Delhi District Court
Smt. Manisha Arora vs Sh. Suresh Kumar S/O Sh. Roshan Lal on 26 March, 2010
IN THE COURT OF SHRI GURVINDER PAL SINGH
JUDGE,MOTOR ACCIDENT CLAIMS TRIBUNAL(WEST)
TIS HAZARI COURTS,DELHI
Suit No. 345/08(New)
Old No. 956/06__
Smt. Manisha Arora
w/o Sh. Sunil Arora,
R/o 73-C/GH-10, Sunder Appartment,
Paschim Vihar, New Delhi
......Petitioner/Claimant
Versus
1. Sh. Suresh Kumar s/o Sh. Roshan Lal
R/o L-47, Wazirpur, J.J.Colony, Delhi(Driver)
2. M/s S.G.Travels Pvt. Ltd, D-10, DSIDC Work Centre,
Kalyanpuri, Delhi-91. (owner)
3. National Insurance Co. Ltd.
Issuing Office:2881, Hardhyan Singh Road, Karol Bagh,
New Delhi-5(Insurer)
.....Respondents
Date of filing of the petition : 04/12/06
When reserved for judgment : 10/03/10
Date of final judgment/award : 26/03/10
Appearances :-
For claimant/ petitioner : Sh. Puneet Sachdeva Advocate
Chamber No. 594,Western Wing, Tis
Hazari, Delhi.
For respondent No.1 : Sh. S. S. Sidhu, Advocate
For respondents No.2 : Sh. Manohar Lal & Sh. Arun Kr.Yadav
Advocates, Chamber No. X-1,Civil Side,
Tis Hazari, Delhi
For respondent No.3 : Ms. Mamta Mayer Advocate,
Chamber No. 388, Patiala House Court
New Delhi.
Suit No.345/08(New) & Suit No.361/08(New) Page 1/13
Suit No. 361/08(New)
Old No. 957/06__
Smt. Bhenee Arora,
w/o Sh. Sameer Arora,
R/o 73-C/GH-10, Sunder Appartment,
Paschim Vihar, New Delhi
......Petitioner/Claimant
Versus
1. Sh. Suresh Kumar s/o Sh. Roshan Lal
R/o L-47, Wazirpur, J.J.Colony, Delhi(Driver)
2. M/s S.G.Travels Pvt. Ltd, D-10, DSIDC Work Centre, Kalyanpuri, Delhi-91. (owner)
3. National Insurance Co. Ltd.
Issuing Office:2881, Hardhyan Singh Road, Karol Bagh, New Delhi-5(Insurer) .....Respondents Date of filing of the petition : 04/12/06 When reserved for judgment : 10/03/10 Date of final judgment/award : 26/03/10 Appearances :-
For claimant/ petitioner : Sh. Puneet Sachdeva Advocate Chamber No. 594,Western Wing, Tis Hazari, Delhi.
For respondent No.1 : Sh. S. S. Sidhu, Advocate
For respondents No. 2 : Sh. Manohar Lal & Sh. Arun Kr.Yadav
Advocates, Chamber No. X-1,Civil Side,
Tis Hazari, Delhi
For respondent No.3 : Ms. Mamta Mayer Advocate,
Chamber No. 388, Patiala House Court
New Delhi.
JUDGMENT/ AWARD
Vide this judgment, I shall dispose off two claim petitions bearing (1) Suit No. 345/08 (New) and 956/06(Old) titled as Smt. Manihsa Arora Vs. Sh.Suresh Kumar & Ors. and (2)Suit No. 361/08(New) and 957/06(Old), titled as Smt. Bheene Arora Vs. Sh. Suresh Kumar & Ors,since these two claim petitions have been consolidated in terms of order dated 07/07/08 by Ld. Predecessor as Suit No.345/08(New) & Suit No.361/08(New) Page 2/13 they had arisen out of the same accident which had taken place on 12/11/06, while the claim petition Suit No. 345/08(New), 956/06(Old) has been treated as leading case.
2. Both petitions under section 166 & 140 of the Motor Vehicles Act 1988 were filed by two petitioners claiming compensation of Rs. 10,00,000/- each respectively from the respondents for the injuries sustained by them.
3. Brief resume of facts of the cases of the petitioners is as follows. On 12/11/06 at about 12.15 a.m. (night), the petitioners were sitting in the Santro Car No. DL-4C-P-9143, driven by Sh. Sameer Arora at a slow speed at his correct left side of the road at GH-12, Paschim Vihar. A Tata Indica Car bearing No. DL1YA-2178, driven by respondent No.1 at high speed, rashly and negligently came from National Market, Peeragarhi Village side and hit the said Santro Car from the left back side. The Santro Car turned turtle. Petitioners and their family members sustained grievous injuries.
4. Respondents No.1, 2 & 3 are common in both the claim petition and are driver, owner and insurer respectively of the offending vehicle.
5. Summons were issued to all the respondents.
6. All the respondents filed the written statements and denied the claim of the petitioners.
7. Respondent No.3, insurer has however, admitted the fact that vehicle bearing registration No. DL-1YA-2178 was insured with it vide policy No. 360501/6300010240/05 valid from 18/02/06 to 17/02/07.
8. Vide order dated 27/07/07 in both abovesaid cases, following issues were framed by my Ld. Predecessor.
1.Whether the petitioner had sustained injuries 12.11.2006 at about 12.15 a.m(night) at GG-14, Chowk, Paschim Vihar, Delh due to rash and negligent driving of respondent No.1 while driving vehicle No. DL-1YA-2178?Suit No.345/08(New) & Suit No.361/08(New) Page 3/13
2.Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
3. Relief.
9. Sh. K.D. Sharma as PW-1; Smt. Manisha Arora, petitioner as PW-2 and Smt. Bheene Arora, petitioner as PW-3 are the examined petitioner(s) witnesses. In terms of order dated 05/05/09, since no further evidence was being led by petitioners after examination of PW-1, the petitioners have been held not entitled to interest w.e.f 05/05/09 till 16/12/09(the date of completion of petitioner's evidence).
10. Sh. Ravi Dutt as R3W1 and Sh. P.K. Bakshi as R3W2 are the examined respondent, insurer witnesses.
11. I have heard the Ld. Counsels for the parties, perused the record and given my thoughts to the rival contentions put forth. My issue wise findings are as under:-
ISSUE NO.1 IN BOTH CASES
12. Petitioners PW-2 & PW-3 reiterated the averments of the claim petition. They testified that on the fateful night they were sitting in the Santro Car No. DL-4C-P-9143, driven by Sh. Sameer Arora at a slow speed at his correct left side of the road. When they had reached at GH-14, Chowk Paschim Vihar, a Tata Indica Car bearing No. DL1YA-2178, driven by respondent No.1 at high speed, rashly and negligently came from National Market, Peeragarhi Village side and hit the said Santro Car from the back side of the window with great force. The Santro Car turned turtle. Petitioners and their family members sustained grievous injuries and were removed to Maharaja Agarsen Hospital, Punjabi Bagh, from where they were shifted to Vasant Lok Hosital.Suit No.345/08(New) & Suit No.361/08(New) Page 4/13
13. Neither respondent No.1 has entered in the witness box to testify in contrary to the versions of PW-2 & PW-3 nor there is anything on record to discard or disbelieve the testimonies of PW2 & PW-3 either in toto or in particular.
14. A driver behind wheels of a mechanically propelled vehicle is under bounden duty to observe necessary caution for avoiding striking other vehicles, persons, the users of the road ahead. Having failed to observe such bounden duty and having struck the Santro Car of petitioners, causing injuries to Smt. Manisha Arora and Smt. Bheene Arora , respondent No.1 was berserk locomotion and thus negligent.
15. The versions of PW2 & PW-3, is lent corroboration by the version emanating from the certified copy of the charge-sheet, Ex. P1of case FIR No. 1212/06 u/s 279/338 IPC, P.S.Paschim Vihar, in terms of which the investigating agency opined that the respondent No.1 had committed the said offences and was responsible for the injuries on the person of petitioners abovesaid caused by his rash and negligent driving.
16. Aforesaid discussions lead me to the conclusion that the petitioners have been able to prove that they had sustained injuries due to rash and negligent driving of respondent No.1. Issue No.1 is decided in favour of the petitioners and against the respondents in both claim petitions.ISSUE NO. 2
17. I shall be deciding this issue in both petitions No. 345/08(New) & 361/08(New) separately and my findings are as under:- ISSUE NO. 2 IN SUIT NO. 345/08(NEW)
18. The petitioner has claimed Rs. 10,00,000/-( Rupees Ten Lakhs)as compensation for the injuries sustained by her. Let me now assess the compensation to which the petitioner is entitled to under different heads?Suit No.345/08(New) & Suit No.361/08(New) Page 5/13
COMPENSATION FOR THE EXPENSES INCURRED ON MEDICAL TREATEMENT
19. The petitioner has placed on record the medical bills, Ex. PW2/10(colly). Total of these bills comes to Rs. 3,09,454/- The petitioner is, therefore, entitled to sum of Rs. 3,09,454/-as compensation for her medical expenses COMPENSATION FOR ACUPUNCTURE TREATMENT EXPENSES
20. The petitioner has placed on record the bills, Ex. PW2/11, for acupuncture treatment expenses of Rs. 37,100/-. The petitioner is, therefore, entitled to sum of Rs. 37,100/- as compensation for acupuncture treatment expenses.
COMPENSATION FOR PHYSIOTHERAPY TREATMENT EXPENSES
21. The petitioner has placed on record the bills, Ex. PW2/12 for physiotherapy treatment expenses of Rs. 4,600/-. The petitioner is, therefore, entitled to sum of Rs. 4,600/-as compensation for physiotherapy treatment expenses COMPENSATION FOR CONVEYANCE CHARGES
22. As per discharge card, Ex.PW2/2 of Vasant Lok Hospital, the petitioner was admitted there on 12/11/06 till 10/12/06 while she sustained head injury, fracture of base of skull c meningitis.
23. Though there is no cogent evidence on record for the money spent by the petitioner for conveyance,yet considering the nature of injuries suffered by her, period of hospitalization elicited above and the treatment received, I am of the opinion that she must have spent some sum under this head. Petitioner is accordingly held entitled for sum of Rs. 10,000/- for expenses incurred on conveyance charges.
COMPENSATION FOR SPECIAL DIET CHARGES Suit No.345/08(New) & Suit No.361/08(New) Page 6/13
24. Though there is no cogent evidence on record for the money spent by the petitioner for special diet charges,yet considering the nature of injuries suffered by her, period of hospitalization elicited above and the treatment received, I am of the opinion that she must have spent some sum under this head. Petitioner is accordingly held entitled for sum of Rs. 10,000/- for expenses incurred on special diet charges.
COMPENSATION FOR ATTENDANT CHARGES
25. Though there is no cogent evidence on record for the money spent by the petitioner for attendant charges, yet considering the nature of injuries suffered by her, period of hospitalization elicited above and the treatment received, I am of the opinion that she must have spent some sum under this head. Petitioner is accordingly held entitled for sum of Rs. 10,000/- for expenses incurred on attendant charges.
COMPENSATION FOR LOSS OF INCOME
26. Petitioner has proved her mark statements for passing class 10th; class 12th and the mark statement of passing bachelor of Arts examination as, Ex.PW2/16(colly.). Petitioner testified that she was employed as Receptionist with Bentex, new name as RC Energy Metering Private Ltd at Naraina Industrial Area, Phase-II, New Delhi. Though petitioner has placed on record her appointment letter, the certificate of pay and the certificate of employer of having rejoined the employer after accident on 02/04/08 but she has not examined her employer or the scribe of these documents to prove these aforesaid documents. Petitioner has also not proved on record any medical certificate of any medical practitioner for bed rest advised for period upto 02/04/08. In the absence of any cogent evidence on record, the monthly income of the petitioner can be taken to be minimum wage of a graduate person as notified by Delhi Government and the same was Rs. 4072/- at the Suit No.345/08(New) & Suit No.361/08(New) Page 7/13 time of accident. As the petitioner has suffered injuries herein above said and period of hospitalization, it can be presumed that she could not have done her work for about 8 months. The petitioner is therefore entitled to Rs. 32,576/-( Rs. 4072/- x 8) as compensation for loss of income.
COMPENSATION FOR PAIN AND SUFFERING
27. In the present case, keeping in mind the facts and circumstances of the case and the fact that the petitioner had sustained grievous injuries, elicited above, I am of the opinion that the sum of Rs. 20,000/- as compensation for pain and suffering will be sufficient to meet the ends of justice. COMPENSATION FOR LOSS OF AMENITIES OF LIFE
28. In the present case, keeping in mind the facts and circumstances of the case and the fact that the petitioner had sustained grievous injuries, elicited above, I am of the opinion that the sum of Rs. 20,000/- as compensation for loss of amenities of life will be sufficient to meet the ends of justice.
29. In view of the above discussions the total compensation to which the petitioner is entitled to comes as under:-
1. Compensation for medical expenses Rs. 3,09,454/-
2. Compensation for acupuncture treatment expenses Rs. 37,100/-
3. Compensation for physiotherapy treatment expenses Rs. 4,600/-
4. Compensation for conveyance Rs. 10,000/-
5. Compensation for special diet Rs. 10,000/-
6. Compensation for attendant charges Rs. 10,000/-
7. Compensation for loss of income Rs. 32,576/-
8. Compensation for Pain and suffering Rs. 20,000/-
9. Compensation for loss of amenities of life Rs. 20,000/-
____________ Rs. 4,53,730/-
____________
30. In view of the above discussion I am of the opinion that the petitioner Suit No.345/08(New) & Suit No.361/08(New) Page 8/13 Smt. Manisha Arora is entitled to a sum of Rs. 4,53,730/- as compensation with interest @ 7.5 % per annum from the date of filing of the petition till the date of notice of deposit to the claimant with a copy to her counsel against receipt (excluding the period w.e.f. 05/05/09 till 16/12/09) from the respondents. CLAIM IN SUIT NO. 361/08(NEW)
31. The petitioner has claimed Rs. 10,00,000/- (Rupees Ten Lakhs) as compensation for the injuries sustained by her. Let me now assess the compensation to which the petitioner is entitled to under different heads? COMPENSATION FOR THE EXPENSES INCURRED ON MEDICAL TREATEMENT
32. The petitioner has placed on record the medical bills,Ex. PW3/2. Total of these bills comes to Rs. 26,565/- The petitioner is, therefore, entitled to sum of Rs. 26,565/- as compensation for her medical expenses COMPENSATION FOR CONVEYANCE & SPECIAL DIET CHARGES
33. As per the discharge card, Ex. PW3/1, the petitioner was admitted in Vasant Lok Hospital w.e.f 12/11/06 till 15/11/06 and had suffered head injuries c Gastritis.
34. Though there is no cogent evidence on record for the money spent by the petitioner for conveyance & special diet charges,yet considering the nature of injuries suffered by her, period of her hospitalization elicited above and the treatment received, I am of the opinion that she must have spent some sum under this head. Petitioner is accordingly held entitled for sum of Rs. 10,000/- for expenses incurred on conveyance and special diet charges. COMPENSATION FOR LOSS OF INCOME
35. Petitioner has proved her Degree of B.A. (English Hons.) and Degree of M.A(English), Ex.PW3/4(colly.). Petitioner, PW-3 testified that she was employed with Vikas Valley Public School and was also house wife and Suit No.345/08(New) & Suit No.361/08(New) Page 9/13 earning Rs. 5000/- per month. Petitioner has not placed on record any document regarding her monthly salary, employment nor has examined her employer nor has led any cogent evidence on this count. In the absence of any cogent evidence on record, the monthly income of the petitioner can be taken to be minimum wage of a graduate person as notified by Delhi Government and the same was Rs. 4072/- at the time of accident. As the petitioner has suffered injuries herein above said and considering her period of hospitalization, it can be presumed that she could not have done her work for about 2 months. The petitioner is therefore entitled to Rs. 8144/-( Rs. 4072/- x 2) as compensation for loss of income.
COMPENSATION FOR PAIN AND SUFFERING &LOSS OF AMENITIES OF LIFE
36. In the present case, keeping in mind the facts and circumstances of the case and the fact that the petitioner had sustained injuries, elicited above, I am of the opinion that the sum of Rs. 20,000/- as compensation for pain and suffering and loss of amenities of life will be sufficient to meet the ends of justice.
37. In view of the above discussions the total compensation to which the petitioner is entitled to comes as under:-
1. Compensation for medical expenses Rs. 26,565/-
2. Compensation for conveyance & special diet Rs. 10,000/-
3. Compensation for loss of income Rs. 8,144/-
4. Compensation for Pain and suffering for loss of amenities of life Rs. 20,000/-
____________ Rs. 64,709/-
____________
38. In view of the above discussion I am of the opinion that the petitioner Smt. Bheene Arora is entitled to a sum of Rs. 64,709/- as compensation Suit No.345/08(New) & Suit No.361/08(New) Page 10/13 alongwith interest @ 7.5 % per annum from the date of filing of the petition till the date of notice of deposit to the claimant with a copy to her counsel against receipt (excluding the period w.e.f. 05/05/09 till 16/12/09) from the respondents. LIABILITY
39. Ld. counsel for insurer argued that since as on the date of accident, the driving licence of respondent No.1 stood expired, insurer was not liable to pay compensation sum and prayed for grant of recovery rights against owner.
40. In terms of law laid in the case of National Insurance Company Ltd Vs Swaran Singh & Ors reported in 2004 A CJ 1, it is trite that where the insurers relying upon the violations of the provisions of law by the assured takes an exception to pay the assured or third party , they must prove a willful violation of the law by the assured.
41. R3W1 Sh. Ravi Dutt, LDC in Motor Licensing Authority, Wazir Pur has proved the computerized copy record of driving license No. C08121999158442 in the name of respondent No.1 as Ex. R3W1/A(colly). In terms of the aforesaid documents, the driving license of respondent No.1 was valid upto 19/03/2000. R3W1 testified that since the said date of expiry of driving license, it was not got renewed.
42. R3W2, Sh. P.K. Bakshi has proved Insurance Policy of vehicle in question as Ex. R3W1/4; notice u/o 12 R 8 CPC, Ex. R3W1/2, sent vide postal receipt, Ex. R3W1/3 to vehicle owner and driver.
43. Since the insurer has proved by the aforesaid evidence on record that as on the date of accident. i.e. 12/11/06, the driving license of respondent No.1 stood expired, the insurer is not liable to pay the compensation. However, in terms of law laid in cases of Ishwar Chandra & Ors Vs. Oriental Insurance Company Ltd. & Ors., reported in II (2007) ACC 63(SC), let the insurer pay the award sum to the claimants and recover later from the owner of the offending Suit No.345/08(New) & Suit No.361/08(New) Page 11/13 vehicle from this forum as per law without instituting or filing any separate civil suit. Insurer is granted recovery rights accordingly. ' RELIEF IN SUIT NO. 345/08NEW)
44. In view of the aforesaid discussion, I am of the opinion that the petitioner Smt. Manisha Arora is entitled to a sum of Rs. 4,53,730/- as compensation with interest @ 7.5 % per annum from the date of filing of the petition till the date of notice of deposit to the claimant with a copy to her counsel against receipt (excluding the period w.e.f. 05/05/09 till 16/12/09) from the respondents, payable by insurer. Insurance Company is granted recovery rights and is entitled to recover the award sum with interest at same rate till realization from respondent No.2 , the owner of the offending vehicle, after making the payment to the claimant/ petitioner, through this Tribunal without being required to file any separate civil suit.
RELIEF IN SUIT NO. 361/08 (NEW)
45. In view of the above discussion, I am of the opinion that Smt. Bheene Arora is entitled to a sum of Rs. 64,709/- as compensation with interest @ 7.5 % per annum from the date of filing of the petition till the date of notice of deposit to the claimant with a copy to her counsel against receipt (excluding the period w.e.f. 05/05/09 till 16/12/09) from the respondents, payable by insurer. Insurance Company is granted recovery rights and is entitled to recover the award sum with interest at same rate till realization from respondents No.2 , the owner of the offending vehicle, after making the payment to the claimant/ petitioner, through this Tribunal without being required to file any separate civil suit.
46. In terms of directions contained in case of UOI Vs. Nanisiri, in MAC Appeal No. 682/2005, order dated 13/01/2010, of Hon'ble Mr. Justice J. R. Midha, Respondents No.3, Insurance Company is directed to directly deposit Suit No.345/08(New) & Suit No.361/08(New) Page 12/13 the award sum with ,State Bank of India (SBI), Tis Hazari within 30 days through its nodal officer Mr. H.S. Rawat, Relationship Manager, Tis Hazari Branch (Mb: 09717044322) and the Manager concerned of SBI, Tis Hazari Court to release the said amount by transferring the same to the Saving Bank Account of the victims /claimants. Insurance Company to also file proof of deposit of award sum, also within said period. Manager SBI, Tis Hazari to also furnish compliance report within 15 days of deposit of award sum. Claimants to do the necessary formalities in respect of the bank account(s). Ahlmad to keep the copy of Award in a miscellaneous file for awaiting compliance report from all concerned, which be put up on 11/05/10. Civil Nazir to send the copy of award with a set of photographs specimen signatures, residence address and address proof of claimants to concerned Manager, SBI against receipt for compliance.
Inquiry file be consigned to Record Room.
Announced in open court (Gurvinder Pal Singh)
today i.e. 26/03/10. Judge, MACT(West)
Delhi.
Suit No.345/08(New) & Suit No.361/08(New) Page 13/13