offending vehicle was supposed to drive slow but he failed to do so and the accident had occurred. Nothing material came in crossexamination of PW
2. Even no other version of accident has come on record except the one as narrated by PW2. Therefore, in view of the unrebutted testimony of PW1 on the aspect of manner of accident, it is established on record that the petitioner sustained injuries in a road accident on 07.12.2016 at about 11.00 p.m. due to rash and negligent driving of vehicle bearing no. HR 55 J 3436. Documents filed on record shows that the vehicle was owned by respondent no.2 and it was insured with respondent no.3.
This issue is decided in favour of petitioner and against the respondents.
I S S U E No. 211. The petitioner has claimed compensation in respect of the injuries sustained by him. In a road accident a person is entitled to compensation for the pecuniary and nonpecuniary damages.
12. Let me assess the compensation which the claimant is entitled for under different heads :
Petition no. : 166/17 5/15Sunil Kumar Singh vs. Prasadi & Ors.
MEDICAL EXPENSES :
13. In the present case the petitioner has filed medical bills of Rs. 23,944/. The bills are not in dispute between the parties, therefore, I award Rs.24,000/ to the petitioner towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
14. As per discharge summary of Yatharth Hospital, the petitioner was diagnosed with RTA with head injury and Blunt Trauma in chest and abdomen. He remained in Yatharth Hospital from 08.12.16 to 01.02.17. He was again admitted in ESI Model Hospital, Noida from 01.02.17 to 28.02.17. There he was managed conservatively. Tracheostomy tube closure was done. He was again admitted in ESI Model Hospital, Noida from 20.03.17 to 24.03.17. He has taken physiotherapy for a long time. As per the disability certificate, the petitioner has 'Left sided spastic hemiplegia with left sided facial nerve palsy. The clinical NeuroPsychological evaluation inferred that the patient is a case of moderately impaired mental status. He has 90% permanent physical impairment with respect to whole body'.
PW1 has stated that the petitioner has motor deficit which will hamper his ambulation and ability to do physical activities. She further stated that it is unlikely that the petitioner's motor and cognitive (mental/intellactual) functions will improve over the passage of time. She further stated that if the petitioner is a labourer, he will be dependent on others for his activities of daily living and cannot be engaged in any kind of employment, work or activities.
Petition no. : 166/17 6/15Sunil Kumar Singh vs. Prasadi & Ors.
Having regard to the injuries, treatment, disability of the petitioner and deposition of PW1, I award him Rs. 5,00,000/ towards pain and sufferings and enjoyment of life.
SPECIAL DIET , CONVEYANCE & ATTENDANT CHARGES :
15. Petitioner has stated that he has spent Rs. 50,000/ each on special diet, conveyance and attendant charges. During crossexamination he admitted that he has not filed equivalent bills to his averments. The petitioner has suffered such injuries that he must have been advised special diet for his early recovery. He visited the hospital as an OPD patient for which he must have spent money on his conveyance. His condition was such that he must have taken help of an attendant for his daily routines. Therefore, looking into all the aspects, I award Rs. 1,00,000/ to the petitioner towards special diet, conveyance and attendant charges.
LOSS OF INCOME / FUTURE INCOME :
16. The petitioner has stated that at the time of accident he was 51 years of age.
Prior to the accident he was possessing sound mind and health and robust physique. He was not suffering from any kind of ailment. He was working as a labourer at Hosiery Complex, Noida and earning Rs. 15,000/ p.m. He further stated that he was not able to work from the date of accident till date as he is bed ridden due to head injuries sustained in the accident.
During crossexamination he denied that he was not working as a labour at Hosiery Complex, Noida and was not earning Rs. 15,000/ p.m. He admitted that in his petition, he had mentioned in para 6 that his monthly Petition no. : 166/17 7/15 Sunil Kumar Singh vs. Prasadi & Ors.
income was Rs. 10,000/ p.m. He further admitted that he has not worked in Delhi prior to the accident. He voluntarily stated that he was working in Noida. He denied the suggestion that he has recovered from the injuries sustained in the accident and he is in a position to work for gain.
PW1 Dr. Deepa Dash, during her crossexamination has stated that the petitioner has suffered 90% physical impairment with respect to his whole body. On asking that what would be the overall impact on the petitioner of 90% disability, PW1 has stated that the petitioner would have motor (day to day movement of his legs and body) deficit which will hamper his ambulation and ability to do physical activities. Further, he would be dependent on others for his activities of daily living and cannot be engaged in any kind of employment, work or activities. She further deposed that it is unlikely that the petitioner would improve with medication and physiotherapy.
During her crossexamination ld. counsel for the insurance company put a question to this witness whether she could elaborate on the moderate impaired mental status of the petitioner and the witness said that the term can be elaborated by Dr. Ashima Nehra who is a Neuro Psychologist and was a member of the Assessment Board. Accordingly, Dr. Ashima Nehra was summoned.
PW3 Dr. Ashima Nehra was put the question as to what does 'moderately impaired mental status' mean, to which she answered that as per the Gazette of India, Point 7.3, Table 2, it means that the patient has an IQ range of 3549. She further stated that the IQ range of the petitioner was evaluated as 39. She also stated that the IQ level of a normal person is 90
110. She further stated that there is no chance of improvement as the Petition no. : 166/17 8/15 Sunil Kumar Singh vs. Prasadi & Ors.
petitioner has moderately impaired mental retardation. She further stated that there may be improvement but only by a few IQ points. Further even with the passage of time and treatment, the IQ points may increase maximum upto 1015, meaning thereby that in the case of the petitioner, it may increase in the best circumstances upto 4954. She voluntarily stated that even in that case the petitioner would not be functionally independent. She further stated that the petitioner would be dependent on others for his daily course. Answering the question as put by the Court, she stated that with the present condition, the petitioner cannot be employed for work for gain.
In the present case the petitioner has not filed on record any document to show that he was working as a labour at Hosiery Complex, Noida. He stated that at the time of accident he was working at Noida, U.P. Therefore, this Tribunal has no option but to take minimum wages of U.P. for an 'unskilled person' which on the date of accident were Rs. 7,214/ p.m. It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" that in the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. Reference was also made of the case "Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343". The petitioner has 90% permanent physical impairment with respect to his whole body. During the course of arguments ld. counsel for the insurance company submitted that as in the report the Medical Board has replaced the word 'severally' with the word 'moderately' and the condition of the petitioner has been shown as 'moderately impaired mental Petition no. : 166/17 9/15 Sunil Kumar Singh vs. Prasadi & Ors.
status', the disability of the petitioner should not be taken as 100%. I am not convinced with this contention of ld. counsel for the insurance company. The Tribunal has to consider the functional disability of the petitioner to see as to how the earnings of the petitioner would be affected. To my mind, with the disability on record, the petitioner would not be able to do the work of a labour. He shall be totally dependent upon others. Therefore, his disability must be taken as 100%. As per the Aadhar card, the year of birth of the petitioner is 1965. The accident took place on 07.12.2016 therefore, he was 51 years of age at the time of accident. Taking a multiplier of '11', the loss of income/future loss of income comes to Rs.7,214 x 12 x 11 x 100% = Rs.9,52,248/ which is rounded off to Rs.9,52,300/. I therefore, award Rs.9,52,300/ to the petitioner towards loss of income/future Income.
17. Loss of Amenities and Married Life : Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his daily life to pursue his talents, recreation interest, hobbies and evocations. The injuries would also have an affect on his social and married life. I therefore, award Rs. 3,00,000/ to the petitioner towards loss of amenities and married life.
18. Thus, the total compensation awarded in favour of the petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 24,000/
PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 5,00,000/
SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 1,00,000/
LOSS OF INCOME/FUTURE INCOME : Rs. 9,52,300/
Petition no. : 166/17 10/15
Sunil Kumar Singh vs. Prasadi & Ors.
LOSS OF AMENITIES & MARRIED LIFE : Rs. 3,00,000/
============
TOTAL : Rs. 18,76,300/
============
L I A B I L I T Y
19. As the offending vehicle was being driven by respondent no. 1, primary liability to compensate the petitioner remains with respondent no. 1. Since the vehicle was owned by respondent no.2, he is vicariously liable to compensate the petitioner. It is an admitted position on record that the vehicle was insured with respondent no.3, therefore, respondent no.3 is contractually liable to compensate the petitioner.
20. Issue no. 2 is decided in favour of the petitioner and against the respondent no.3.
R E L I E F
21. In view of my findings, I award Rs. 18,76,300/ (Rs. Eighteen Lakh Seventy Six Thousand Three Hundred only) to the petitioner as compensation alongwith interest @9% per annum from the date of filing the petition till its realisation.
Out of the awarded amount, a sum of Rs. 17,00,000/ is directed to be kept in the form of fixed deposit in the following phased manner :
1. Rs. 1,00,000/ for a period of 01 years.
2. Rs. 1,00,000/ for a period of 02 years.
3. Rs. 1,00,000/ for a period of 03 years.
4. Rs. 1,00,000/ for a period of 04 years.
5. Rs. 1,00,000/ for a period of 05 years.
6. Rs. 1,00,000/ for a period of 06 years.Petition no. : 166/17 11/15
Sunil Kumar Singh vs. Prasadi & Ors.
7. Rs. 1,00,000/ for a period of 07 years.
8. Rs. 1,00,000/ for a period of 08 years.
9. Rs. 1,00,000/ for a period of 09 years.
10. Rs. 1,00,000/ for a period of 10 years.
11. Rs. 1,00,000/ for a period of 11 years.
12. Rs. 1,00,000/ for a period of 12 years.
13. Rs. 1,00,000/ for a period of 13 years.
14. Rs. 1,00,000/ for a period of 14 years.
15. Rs. 1,00,000/ for a period of 15 years.
16. Rs. 1,00,000/ for a period of 16 years.
17. Rs. 1,00,000/ for a period of 17 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
22. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
23. As per orders of Hon'ble High Court in case titled "New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as "Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimant.
24. In consonance to the idea by which part of the awarded amount is ordered to Petition no. : 166/17 12/15 Sunil Kumar Singh vs. Prasadi & Ors.
be kept in fixed deposit / savings account by Hon'ble High Court, respondent no.3 is directed to deposit the awarded amount in favour of the petitioner with State Bank of India, Saket Courts Complex Branch, against account of petitioner within a period of 30 days from today, failing which respondent no.3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
25. The respondent no.3 is directed to credit the amount directly to the MACT account of State Bank of India, District Court, Saket branch. Details of the bank i.e. IFSC code etc. have been provided to the ld. counsel for the insurance company.
26. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :
1. The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of their saving bank account with State Bank of India, Saket Court Branch, New Delhi.
2. Withdrawal from the aforesaid account shall be permitted to petitioner/claimant after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
3. No cheque book be issued to petitioner/claimant without the permission of this Court.
4. The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioner/claimant alongwith the photocopy of the FDR's .
5. The original fixed deposit receipts shall be handed over to petitioner/claimant at the end of the fixed deposit period.
6. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
7. Half yearly statement of account be filed by the Bank in this Court.
Petition no. : 166/17 13/15Sunil Kumar Singh vs. Prasadi & Ors.
8. On the request of petitioner/claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
9. Petitioner/claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
10. The bank is also directed to get the nomination form filled by the claimant at the time of preparation of FDRs.
11. The bank is also directed to keep the money received from the respondents in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
12. The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioner from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 4112541127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/NEFT directly in the personal bank account of the petitioner of the bank nearest to his place of residence, the details of which have been given by the petitioner to the Tribunal and same details shall be given by him to the Manager SBI, District Court Saket branch.
DIRECTIONS FOR THE RESPONDENT No. 327. The Respondent no.3 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
28. The Respondent no.3 is directed to furnish a copy of this award to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant/petitioner in whose favour the award has been passed.
Petition no. : 166/17 14/15Sunil Kumar Singh vs. Prasadi & Ors.
29. The Respondent no.3 shall intimate the claimant/petitioner about its having deposited the award amount in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
30. Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after his having received the notice of the deposit of awarded amount by the respondent no.3.
31. Copy of this Award / Judgment be given to the parties for compliance.
32. The case is now fixed for compliance by the respondent no.3 for 10.10.2018.
Digitally signed by SAMEER SAMEER BAJPAI
BAJPAI Date:
2018.09.10
Announced in the Open Court 15:21:29 +0530
on 10th day of September, 2018 (SAMEER BAJPAI)
Presiding Officer : MACT (S)
Saket Courts New Delhi
Petition no. : 166/17 15/15