Delhi District Court
Sh. Vikas Sharma vs Jagdish Prasad Ram on 29 August, 2009
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IN THE COURT OF SHRI GURVINDER PAL SINGH
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL(WEST)
TIS HAZARI COURTS,DELHI
Suit No. 303/08
Sh. Vikas Sharma
s/o Sh. Vinod Kumar Sharma
R/o H. No. 1228, Vivekanand Nagar,
Ghaziabad, Uttar Pradesh
........PETITIONER
VERSUS
1. Jagdish Prasad Ram
s/o Sh. Jokhu Ram
r/o RZ-K-2, Nihal Vihar,
Nangloi, Delhi (Driver & Owner)
Also at: 3, Cottage Enclave,
A-4, Paschim Vihar, Delhi.
2. National Insuance Company Ltd.
2881, Hardian Singh Road,
Karol Bagh, New Delhi -110005.(Insurer)
..........RESPONDENTS
Date of filing of the petition : 21/04/07 When reserved for judgment : 17/08/09 Date of final award : 29/08/09 JUDGMENT / AWARD
Petitioner has claimed Rs. 25,00,000/- (Rupees Twenty Five Lakhs) as compensation vide claim petition u/s 166/140 Motor Vehicle Act, for sustained grievous injuries and suffered permanent disability having met with road accident on 08/01/07 at 6.30 p.m, opposite Sahdev Park Service Road, 2 near PWD Office, Multan Nagar, Paschim Vihar, Delhi, when he was going on foot and motor cycle No. DL6SQ-6870, driven by respondent No.1 at high speed, rashly and negligently hit him from behind.
2. Respondents No. 1 & 2 are the driver-cum-owner and insurer respectively of the offending vehicle.
3. Summons were served upon the respondents. Respondent No.1 did not file any written statement. Ld. Counsel for respondent No.1 gave his statement on 17/09/07 before my Ld. Predecessor for not wanting to file written statement.
4. Written statement was filed by respondent No.2, insurer denying the claim of the petition. However, respondent No.2 has admitted the fact that vehicle i.e. Motor Cycle No. DL-6S-Q-6870 was insured with it vide Policy No. 360501/6200000400/06 valid from 18/04/06 to 17/04/07 and has submitted that claimed sum of compensation and interest was exorbitant.
5. Vide order dated 19/09/07 of my Ld. Predecessor, the petitioner was awarded interim compensation of Rs. 25,000/- alongwith interest @ 7.5% per annum from the date of filing of the petition till its realization. Also vide order dated 19/09/07, following issues were framed by my Ld. Predecessor.
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1. Whether the petitioner has sustained injuries in the accident on 08/01/2007 at about 6.30 p.m., Opposite Sahdev Park Service Road, near PWD Office, Multan Nagar, Paschim Vihar, New Delhi due to rash and negligent driving of respondent No.1 Sh. Jagdish Prasad Ram while driving Motor Cycle bearing registration No. DL-6S-Q-6870?
2. Whether the petitioner is entitled for any compensation. If so, to what amount and from whom?
3. Relief.
6. Petitioner examined Sh. Harsh Mahan Johri Advocate as PW1;Sh. Surinder Kumar as PW-2; his wife Smt. Meenu Sharma as PW-3; himself as PW-4; Dr. Sanjeev Rustogi as PW-5 & Dr. A. C. Tiwari as PW-6 in petitioner evidence.
7. No respondent evidence was led despite opportunity.
8. I have heard the arguments of the petitioner and Ld. Counsels for respondents at length and have perused the record including written arguments filed and precedents relied. I have also given my thoughts to the rival contentions put forth.
9. Ld. Counsel for insurer, respondent No.2 has relied upon (1) Divisional Controller KSRTCVs. Mahadeva Shetty, reported in AIR 2003 S.C. 4172; (2)Syed Basheer Ahamed & Ors Vs. Mohd. Jameel & Anr, 4 reported in 2009 ACJ 690; (3)Sh. Saurabh Mahajan Vs. Sh. Sandu Ram decided by Sh. Pradeep Chaddah, P.O. MACT,Delhi ; (4) D. Satyavathi Vs. S. Appa Rao & Ors, reported in 1999 ACJ 237; (5) Kanakanagouda & Ors Vs. Devaraddi & Anr, reported in II (2007) ACC 615; (6) Subhash Chand Vs. Rulda Singh & Anr, reported in II(2007) ACC 776; (7)Suraj Prakash Khanna Vs. Balbir Singh & Ors, reported in I(2008) ACC 468; (8) Bhura Vs. Manohar Singh & Ors, reported in II (2006) ACC 13; (9) United India Insurance Company Limited Vs. Yallappa Bhimappa Alagudi & Anr, reported in II(2006) ACC 15; (10) Harvinder Singh @ Jangoo Vs. Amarjeet Kaur & Ors, reported in II (2006) ACC 369; (11) P.R. Sharma V. Avneesh Kumar, reported in 2008 ACJ 1670; (12) C.S.S. Rao Vs. Rajesh & Ors, reported in II(2008) ACC 624; (13) M. Jayanna Vs. K. Radha Krishna Reddy, reported in 2005ACJ 344;(14) National Insurance Co. Ltd Vs. Sebastian K. Jacob, reported in 2009(2) T.A.C. 617(S.C.) & (15)Oriental Insurance Co. Ltd Vs. R. Swaminathan & Ors, decided by Hon'ble Supreme Court on 14/02/06 in Civil Appeal No. 2715 of 2002. It has been submitted by insurer counsel that claim of thepetitioner is exorbitant and in terms of law laid in the case of Mahadeva Shetty(supra), it has to be just and it cannot be a bonanza nor is expected to be a pittance.
10. Petitioner has relied upon (1) Madhya Pradesh State Road Transport Corporation & Anr Vs. Priyank, reported in 2000 ACJ 701; (2) Vrajesh Navnitlal Desai Vs. K. Bagyam & Anr, reported in 2006 ACJ 65; (3) DTC Vs.Meena Chaturvedi & Ors, reported in 2006 ACJ 406; (4) Helen C. 5 Rebello & Ors Vs. Maharashtra State Road Transport Corporation & Anr, reported in 1999 ACJ 10; (5) O.I.C. Ltd Vs. Surendra Umrao & Anr, reported in II(2007) ACC 370(DB) (6) New India Assurance Co. Ltd Vs. K. Kanagasabapathy & Ors, reported in 2004 ACJ 1577; (7) United India Insurance Co. Ltd Vs. Udaysinh Chandansinh Thakkor & ors , reported in 2006 ACJ, 2750; (8) Quraisha Bibi Vs. Shipping Corporation of India Ltd, reported in 2003 ACJ 1942; (9) Rajasthan State Road Transport Corporation Vs. Nand Kishore & Ors, reported in 2002 ACJ 1564; (10) Rajasthan State Road Transport Corporation & Anr Vs. Devi Lal & Ors, reported in 1990 (I) TAC 672; (11) Pt. Parmanand Katara Vs. U.O.I & Ors, reported in AIR 1989 SC 2039; (12) Madamanchi Ramappa & Anr. Vs. Muthaluru Bojjappa, reported in AIR 1963 SC 1633; (13) Somnna & ors Vs. Subbarao & Anr., reported in AIR 1958 A.P.200; (14) United India Insurance Co. Ltd Vs. Harminder Singh & Ors, reported in 2005 RAR 429; (15) Harminder Singh Vs. Gopal Singh & Ors, reported in 2005 RAR 280; (16) Prabhu Mehta Vs. Jagganath & Ors, reported in III(2004) ACC 82; (17) Amar Singh Vs. Samsher Khan & ors, reported in I (2007) ACC 408; (18)K.P. Muhammed Vs. Devassia & Ors, reported in III (2003) ACC 475; (19)Muthaiah Sekhar Vs. Nesamony TPT. Corporation Ltd & Anr, reported in II(1998) ACC 324(SC); (20) National Insurance Co. Ltd. Jabalpur Vs. Kans Ram & Ors, reported in 2001(3) TAC 382(M.P); (21) Himachal Road Transport Corporation & Anr Vs. Ganeshwar Sharma & Anr, reported in 2001(3) TAC 386(H.P.); (22) G. Pitchaiah Naidu Vs. Andhra Pradesh State Electricity Board & Anr , reportedin 2001(2) TAC 86(AP); (23) Union of India Vs. 6 Oswald Anthony Athayde & Ors, reported in 2005(3) T.A.C.170(Bom.); (24)Rajasthan State Road Transport Cor. Jaipur and Anr V. Mangal Singh, reported in 2003(3) TAC 458(Raj); (25) Madan lal Chandna Vs. Rajasthan State Transport Cor. Jaipur, reported in 2002(1) T.A.C. 457(P& H); (26) Kamal Kumar Jain Vs. Tazuddin, reported in III(2004) ACC 79; (27)Nagappa Vs. Gurudyal Singh & Ors , reported in 2003 ACJ 12(SC);(28) NIC Ltd. Vs. Laxmi Narayan Dhutt, reported in IV(2007) SLT 102; (29) Ginni Devi & ors Vs. Union of India & Ors, reported in 2008 ACJ 1572. My issue- wise findings are as under:-
ISSUE NO.1
11. Petitioner as PW-4 reiterated the averments of the claim petition in his testimony. PW-4 tesified that on the fateful evening and at place of occurrence he was on foot alongwith his friend, when suddenly a motor cycle No. DL-6S-Q-6870,driven by respondent No.1 at very high speed, rashly and negligently came from behind and hit him. PW-4 fell down on earth and sustained grievous injuries on his right shoulder and elbow. Petitioner was removed to Sanjay Gandhi Memorial Hospital, Mangolpuri. There petitioner received first aid and MLC was prepared and was advised for immediate surgical treatment for shoulder injury. Police recorded the statement of petitioner.
12. Neither respondent No.1 has filed written statement nor has entered into the witness box to testify in contrary to the version of PW-4. There is no evidence on record either to disbelieve or distrust PW-4 in 7 respect of the sequence of the occurrence of the accident.
13. The version of petitioner is lent corroboration by the version emanating from certified copy of the charge-sheet, Ex. PW4/A1 of case FIR No. 21/07, u/s 279/338 IPC, P.S. Paschim Vihar, in terms of which the investigating agency opined the commission of said offences by respondent No.1 and respondent No.1 being responsible for grievous injuries on the person of the petitioner due to his rash and negligent driving of vehicle in question.
14. In view of the above discussion, I am of the considered opinion that petitioner has been able to prove that he sustained grievous injuries due to rash and negligent driving of respondent No.1. Issue No.1 is decided in favour of the petitioner and against the respondents. ISSUE NO.2
15. The petitioner has claimed Rs 25 Lakh as compensation for the injuries and disability suffered by him. Let me now assess the compensation to which the petitioner is entitled to under different heads? Compensation for the expenses incurred on medical treatment.
16. The petitioner has proved in petitioner evidence the expenses incurred on his medical treatment as Rs. 1,17,467/- as per bills Ex. PW2/A & Ex. PW3/1 to Ex. PW3/29.
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17. Ld. Counsel for insurer contended that since the petitioner has got reimbursement from the medi-claim policy, as PW-2 testified that the petitioner was paid Rs. 93,933/- under the medi-claim policy, the petitioner is not entitled for the said sum under this head. In case of Sebastian K. Jacob(supra), it had been held that since the matter was settled by another Insurance Company in respect of the jeep in question for compensation for damages to vehicle, the matter was remitted to the High Court for fresh consideration. The subject matter therein was the compensation qua damages to vehicle and the claimant had settled the matter with another insurance company for the damages sustained to the vehicle. Case in hand embodies entirely different facts and the petitioner had obtained the aforesaid sum through his medi-claim policy.
18. In the case of Laxmi Narayan Dhutt (supra), Hon'ble Supreme Court made a distinction between the contractual liability and statutory liability, in terms of which it accordingly cannot be said that petitioner is wanting to avail double benefit.
19. In the case of R. Swaminathan & Ors(supra), since the medical expenses of the claimant/ petitioner were met by his employer, it was held that the award on that ground was rightly quashed. Herein, the employer has not met the medical expenses of the claimant and facts of the case in hand accordingly are at variance.
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20. In the case of Mahadeva Shetty (supra), Hon'ble Supreme Court held that compensation must be just and it cannot be a bonanza nor a pittance.
21. In the case of Priyank(supra) it had been held that the amount received from the Insurance Company for medical treatment and disability is not deductible from the amount of the compensation payable to the injured/claimant as claimant has received these amounts under contract of insurance for which he had paid premium. Similar view was taken in the case of Vrajesh Navnitlale Desai(supra).
22. In the case of DTC Vs. Meena Chaturvedi & Ors(supra), it had been held that Tribunal while excercising jurisdiction under Motor Vehicle Act is required to consider the payment of damages/compensation to the person concerned on the basis of income and the loss that others would suffer irrespective of benefits, such as insurance, provident fund, pension, etc.
23. In the case of Helen C. Rebello (supra), it was held that it would be unjust and unreasonable to hold that while the money is prudently spent by claimant on premiums and the benefit from it should enure to the benefit of the tortfeasor. The claimant enters into the contract of insurance as an act of wisdom, of course, not towards the gain to the tortfeasor. 10
24. The reimbursement of Rs. 93,933/- obtained by petitioner under the medi-claim policy accordingly is not liable for deduction from the compensation claim for which the petitioner is entitled in this forum, in view of the law laid in the cases of Priyank (supra); Meena Chaturvedi(supra) and Helen C. Rebello(supra) herein above elicited. In view of the abovesaid, the petitioner is entitled for compensation for expenses incurred on medical treatment i.e. Rs.1,17,467/- accordingly.
Compensation for conveyance charges
25. Petitioner suffered injuries on right shoulder. From the spot, he was taken to Sanjay Gandhi Memorial Hospital where he was advised of surgery. The petitioner had sustained fracture of neck of humerus with posteriuor dislocation and impaction of humeral head lying in the inferior axillary region. The right shoulder of the petitioner was operated in Paschimi Hospital, Multan Nagar, on 12/01/07 where he was admitted on 10/01/07 till 15/01/07. A metal implant(Artificial Shoulder) was inserted and a part of bone i.e. the shoulder ball/shoulder head was removed. Petitioner was advised for restrain from work w.e.f. 12/01/07 till 09/03/07. MLC of petitioner is Ex. PW4/A17. PW-5 Dr. Sanjeev Rustogi testified in corroboration with the averments of the petitioner as PW-4 and deposed that he had operated upon the petitioner accordingly.
26. Though there is no cogent evidence on record for the money spent by the petitioner on conveyance charges, yet in the back drop of the facts that the petitioner, resident of Ghaziabad had to come on various 11 occasions for treatment in Delhi at Multan Nagar, Paschim Vihar, his treatment papers on record and the injuries suffered as herein abovesaid, I am of the considered opinion that the petitioner must have spent some sum under this head. Petitioner is accordingly held entitled for sum of Rs. 20,000/- for the money spent on conveyance charges.
Compensation for attendant charges
27. Petitioner was married in year 2005. PW-3, the wife of petitioner deposed of earning from tuitions and stitching and has placed on record her income tax return for the assessment year 2007-2008, Ex. PW3/D,as per which she had earned Rs. 1,24,900/- in that financial year, in which period she stated that she even attended petitioner as attendant w.e.f. 08/01/07 till 10/03/07, i.e for more than two months for which the petitioner was restrained from work. It is stated that PW-3, the wife of the petitioner suffered loss of income accordingly and attended the petitioner. Perhaps it is warmth of the attendance of the spouse of the petitioner that he could be on his legs. Facts remains, considering the nature of injuries suffered by the petitioner in the back drop of the facts elicited above, the wife of the petitioner suffered loss of income and petitioner correspondingly suffered. Tribunal is enjoined to recompense the petitioner for such loss suffered by notional assessment. Petitioner is accordingly held entitled for sum of Rs. 20,000/- under this head for attendant charges.
Compensation for expenses on special diet
28. Though there is no cogent evidence on record placed by the petitioner for money spent on special diet, yet considering the nature of 12 injuries suffered by the petitioner and his medical treatment record as elicited above, I am of the considered opinion that petitioner must have spent some sum under this head. Petitioner is accordingly held entitled for Rs. 20,000/- under this head.
Compensation for loss of earning capacity
29. Petitioner deposed of being a practicing Lawyer. He stated that he had his own chamber No. K-1A, Tis Hazari Courts, Delhi to operate his profession but had to sell his chamber due to financial constraints arising out of the accident in question. He further stated in his affidavit that he was practicing in various districts courts as well as before the Hon'ble High Court, having been enrolled in Delhi High Court Bar Association, vide Identity Card, Ex. PW4/B. The petitioner stated that he joined this profession since year 2002.
30. Petitioner has placed on record as Ex. PW4/E, his Income-tax return for assessment year 2006-2007(y.e. 31/03/06), having net income of Rs. 99,733/- from his profession for which year as per his profit and loss account, Ex. PW4/G, certified copy of Income-tax department,he had obtained the professional fees amounting to Rs. 2,21,500/- i.e Rs. 18,458/- (approximately) per month. Petitioner has also placed on record,Ex. PW4/H, the income tax return for the assessment year 2007-2008(y.e. 31/03/07) filed on 09/04/07 i.e after the present accident, for the income of Rs. 1,88,264/-. For assessment year 2007-2008, the petitioner has placed on record his profit and loss account, Ex. PW4/J, in terms of which he had 13 gained the professional fees of Rs. 3,65,950/-.
31. The petitioner testified that for two months in the financial year ending 31/03/07 i.e. for the period w.e.f08/01/07 till 09/03/07 while he was advised to restrain from work due to the accident in question, he was unable to do the professional work of a lawyer. So his earnings abovesaid for year 2007-2008 were for period of 10 months practically, in terms of which he was earning Rs. 36,595/- per month practically and he argued that his compensation may be assessed accordingly on said monthly earnings.
32. Petitioner also testified that he had deposited NSCs and FDRs , of various amounts in August, September & October, 2006 viz. Ex. PW4/M1, two NSCs of Rs. 5000/- each dated 01/08/06; Ex. PW4/M2 i.e. NSC of Rs. 5000/- dated 19/08/06; Ex. PW4/L1, FDR with P.N.B of Rs. 10,000/- dated 09/09/06; Ex. PW4/L2 i.e. FDR dated 16/09/06 of Rs. 15,000/-; Ex. PW4/L3 i.e. FDR dated 22/09/06 of Rs. 20,000/-; Ex. PW4/L4 i.e. FDR of Rs. 10,000/- dated 05/10/06; Ex. PW4/L5 FDR of Rs. 25,000/- & Ex. PW4/L6 FDR of Rs. 20,000/- dated 09/09/06 , all with Punjab National Bank besides other deposits in other schemes.
33. Petitioner also argued that since in the case of Syed Basheer Ahmad(supra) the current year earnings of the claimant were considered, his earnings in terms of the income tax return, Ex. PW4/H may also be so considered.
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34. Adverting back to the case of Syed Basheer Ahmad(supra), it is revealed that claimant therein had placed on record various documents of earnings on record, even after which the Hon'ble Supreme Court had assessed the earning lesser than assessed by Tribunal but higher than Hon'ble High Court.
35. Herein excepting the profits and loss account, computation of income and income-tax return, no other documents comprising the total of the professional fees alleged to have been gained by the petitioner in the assessment year 2007-2008( y.e. 31/03/07) have been placed on record by the petitioner. Facts embodied in the case of Syed Basheer Ahmad(supra) are entirely different and distinguishable from the present case.
36. In the case of Delhi Development Authority Vs. Rukmani Bansal & Ors, reported in IV(2007) ACC 697; (2) Jasbir Kaur & Anr. Vs. Rakesh Kumar & Anr, reported in II(2007) ACC 68 & (3) V. Subbu Lakshmi & Ors Vs. S. Lakshmi & Anr, reported in I(2008) ACC 851 (SC), it had been held that for assessing of monthly earnings of claimant, income-tax return of the deceased/ injured filed prior to the accident is to be relied. In the case of Jasbir Kaur & ors(supra), our own and Hon'ble High Court held that the income-tax return which was filed after death of the deceased was rightly rejected by the Tribunal and not relied to assess the monthly earnings of the deceased.
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37. In terms of law laid as herein above said in the preceding para, the Income Tax Return filed on 09/04/07, Ex. PW4/H is not to be relied for the purpose of assessing monthly earnings of the petitioner since it is filed later to the accident. Even, the deposits made by the petitioner as stated by him, made in the NSCs in the post office; the fixed deposits in Punjab National Bank; in other schemes may have been made so with the funds available with the petitioner for which it cannot be presumed that they were so made either from the earnings of the petitioner for the current period of the deposits or from previous savings or from other sources.
38. In terms of the profit and loss account of the petitioner for assessment year 2006-2007(y.e. 31/03/06), Ex. PW4/G, the petitioner earned Rs. 2,21,500/- as professional fees in the said year. As per it, monthly income of the petitioner was Rs. 18,458/-(approximately). The same is accordingly taken as the monthly earning of the petitioner.
39. Ld. Counsel for Insurer relied upon the cases of Subhash Chand (supra); D. Satyavati (supra);Devaraddi (supra); Suraj Parkash Khanna(supra); Bhura(supra); Harvinder Singh(supra); P.R. Sharma(supra) and CSS Rao(supra) and argued that permanent disability of the petitioner should be assessed as 15% in relation to whole body for working out the functional disability of petitioner for loss of earning capacity. Facts 16 emobodies in these prcedents are entirely different and distinguishable from facts of present case.
40. The injuries suffered by the petitioner have been herein above elicited in para '25' which are not being repeated for the sake of brevity. PW- 6 testified that he was one of the members of the board which had issued the disability certificate, Ex. PW4/S. As per said certificate, it was a case of right upper limb shoulder stiffness with radial nerve injury and petitioner was suffering from 40% permanent disability. PW-6 testified that as the petitioner was suffering from radial nerve injury, he cannot lift his hand at the wrist joint and ,therefore, cannot perform normal functions with the help of the same. Even petitioner was not having full gripping power and because of the reason that wrist cannot be raised upward and always is in the downward position. Due to stiffness in the shoulder joint, the petitioner cannot move his right hand more than 30 degree. PW-6 elaborated that the disability certificate had been issued in relation to whole body, there being no chances of improvement in said suffered disability since said nerve stands damaged and it does not allow the muscle to function, because of which there were no chances of improvement even with replacement of joint of the shoulder. PW-6 denied the suggestion that disability, in relation to the whole body was not more than 10%.
41. Ld. Counsel for insurer contended that since the Doctor PW-6 17 had himself not treated the patient, so the aforesaid testimony of PW-6 should not be made basis of assessing the loss of earning capacity of the petitioner.
42. Ld. Counsel for insurer thereupon relied upon the cases of (1) M. Jayanna(supra)& (2) Subhash Chand(supra).
43. Referring to the case of Divisional Controller of KSRTC Vs. Mahadeva Shetty(supra), the Hon'ble Supreme Court in case of G. Gnanam @Gnanamoorthy Vs. Metropolitan Transport Corporation(SC), reported in 2009(1) RCR(Civil) 597, held that the certificate of doctor of government hospital that victim suffered permanent disability should be believed.
44. PW-6 was a Doctor of the Government Hospital at Ghaziabad and interms of law elicited in the preceding para , his testimony is to be believed, more so when he testified that he as a member of board had examined the patient, also seen his medical record.
45. Petitioner is a the practicing lawyer since year 2002. Petitioner as PW4 testified that he was a young and dynamic lawyer appeared in various courts in Delhi including the Hon'ble High Court and some of the copies of judgments mentioning his appearance as a counsel before Hon'ble High Court are placed on record. PW-4 stated that due to the aforesaid road accident, he suffered permanent disability, his right shoulder 18 was disfigured and it has destroyed his future completely since there is loss of use of right shoulder and right hand because of which he has lost his earning capacity to the extent of almost 100%. PW-4 stated that he is not able to hold the pen, being right hander, cannot do the daily chores, cannot lift heavy articles, the movement of his right shoulder is restrained/restricted, painful and his right shoulder is limited only upto few degrees movement, even unable to hug his daughter, unable to drive two wheeler scooter, even unable to wear his own advocate band, Coat, socks etc., unable to even comb, shave, bath, oil his hair, run, dance, attend the mobile calls from his right hand, unable to carry his bag, unable to lift case files, even incapacitated to shake hand with others to make social contacts or expand / promote the legal profession of advocacy. PW-4 stated that the injuries caused in the accident seriously damaged his legal career and prospects. He stated that he was able to write only to some extent, that too by wearing cock -up splint, as advised by the doctor. PW-4 stated he was not having sweet sleeps as during the sleeps his right shoulder becomes senseless, becomes too heavy causing sleeplessness. Even petitioner could not appear in Judicial Services Examination of U.P and other states and the injuries had serious reprecussions destroying his excelling career.
46. The nature of work of the petitioner is such that disability would seriously hamper his earning capacity, since he needs to hold his brief, pen, law books/journals for referring case law, he needs to be agile, stand, walk, sit during the course of his profession. The petitioner would also be 19 incapacitated in free movement of upper right limb.
47. Placing reliance upon the law laid in the case of Oriental Insurance Co. Ltd. Vs. Vijay Kumar Mittal, reported in III(2007)ACC 676, I am of the considered opinion that because of the injuries suffered by the petitioner in the accident in question, resulting into his permanent disability and constraints elicited above, importance of the loss of permanently impaired limb in the vocation/profession of the injured petitioner, the petitioner must be suffering functional disability to the extent of 40% ,as testified by PW-6/doctor.
48. As per Ex. PW4/B, the identity card issued by Delhi High Court Bar Association, the date of birth of petitioner was 18/06/1979. In terms thereof, the petitioner was of age 27 ½ years (approx.) as on the date of accident.
49. In terms of law laid in the case of Smt. Sarla Verma & ors Vs. Delhi Transport Corporation in Civil Appeal No. 3483 of 2008 it was held by by the Division Bench of the Hon'ble Supreme Court on 15/04/09, that to have uniformity and consistency for a petition u/s 166 of M.V.Act, the multiplier is to be used as given therein in respect of different age groups of persons. In terms thereof, considering the abovesaid age of 27 ½ years (approx.) of petitioner, the multiplier of 17 is to be adopted in this case.
50. The petitioner being a professional , the future prospects 20 regarding increase or decrease of the earnings, would vary from individual to individual and would be dependent on several factors. In view of law laid in the case of Smt. Sarla Verma & Ors(supra), since the petitioner was, a professional, actual income of petitioner at the time of accident is to be taken for computation and no addition is to be made for future prospects thereto.
51. In view of the abovesaid, I am of the considered opinion that petitioner would suffer the loss of earning capacity accordingly to the tune of Rs. 15,06,173/- (rounded off) [ 40% x(18,458/- x 12x 17)]. Compensation for incidental expenses
52. Consequent to accident, the petitioner in terms of Ex. PW3/28, certificate of Doctor PW-5 was advised for restrain from work w.e.f 12/01/07 till 09/03/07. The petitioner was a practicing advocate and had taken briefs from various parties and was enjoined to provide the legal services accordingly. The petitioner had not shirked from his reponsibilities but due to the medical constraints even availed the service of PW-1. PW-1 testified that petitioner had hired his service for said two months at the rate of 10,000/- per month. It has been proved that petitioner had to incur said expenses on account of the injuries suffered in the accident in question. Petitioner is held entitled for sum of Rs. 20,000/- for abovesaid expenses incurred. Compensation for loss of income.
53. In terms of the advise contained in Ex. PW3/28, petitioner could 21 not perform his work and suffered loss of income for period of two months. In terms thereof, petitioner is held entitled for sum of Rs. 37,000/- (Rs. 18,458 x 2) (rounded off) as compensation for loss of income accordingly. Compensation for future expenses for change of implant
54. PW-6 Doctor testified that the implant inserted in the right shoulder of the petitioner had a normal life of 10 years. Petitioner was of age of 27 ½ years as on the date of accident. Petitioner requires to get the said implant changed in future on various occasions.
55. In the decision reported as Naggapa (supra), the Apex Court noting that the implant requiring change, had awarded compensation to meet the said future expenses. In terms thereof, the petitioner is held entitled for sum of Rs. 1.5 Lakh under this head.
Compensation for non-pecuniary damages
56. Our Hon'ble High Court authoritatively pronounced in (1) case of Vijay Kumar Mittal(supra) and (2) Rajeev Nayan Vs. Sher Mohd & Ors, reported in III(2008) ACC 898 that in such cases petitioner is also entitled for non pecuniary damages as well.
Compensation for pain and suffering
57. One cannot over look the fact that realigned bones would cause life long pain to the petitioner during winter and rainy season. It is settled law that no amount of compensation can be adequate for the physical dis- comfort, mental pain and suffering. The Hon'ble Supreme Court in the case of Mahadeva Shetty & Anr(supra), has made the following observations 22 regarding compensation for pain and suffering:-
"It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Merries in West Vs. Shepard, (1964 AC 326). Justice requires that it should be equal in value, although not alike in kind. Object of providing compensation is to place the claimant as far as possible in the same position financially as he was before accident."
It is thus, difficult to exactly compensate the injured in terms of money for pain and suffering. In the present case, keeping in mind the facts and circumstances of the case and fact that petitioner is suffering from permanent disability, I am of the opinion that a sum of Rs. 80,000/- as compensation for pain and suffering will be sufficient to meet the ends of justice. Compensation for loss of amenities of life
58. Being a right hander, on account of permanent disability suffered, the petitioner would face enormous difficulties in not only his professional career but also would suffer loss of amenities in the life. Petitioner testified that he could not lift the heavy articles, even cannot hold pen, even cannot hug his daughter to express his love and affection by such gestures. The movement of right shoulder of petitioner was limited upto only few degrees and petitioner shall have to face hardship through out his life, suffer inconveniences in daily routine in respect of wearing apparel, daily chores, carrying of articles etc. Nobody on the earth can put back the petitioner to same physical position as he was prior to accident. The 23 Tribunal is enjoined recompense the victim of the road accident for loss of amenities in life. By modest estimation, I am of the opinion that a sum of Rs. 1 Lakh as compensation for loss of amenities of life will be sufficient to meet the ends of justice.
Compensation for physical disfigurement due to disability
59. The right shoulder of the petitioner has disfigured and become irregular in shape. The physical disfigurement cannot be recompensed in terms of money. Till one is alive even one cannot face himself in mirror if he is suffering from physical disfigurement. Even sometimes inferiority complex creeps in on account of physical disfigurement.
60. May Almighty provide sufficient courage to the petitioner that no such inferiority complex, even comes in his mind. The Tribunal is enjoined to award just compensation for non- pecuniary damages under this head as well. I am of the considered opinion that Rs. 70,000/- as compensation under this head for the petitioner would be just and petitioner is entitled for the same.
Compensation for loss towards matrimonial life
61. Petitioner and his wife PW-3 have testified that by the consequences of the permanent disability of the petitioner, he suffered loss towards matrimonial life. Not only the matrimonial life of petitioner has suffered but even he stated that it has restricted his outings with family, incapacitating him to drive two wheeler scooter and for taking out his minor daughter, even for a ride. In my considered opinion the petitioner is also 24 entitled for compensation for loss towards matrimonial life and amount of Rs. 60,000/- as compensation under this head would be just and petitioner is entitled for the same.
62. In view of the above discussion , the total compensation to which the petitioner is entitled to comes as under:-
1.Compensation for medical expenses Rs. 1,17,467/-
2.Compensation for conveyance charges Rs. 20,000/-
3.Compensation for attendant charges Rs. 20,000/-
4.Compensation for special diet Rs. 20,000/-
5.Compensation for loss of earning capacity. Rs. 15,06,173/-
6.Compensation for incidental expenses Rs. 20,000/-
7.Compensation for loss of income Rs. 37,000/-
8.Compensation for future expenses for change
of implant Rs. 1,50,000/-
9. Compensation for pain and suffering Rs. 80,000/-
10. Compensation for loss of amenities of life Rs. 1,00,000/-
11. Compensation for physical disfigurement
due to permanent disability Rs. 70,000/-
12.Compensation for loss towards matrimonial
life Rs. 60,000/-
______________
Rs. 22,00,640/-
Less interim compensation paid - Rs. 25,000/-
Balance payable sum _____________
Rs. 21,75,640/-
63. In view of the above discussions, Issue No.2 is decided in favour of the petitioner and against the respondents. Petitioner is thus, entitled to Rs. 21,75,640/-as compensation alongwith interest @ 7.5 % per annum from the date of filing of the petition till its realization from the respondents, payable by Insurer.25
Relief
64. In view of the aforesaid discussions, it is hereby held that petitioner is entitled to a sum of Rs. 21,75,640/- alongwith interest @ 7.5% per annum from the date of filing of the present petition till its realization from the respondents, payable by the National Insurance Company Limited / respondent No.2.
65. Out of the award amount, 75% amount of petitioner be invested in shape of 7 FDRs of equal (almost) in the name of the petitioner for a period of ten years in a Nationalized Bank. The FDRs shall have no facility of loan or advance. Petitioner can withdraw the interest monthly/quarterly. However, petitioner is at liberty to take steps for premature encashment in case of exigency, as per law laid before this Tribunal.
66. Respondent No.2/National Insurance Co. Limited is directed to deposit the cheques in the name of the petitioner/claimant within 30 days.
File be consigned to Record Room.
Announced in open court (Gurvinder Pal Singh)
today i.e. 29/08/09 Judge, MACT(West)
Delhi.