Delhi District Court
Smt. Kavita Ahuja vs ) Sh. Kiran Pal Singh on 13 April, 2015
-1-
In the court of Ashwani Kumar Sarpal, Addl. District Judge-1
North East District, Karkardooma Courts, Delhi
(MACT Cases no. 207/2009 & 1/2010)
1. Smt. Kavita Ahuja
w/o Sh. Kailash Ahuja
2. Sh. Kailash Ahuja
s/o Late Sh. Ram Chand Ahuja
Both r/o C-3/66, Yamuna Vihar, Delhi
----Petitioners
vs.
1) Sh. Kiran Pal Singh
s/o Sh. Ram Chander
R/o B-743, Gali no. 10, Pehla Pusta,
Sonia Vihar, Delhi
(Driver cum owner of the offending vehicle)
2) The New India Assurance Company Ltd.
A-2/3, Lusa Tower, Azadpur, Delhi
----Respondents
Date of institution-- 6-7-2009 (MACT no. 207/2009)
& 20-3-2010 (MACT no. 1/2010)
Date of decision-------------------------------13-4-2015
(Petitions under section 166 read with section 140
of Motor Vehicle Act, 1988)
********************************
-2-
JUDGMENT:-
Both the petitioners being wife and husband filed petition no. 207/2009 in respect of the serious injuries suffered by them in an accident and claimed compensation of Rs. 50 Lakhs. Subsequently they also filed another petition no. 1/2010 to claim compensation of Rs. 26 Lakhs due to death of unborn child of seven months in the womb of petitioner no. 1 due to this accident.
Petitioners claimed that on 19-7-2007 at about 11.30 p.m. they were going towards their residence on motorcycle no. DL-7S-AY- 2735 which was being driven by petitioner no. 2 and petitioner no. 1 was a pillion rider. They were coming from Lawrence Road via Wazirabad Yamuna Bridge and when they reached at Nanaksar Red light crossing, one RTV no. DL-1VA-3938 being driven by respondent no. 1 in rash and negligent manner hit the motorcycle due to which both the petitioners suffered injuries and seven months pregnancy of the petitioner no. 1 was aborted. A criminal case under section 279/338 IPC was registered in police station Khajuri Khas on 20-7- 2007 against respondent no. 1 vide FIR no. 341/2007.
(I summoned the file of criminal case from the court of concerned Metropolitan Magistrate and found that respondent no. 1 has been charged with offences under section 279 and 338 IPC and only part examination in chief of petitioner no. 2 is recorded till date).
Offending vehicle i.e. RTV was insured with respondent no. 2 insurance company whereas respondent no. 1 is a driver cum owner of the same. Respondent no. 1 in his written statement disputed the happening of an accident with his RTV and alleged his false implication in the criminal case as he was found nearby the spot at the time of accident. He stated that it was a hit and run case and -3- some unknown vehicle after hitting the motorcycle of the petitioners fled away from the spot. Respondent no. 1 had just stopped his RTV in order to help the injured petitioners but the police falsely implicated him for causing the accident. Respondent no. 2 insurance company though admitted the existence of the valid insurance policy in respect of the offending vehicle but tried to avoid its liability on various technical grounds. The blame was also put upon petitioner no. 2 for negligent driving of motor cycle as well as for causing the accident and thus benefit of contributory negligence is claimed.
Vide order dated 23-7-2010, the following issues were framed and both the petitions were clubbed together to be decided with common evidence:
1) Whether the petitioners sustained injuries on account of rash and negligent driving of vehicle no. DL-1VA-3938 by respondent no. 1? OPP
2) Whether the petitioners are entitled to any compensation? If so, to what amount and against whom? OPP
3) Relief.
In order to prove their case, petitioners examined total 8 witnesses including themselves whereas respondent no. 1 could not lead any evidence despite various opportunities so his evidence was closed by order. However, respondent no. 2 insurance company examined one of its official as well respondent no. 1 also after getting the application under Section 170 of Motor Vehicle Act allowed. My decision on the above mentioned issues is as under:
-4-Issue no. 1:-
Both the petitioners PW-1 and PW-2 being injured as well eye witnesses of the accident in their affidavits of evidence stated that their motor cycle was hit by the offending RTV being driven in rash and negligent manner by respondent no. 1. They also relied upon the charge sheet filed against the respondent no. 1 by the police including the site plan Ex. PW1/J which shows that accident took place due to his rash and negligent driving. In the cross examination, it is stated that offending vehicle had hit the right side of the motor cycle.
The site plan prepared by the police point out that offending RTV was coming from Khajuri Khas side and at Nanaksar crossing was taking right turn towards Sonia Vihar when accident took place with the motor cycle which was coming from Yamuna Bridge side.
Petitioner no. 1 had suffered injuries on her right leg and right hand. Petitioner no. 2 had also suffered injuries on his right thigh, right knee and right leg. Such type of injuries on right side of the body parts of the both petitioners could have been possible if front side of RTV had hit the motor cycle on its right side and the right side body parts of both petitioners are crushed in between motor cycle and RTV. Such injuries also could have been possible due to the fall of motor cycle towards right side after impact of an accident and crushing of right side body parts of both petitioners in between road and motor cycle. In both situations, it can be said that petitioner no. 1 was sitting as a pillion rider on motor cycle in cross legs position.
Petitioner no. 1 in her cross examination stated that;-5-
"I along with my husband on the motor cycle were going straight towards Yamuna Vihar and due to red light my husband stopped the motor cycle at the extreme right side of the road where there was no other vehicle. My husband started moving his motor cycle but all of a sudden an RTV coming from opposite side hit our motor cycle from the right side.
---The red light was on when we reached there. At the red light, my husband started moving towards Yamuna Side."
Petitioner no. 2 in his cross examination also admitted that;
"The RTV was stationary at red light. It started after green light.
---It is correct that it was a head on collusion"
These two above admissions of both the petitioners clearly point out that motor cycle of petitioners was firstly standing at the crossing due to the red light on its side but lateron it had jumped the red light of its own side whereas RTV was passing the crossing after its side light became green. Due to the jumping of red light by the motor cycle, accident had mainly happened. Thus the rashness and negligence on the part of the petitioner no. 2 in driving the motor cycle due to jumping of red light is also clear.
The mechanical inspection report of the motor cycle Ex. R2W2/C shows that front side of it was badly damaged. Report mentions about damages as (1) Head light broken, (2) all meters -6- broken, (3) head light plastic came down, (4) front shocker alignment out, (5) petrol tank dented and (6) leg guard right side bent. The above type of damages to the motor cycle could have been possible either the offending vehicle had hit the motor cycle directly on its front side by 180 degree or due to impact of accident, the motor cycle had fallen down on its right side and its front portion had came in direct contact of the road as well as motor cycle had dragged to some distance due to which plastic and glass parts were badly damaged. The bending of leg guard towards right side also leads to the inference that motor cycle had fallen on its right side after accident.
The mechanical inspection report of RTV Ex. R2W2/D reveals the two fresh damages i.e. (1) front bumper scratching and (2) front right side bumper fixer broken. It means that front side of the RTV had hit the motor cycle. These two mechanical inspection reports clearly prove that it was a collusion of motor cycle and RTV from their respective front side and after the impact, motor cycle had fallen towards right side due to which petitioners had suffered injuries on their right side body parts. The possibility cannot be ruled out that while taking turn towards right side, front bumper of RTV hit motor cycle from its right side and due to this impact, motor cycle fallen towards right side and dragged to some distance. In such situation, the direct collusion at 180 degree from front side of both vehicles may not be necessary. The argument advanced on behalf of respondents that mechanical inspection reports leads to the conclusion of direct front side hit or head on collusion is ruled out as it is not the case of the respondents that RTV was coming from its wrong lane and hit the motor cycle at the straight angle.
-7-Petitioner no. 2 in his cross examination stated that it was head on collusion accident. In the site plan of the police, spot of accident is shown at point X which is falling towards extreme right side corner of road leading to Sonia Vihar. It is argued on behalf of respondents that RTV while taking right turn towards Sonia Vihar, would go towards left side of Sonia Vihar road and not to go to extreme right side where point X is shown which could have been possible only if RTV takes U turn and does not go to the right towards Sonia Vihar so the possibility of hitting of motor cycle by some other unknown vehicle coming from wrong side is also possible. According to the counsel for the respondents, this location and position of spot of accident at point X if is considered with the above admission of the petitioner no. 2, then it leads to the impression that some unknown vehicle hit the motor cycle while coming from the wrong side and further damage to the front portion of the motor cycle fortifies it, hence the RTV cannot be blamed for accident in this regard. However, this argument is liable to be rejected because the site plan was not prepared at the instances of any petitioner. It can also happen that due to impact of hitting of RTV in middle or left corner of Sonia Vihar road, motor cycle had dragged to some distance and stopped at point X and police officials came to conclusion that accident had happened at this point. Otherwise also it is not the case of the respondents that any other vehicle came from wrong side and hit the motor cycle directly from front at point X. Accordingly, this argument is hereby rejected.
The simple defence raised by the respondent no. 1 in his written statement and affidavit of evidence that no accident took place with his RTV and he was falsely implicated in the criminal case cannot -8- be accepted. The prosecution of the respondent no. 1 in the court of magistrate prima facie shows that he was also negligent in driving RTV and causing the accident. What steps he had taken to avoid the accident is not explained even if the motor cycle had jumped the red light. The version of the respondent no. 1 regarding happening of no accident with his RTV is falsified from the fact of existence of fresh scratches on front side bumper of his vehicle and breaking of fixer of this bumper, which he could not explain how the same had happened. Thus the argument of the counsel for respondents to fully exonerate the respondent no. 1 in causing the accident in rash and negligent manner is rejected. I have also called the court file from the court of Metropolitan Magistrate concerned and could not find anything which goes in favour of the respondents as evidence in that criminal case is virtually yet to be start.
Accordingly, it is held that offending vehicle RTV had hit the motor cycle on its right side which may be on any portion or even by touching the handle of the motor cycle due to which motor cycle fallen on right side and dragged to some distance. Right side of body parts of both the injured came in between the body of motor cycle and road due to which they suffered serious injuries. Though it was not a direct head on collusion exactly at 180 degree but certainly it was an accident between offending RTV and motor cycle. The case law Lachoo Ram vs. Himachal Road Transport Corporation 2014 II AD (SC) 281 cited by counsel for the respondent no. 2 can be distinguished from the facts and circumstances of the present case.
However, it has also come on record that petitioner no. 2 was driving motor cycle in rash manner as he had jumped the red light of its side and colluded with the RTV coming from opposite side -9- and was taking right turn so the element of contributory negligence on the part of petitioner no. 2 exists. Respondent no. 1 had also not explained what steps he had taken to avoid the accident and infact he had given false version in the court regarding non happening of any accident with his vehicle. There is no ground to disbelieve the version of the petitioners that RTV was also being driven in rash and negligent manner. Framing of charge by the court of Metropolitan Magistrate in criminal case also leads to the conclusion that respondent no. 1 was prima facie responsible for causing accident. In such circumstances, the finding is given that accident had happened due to rash and negligent driving of offending RTV by respondent no. 1 as well as motor cycle by petitioner no. 2. There exists contributory negligence of both.
Since the motor cycle was being driven by the petitioner no. 2 so the reduction of any compensation on basis of contributory negligence shall be in respect of compensation payable to him only and there shall not be any reduction in respect of compensation payable to the petitioner no. 1 who was merely a pillion rider of the motor cycle and there is nothing on record to point out that she had instigated the petitioner no. 2 to jump the red light. The compensation payable to petitioner no. 1 also cannot be reduced merely due to non impleadment of insurance company of motor cycle because even if it was impleaded, then also the liability shall be joint or several of both the insurance companies. Hence, it is ordered that 50% reduction of compensation payable to petitioner no. 2 only in respect of his injuries will be justified in the present circumstances. This issue is decided accordingly.
-10-Issue no. 2:-
During pendency of these petitions, an effort was made by this court on 19-11-2014 to settle the matter as insurance company was ready to pay the compensation if it is reduced by half due to existence of element of contributory negligence. On that day, certain rough approximate calculations were also made how and in which manner compensation amount has to be calculated but that was not acceptable to the petitioners so in view of the above facts, the compensation is required to be reassessed on basis of evidence and the rough calculations earlier made cannot be relied upon.
Compensation for petitioner no. 1:- At the time of accident, petitioner no. 1 was allegedly pregnant of 7 months and during her hospital admission itself, her pregnancy was aborted. PW-5 Dr. Reena Mehra from Pushpanjali Medical Centre proved that due to injuries received in accident, petitioner no. 1 had developed hypertension and complications of pregnancy which caused danger to her life so in order to save her, her 6½ months pregnancy had to be terminated. Hence in view of her evidence, the reason of death of unborn child due to abortion has to be held as a direct cause of accident.
Delhi High Court in Prakash vs. Arun Kumar Saini 167 (2010) DLT 311 held that an unborn child aged about five months onwards in mother's womb till its birth is to be treated as a child in existence. The unborn child to whom the live birth never comes is held to be a 'person' who can be the subject of an action for damages for his death. The foetus in another life in woman and loss of foetus is actually a loss of child in the offing. However, the love and affection of the parents for seven years old child cannot be equated with that of a -11- foetus which has yet to take birth. The love and affection develops after the birth of the child and it keeps on growing whereas memories of unborn child causes less hurts and cannot be equated with the memories of alive child who has died. In this matter, Delhi High Court granted sum of Rs. 2,50,000/- towards death of unborn child.
Though petitioner no. 2 in the capacity of father is also concerned with the death of his unborn child but petitioner no. 1 being the mother of such unborn child is held to be mainly concerned and entitled to the entire compensation. No deduction can be made in this respect. Accordingly, petitioner no. 1 is entitled to the amount of Rs. 2,50,000/- for death of her unborn child including for loss of love and affection towards such child. This amount of compensation will be sufficed for disposal of petition no. 1/2010. The claim of the petitioners made in this petition no. 1/2010 for compensation of Rs. 25 lakhs towards death of unborn child and Rs. 1 lakh towards loss of love and affection is hereby rejected.
Petitioner no. 1 had also suffered multiple fractures in right leg and right thigh and she remained admitted in hospital from 19-7- 2007 till 5-8-2007. Petitioner was firstly taken to GTB hospital on 19- 7-2007 and thereafter she shifted to Ganesh Ortho Trauma and Medical Centre on 20-7-2007. After seven days she shifted to Pushpanjli Hospital where she stayed for 3 days and her pregnancy was aborted. She again readmitted in Ganesh Hospital from where she was finally discharged on 5-8-2007. Again she remain admitted for 3 hours in Ganesh Hospital on 6-11-2007 for the purpose of removal of distal locking screw which was put at the time of first operation on 20- 7-2007.
-12-During the hospital admission from 20-7-2007 till 5-8-2007 and on 6-11-2007, petitioner no. 1 allegedly paid sum of Rs. 1,37,542/- on her treatment as stated in her affidavit. However, different receipts of payments made to hospital cannot be separately counted when the amount mentioned in the same has already been added in the main bill. She also produced original bills of purchasing medicines and some implants for the purpose of joining bones, undergoing X-rays etc. as well as for visiting doctor as an OPD patient. After going through the same and calculating the same, I found that sum of Rs. 1,43,386/- in round figure was spent. The verification report Ex. R2W1/6 submitted by insurance company is not complete because some bills could not be got verified by it so passing of claim by it only for Rs. 1,41,054/- is hereby rejected. Hence petitioner no. 1 is entitled to Rs. 1,43,386/- towards medical expenses.
According to her admission made in the affidavit of evidence, petitioner was working in Cressanda Solution Ltd. Company as Senior Executive on the date of accident and she was earning Rs. 21,173/- per month salary as per salary slip Ex. PW1/6. Due to accident, she had to leave this job. She got another job with effect from 17-12-2007 in Exl. Service Company at the higher salary so she will not be entitle to any compensation for loss of salary on account of reduction due to taking new job. Maximum it can be said that she remained without job for about 5 months from 20-7-2007 till 17-12- 2007. If the last salary slip of petitioner no. 1 before accident is taken into consideration, then it reveals that she was actually getting net carry home salary of Rs. 20,494/-. The reimbursement of some amount and necessary deduction towards EPF as shown in the last salary slip cannot be included in carry home salary. Hence, petitioner -13- is entitled to sum of Rs. 1,02,470/- towards loss of salary i.e. (20,494 x 5).
According to petitioner no. 1 she had developed problem of high BP after the accident. She is taking one tablet daily for the purpose of controlling her BP. No cost of any such tablet is given by the petitioner but normally such one tablet is costing maximum Rs. 1/-. Hence believing the petitioner no. 1 that she need to take BP tablet daily, I grant sum of Rs. 5,000/- towards future treatment.
No evidence is brought on record that petitioner engaged any attendant to look after herself during period of injuries. However, during injury period, certainly her family members or relatives must have taken more care of her for atleast 3-4 months as well as her two small children. She must have remained much dependant upon family members then in routine to certain extent even for her basic daily needs. However, keeping in view the fact that she joined new job after five months of the accident as well as extent of injuries suffered by her, her financial status and family background, I at the rate of Rs. 5,000/- per month for period of five months grant total sum of Rs. 25,000/- towards gratuitous attendant.
Petitioner no. 1 has not specifically disclosed the amount spent upon special diet and conveyance but keeping in view the extent of her injuries and some visits to the hospital as OPD patient including hospital admissions, she must have spent some amount towards conveyance even if it is not disclosed what is the distance between her house and hospital, which transport vehicle was used for conveyance etc. Otherwise also in case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc. is provided instead of or in addition to the normal food. Normally no receipt or bill -14- in respect of conveyance and special diet is retained by the people so in absence of any evidence lumpsum amount of Rs. 25,000/- is granted towards conveyance and special diet charges.
Petitioner no. 1 has not suffered any permanent disability. There is nothing on record to point out that she need any further treatment in respect of injuries suffered in accident because for the last five years even during pendency of the present petition, there is no visit to doctor or taking of any medicine (except for BP tablet which is already allowed above). Hence, she is not entitled for any claim against future treatment. There is nothing to show that difficulty and inconvenience arises for the petitioner to perform even daily personal routine acts due to the accident in question now. However, she must have suffered great pain and sufferings and also had undergone some shock and trauma of accident especially due to death of her unborn child. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the age, status and condition of the petitioner, extent of injuries, hospital admission, absence period from the job etc. she is granted lump sum amount of Rs. 50,000/- towards pain and sufferings, inconvenience, mental shock and temporary loss of amenities for period of about five months etc. In view of the above discussions, the petitioner no. 1 is entitled to get the following total compensation;
a) Compensation for death of unborn child----Rs. 2,50,000/-
b) Medical expenses------------------------------Rs. 1,43,386/-
c) Loss of salary-----------------------------------Rs. 1,02,470/-
d) Future treatment for BP problem-----------Rs. 5,000/-
e) Attendant charges-----------------------------Rs. 25,000/-
-15-f) Special diet & conveyance charges----------Rs. 25,000/-
g) Pain and sufferings etc.-----------------------Rs. 50,000/-
__________________
Total Rs. 6,00,856/-
Hence, petitioner no. 1 is entitled to get total compensation of Rs. 6,00,856/-.
Compensation for petitioner no. 2:- Petitioner no. 2 had suffered many injuries in the accident and he remain admitted in hospital from 20-7-2007 till 20-8-2007. He was firstly taken to Sushruta Trauma Centre under Lok Nayak Hospital and thereafter shifted to Ganesh Hospital where he remained till the date of discharge on 20-8-2007 as per discharge summary Ex. PW6/2. He again admitted in hospital for two days from 15-9-2007 to 16-9-2007 vide Ex. PW6/3 due to some complications.
Petitioner no. 2 produced his income tax return for the assessment year 2005-06 which shows that his annual income was only Rs. 1,10,000/-. However, further return for the year 2007-08 submitted on 1-7-2007 shows that his annual income as on 31-3- 2007 was only Rs. 1,17,000/-. It means that income of petitioner had increased to an extent of only Rs. 7,000/- in two years or 3500/- per year on average. Keeping in view this very slow increase of yearly income as revealed from the income tax returns of the petitioner no. 2, it can be presumed that his income would have increased maximum to Rs. 5,000/- from 1-4-2007 to 31-3-2008 as compared to previous year. Accident had taken place on 19-7-2007 after about 3½ months of the last assessed income as on 31-3-2007 so in such -16- circumstances, if sum of Rs. 1,250/- (Rs. 5,000/- divided by four) is added in the previous year income of Rs. 1,17,000/- then his income as on the date of accident would come to Rs. 1,18,250/-.
Petitioner no. 2 has suffered 75% permanent disability in relation to right lower limb as per certificate Ex. PW5/1. Witness Dr. Jaswant Singh in his statement has stated that petitioner no. 2 will not be able to lead life of normal person now but he is able to board bus or train, though cannot drive normal four wheelers or two wheeler vehicle. This witness specifically stated he is unable to tell the extent of disability qua the whole body but his disability will not cause any impairment in his vocation.
Petitioner is running his own business of manufacturing of industrial tools and inverters. Though, PW-5 Dr. Jaswant Singh has stated that disability will not cause any impairment in his business in the capacity of owner but still due to restriction in movement due to disability as he now cannot drive two or four wheeler vehicles, he must have not been able to carry on business with the same strength and by running from one customer to another which he could do while leading healthy and normal life. Hence, he is entitled to some compensation on account of loss of business income which will arise due to disability.
This court is concerned with the effect of the permanent disability on the earning capacity of the injured and has to find out the effect of such disablement of the limb on the functioning of the entire body. Accordingly after relying upon the decision of Supreme Court given in case Raj Kumar vs. Ajay Kumar, Civil Appeal no. 8981/2010 decided on 18-10-2010, I deem it proper to treat this -17- disability to an extent of 37.5% (half of 75%) only for determination of compensation in respect of loss of future earning capacity.
The date of birth of petitioner no. 2 is 10-3-1976 as per his driving license and PAN card which means that at the time of accident i.e. 19-7-2007, he was age of 31 years, four months and 9 days so in view of the decision of Supreme Court given in Sarla Verma vs. DTC 2009 ACJ 1298, multiplier of 16 has to be applied to count loss of earning capacity.
The permanent disability is treated at par with the death in order to calculate the amount of compensation in accordance with the extent of disability qua whole body. Petitioner was a self employed person so he is entitled to be given future prospectus also. After adding 50% towards future prospectus on the income which is assessed at Rs. 1,18,250/- as on date of accident, the loss of income has to be calculated at the amount of 1,77,375/- (i.e. Rs. 1,18250 + half of Rs. 1,18,250 which comes to Rs. 59,125).
As no deduction from income has to be taken towards personal expenses in case of injury as per decision of Delhi High Court in Bimla vs. Gopal MAC. APP no. 1028/2006 decided on 22-3-2010 so the total loss of future income or earning capacity comes to Rs. 10,98,000/- as per the formula (Rs. 1,77,375 x 16 x 37.5%). Accordingly petitioner is granted loss of future income at Rs. 10,64,250/- toward loss of earning capacity due to permanent disability.
During the hospital admission from 20-7-2007 till 20-8- 2007 and from 15-9-2007 to 16-9-2007, petitioner no. 2 allegedly paid sum of Rs. 1,91,296/- upon his treatment as stated in his affidavit. However, he included the amount of those receipts also which is already included in the main bills issued by the hospital. Petitioner no. 2 also produced original bills of purchasing medicines, implants and -18- payments made to the doctor in the capacity of an OPD patient, X-rays charges etc. After going through the same and calculating the same, I found that sum of Rs. 1,90,385/- in round figure was spent. The verification report Ex. R2W1/7 submitted by insurance company is not complete because some bills not got verified by it so passing of claim by it only for Rs. 1,76,201/- is hereby rejected. Hence petitioner no. 2 is entitled to Rs. 1,90,385/- towards medical expenses.
No evidence is brought on record that petitioner engaged any attendant to look after himself during period of injuries. However, during injury period, certainly he must have been looked after more carefully by his family members or relatives atleast for 6 months. He must have remain much dependant upon family members then in routine to certain extent even for his basic daily needs so keeping in view the extent of injuries and disability suffered by him, his financial status and family background, I grant sum of Rs. 30,000/- towards gratuitous attendant at the rate of Rs. 5,000/- per month.
Petitioner no. 2 has not specifically disclosed the amount spent upon special diet and conveyance but keeping in view the extent of his injuries and some visits to the hospital as OPD patient including hospital admissions and permanent disability suffered, he must have spent some amount towards conveyance even if it is not disclosed what is the distance between his house and hospital, which transport vehicle was used for conveyance etc. Otherwise also in case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc. is provided instead of or in addition to the normal food. Normally no receipt or bill in respect of conveyance and special diet is retained by the people so in absence of any evidence lumpsum -19- amount of Rs. 30,000/- is granted towards conveyance and special diet charges.
Petitioner no. 2 must have suffered great pain and sufferings and also had undergone some shock of accident. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the age, status and condition of the petitioner, extent of injuries, permanent disability suffered, hospital admission of more than one month, absence period from the business approximately for 6 months etc. he is granted lump sum amount of Rs. 75,000/- towards pain and sufferings, inconvenience, mental shock and temporary loss of amenities etc. Petitioner no. 2 has not brought on record any evidence to show that he needs any further treatment. There is no proof on record to point out that any treatment was taken even in the last five years during pendency of the petition. There is no certificate to show that he needs surgery for removal of implants already inserted in his body as now is being alleged. He had also stated that he requires the knee replacement surgery in future but there is no certificate in this regard to show the need of it as well as any estimate of such surgery. Accordingly, no compensation is granted towards any future treatment.
In view of the above discussions, the petitioner no. 2 is entitled to get the following total compensation;
a) Loss of future earnings due to disability---Rs. 10,64,250/-
b) Medical expenses------------------------------Rs. 1,90,385/-
c) Attendant charges------------------------------Rs. 30,000/-
d) Special diet & conveyance charges----------Rs. 30,000/-
-20-e) Pain and sufferings etc.-----------------------Rs. 75,000/-
__________________
Total Rs. 13,89,635/-
However, in view of the findings given while deciding issue no. 1, 50% compensation has to be reduced due to contributory negligence so the petitioner no. 2 is entitled to net compensation of Rs. 6,94,818/- in round figure.
Issue no. 3 (Relief):-
The above both petitions are pending for the last 5-6 years. Record shows that the petitioners had caused most of delay and took much time in completing evidence. Hence, I deem it proper to grant interest at the rate of 6% p.a. on the compensation amount from the date of filing main petition no. 207/09 till realization. The entire responsibility of payment of compensation is upon respondent no. 2 insurance company as nothing has been brought on record by it to show that respondent no. 1 had violated any terms and conditions of the policy.
On the basis of findings given above, both petitions are disposed off and award is passed. Respondents no. 2 insurance company is directed to pay within 30 days a sum of Rs. 6,00,856/- to the petitioner no. 1 and Rs. 6,94,818/- to petitioner no. 2. Both the petitioners are also entitled to interest at the rate of 6% p.a. upon the above compensation amount from 6-7-2009 till this amount is fully paid.
It is further ordered that out of the award amount granted to both the petitioners, sum of 4 lakhs each shall be deposited in the -21- FDRs for period of 3 years in any nationalized bank preferably where petitioners are having accounts and remaining be paid to them through cheque. Petitioners shall be entitled to withdraw quarterly interest of their respective FDRs but no loan or advance on those FDRs shall be allowed and it cannot be encashed premature without permission of the court.
Copy of this judgment be given to petitioners and counsel for respondent no. 2 insurance company free of costs. Copy of this judgment be kept in both the files and the same be consigned to record room.
(Ashwani Kumar Sarpal)
Dt. 13-4-2015 Addl. District Judge-1