Delhi District Court
Rajesh Grover S/O Satpal Grover vs (1) Pramod Yadav S/O Shri Shiv ... on 14 March, 2011
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN:ASJ/SPECIAL
JUDGE: NDPS:TIS HAZARI COURTS:(WEST) DELHI
Suit no. 56/10/07 (Old suit no.32/09 )
Unique ID no. 02403C0351822007
Rajesh Grover S/o Satpal Grover
R/o 167B, Vikrant Enclave, Mayapuri, Delhi.
( Through his wife and next friend Ms. Geeta Grover )
...............Petitioner
V E R S U S
(1) Pramod Yadav S/o Shri Shiv Raj.............................. (driver)
R/o Village Kudi, PS Bewar, Mainpuri,U.P.
nd
2 Address:
C/o Devender S/o Pheru Singh
R/o Rajpur Khampur, Police Station Bagpat,
District Bagpat, U.P
(2) Devender S/o Shri Pheru Singh .......................... (owner)
R/o Rajpur Khampur, Police Station Bagpat,
District Bagpat, U.P.
nd
2 address:
Village & Post Office Pali,
District Faridabad, Haryana,
(3) Neeraj Tyagi,
R/o 75C, MIG, Sector82,
Noida U.P .................... (2nd owner)
(4) Oriental Insurance Co. Ltd
Divisional Office,
C30, SectorII, Noida. U.P
Policy no. 272500/31/POL/2006/MIG8953
Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........1/36
Endorsement no. 272500/31/POL/2006/MIG/89631
Insurer Code no. 4974074,Insurer of truck HR 38K 7921
................Respondents
Date of filing of the petition : 17/04/2007
When reserved for judgment : 04/03/2011
Date of Judgment/Award : 14/03/2011
JUDGMENT/AWARD
1. In this petition u/s 166 & 140 of the Motor Vehicle Act, 1988 hereinafter referred as the Act, petitioner, Rajesh Grover through his wife next friend Smt Geeta Grover has claimed Rs. 50 lacs as compensation from the respondents interalia alleging that on 24/06/2006 petitioner Rajesh Grover was driving his car no. DL 8C 7051 and was returning from Panipat; at about 11.30am when he reached in front of office of Parasnath Builder at a short distance from Kumaspur crossing on G.T. Road and was being followed by his relative Bharat Bhushan Narang on his two wheeler scooter as they had gone to attend a family function; one truck bearing no. HR 38K 7921 was going in front of them which was being driven in zig zag manner and has also been driven in wrong lane; the truck was being driven on the extreme right side and the petitioner wanted to overtake the said truck by sounding horn and driver of the truck took his truck to the left side and when petitioner was trying to overtake the truck but the driver Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........2/36 of the truck had applied brakes without giving any signal as a result car of the petitioner hit into the truck from behind; at the time of accident the petitioner was driving his car in normal speed but his car got struck with the truck because of applying of sudden brakes by the driver of the truck going ahead in a rash and negligent manner. After causing accident Respondent no.1 driver of the offending vehicle got down and after seeing the condition of the car and the petitioner he fled away from the place of accident and has not rendered any services to the injured.
2. The High Way Petrol Police reached on the place of accident and rushed the injured to the government hospital, Sonepat from where he was referred to PGI hospital, Rohtak in critical condition; because of the critical condition of the petitioner he was shifted to Jaipur Golden hospital and then to Sir Ganga Ram hospital; because of the accident the petitioner has suffered multiple facial and skull fractures and has also sustained serious injuries in his brain and he remained in Coma and was unable to obey medical commands for a pretty long period and he suffered very crucial and critical brain injury and the brain injuries have not been cured and his thinking ability has been severally damaged and the petitioner cannot even turn in the bed independently and needs help of his family members; he is almost passing urine and stool on bed and he cannot remember thing for more Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........3/36 than 5 or 10 minutes.
3. Petitioner remained admitted in the Sir Ganga Ram hospital from 26/06/2006 to 14/8/2006 and was again admitted from 09/09/2006 to 11/9/2006 and from 08/10/2006 to 29/12/2006. On 29/12/2006 CT scan, Hydrocephalous with ventriculities, urgent extra ventricular drain was done; for the first 20 to 22 days he did not open his eyes and could not respond to simple verbal commands and he is still alive just by the grace of God; he is unable to remember the thinks for more than five minutes and his thinking process has been deeply damaged/impaired.
4. During his second admission in the hospital one more surgery of brain was performed. Petitioner further remained admitted in Anand Nursing Home West Patel Nagar from 27/9/2006 to 29/9/2006 because no bed was available in Sir Ganga Ram hospital for his treatment. His skull base repair was done on 18/12/2006.
5. Petitioner has spent more than Rs. 50,00,000/ on his medical treatment. The detail of the period of hospitalization and the bills raised therein given in para no. 23J to 23P of the petition.
6. Petitioner was employed with M/s D. K. Traders and was getting annual payment of Rs. 66,929/ from M/s D. K. Traders; his income for financial year 01/04/2004 to 31/03/2005 was Rs. 1,07,048/; he has also rendered services to M/s Flair Impex and also Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........4/36 doing liasoning work in sale purchase of waxes. Thus, his total income for the above said year was Rs. 1,07,048/; his income for financial year 01/04/2005 to 31/3/2006 was Rs. 1,91,427/. He has annexed income tax returns for the financial year 01/04/2002 to 31/3/2003, 01/04/2004 to 31/3/2005 alongwith the petition. His income is steadily rising and if he had not met with accident his income would be rapidly grown.
7. Because of the injuries in the accident, the petitioner has become totally disabled and crippled for living and has suffered permanent disability as he is unable to think and memorise. It is therefore stated that he be granted damages under the Act as claimed for.
8. All the respondents were served with the summons of the petition. Respondent no. 1,3,4 appeared and filed their written statements. Respondent no. 2 was proceeded exparte.
9. Respondent no.1 in his written statement has stated that the petition does not disclose any rash and negligent driving on the part of the alleged driver of the vehicle and as such there is no cause of action to file the present petition against him. In reply on merits, all other averments have been controverted and denied. He has even denied the occurrence of the accident on 24/06/2006 at 11.30am. However, it is further stated that the said accident took place on 24/06/2006 because Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........5/36 of the mistake of the petitioner and respondent no.1 was driving the vehicle accordingly without any rash and negligence driving on his part; the said vehicle was insured with respondent no. 4 and award if any is to be passed against insurance company/respondent no. 4.
10. Respondent no. 3 has stated that the alleged accident had taken place on 24/6/2006 and he had purchased the offending vehicle on 4/09/2006 and he was not aware about the alleged accident at the time of purchase of the vehicle hence was not liable to pay any compensation. He has further stated that offending vehicle insured with respondent no. 4 at the time of alleged accident and hence it is the liability of Respondent no. 4 to pay compensation.
11. Respondent no. 4 insurance company in its written statement has denied the liability stating that since respondent no. 2 has not appeared, insurance company be permitted to to take all his defence u/s 170 of the Act. It is however admitted that offending vehicle was insured with it with vide policy no. 272500/31/2006/8953 for a period w. e. f 21/12/05 to 20/12/06.
12. On 01/06/09 from the pleadings of the parties following issues were framed:
1. Whether the petitioner Sh. Rajesh Grover had sustained grievous injuries on 24/6/06 at about 11.30am at a short distance from Kamaspur crossing, G.T Road Sonepat Haryana within the area of Police Station Murthal due Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........6/36 to rash and negligent driving of respondent no. 1 Sh. Pramod Yadav While driving vehicle truck bearing registration no. HR 38K 7921?
2. Whether the petitioner is entitled to any compensation? if so, to what amount and from whom?
3. Relief
13. In support of his case the petitioner has examined PW1 Shri Alic Masih, PW2 ASI Ram Prem, PW3 Smt Geeta Grover, PW4 Bharat Bhushan Narang, PW5 Dr. Neera Chaudhary, PW6 Dr. P. N. Pandey and PW7 Amit Grover son of the petitioner.
14. Respondent no.4/insurance company has examined R3W1 Vikram Singh.
15. I have heard Ld counsel for the petitioner as well as Ld counsel for insurance company.
My issuewise findings is as under: 16. ISSUE NO. 1 "Whether the petitioner Sh. Rajesh Goyal had sustained grievous injuries on 24/6/06 at about 11.30am at a short distance from Kamaspur crossing, G.T Road Sonepat Haryana within the area of PS Murthal due to rash and negligent driving of respondent no. 1 Sh. Pramod Yadav While driving vehicle truck bearing registration no. HR 38K 7921?"
PW2 ASI Ram Prem of Police Station City Sonepat has proved the copy of the FIR no. 114/06 Police Station Murthal Sonepat Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........7/36 Ex. PW2/A (OSR). He has deposed that after conclusion of the investigation, the chargesheet was filed in the court and after the trial accused was acquitted by the court of Ld Judicial Magistrate First class, Sonepat.
17. PW4 Bharat Bhushan Narang is the eye witness to the accident who has filed the affidavit Ex. PW4/A wherein he has deposed that he was relative of Rajesh Grover/petitioner; both of them had gone to attend family function on 24/06/2006; after finishing their function and social duties at about 10.30am both started together from Panipat in order to come Delhi and petitioner Rajesh Grover was driving Esteem car no. DL 8C 7051 whereas he has been following him on his two wheeler scooter; Rajesh Grover was going a little ahead of him; at about 11.30am they reached in front of office of Parasnath Builders near Kumarpur Chowk, at that time one truck bearing number HR 38K 7921 was going ahead of them; the driver of the truck was driving the truck at a very excessive speed in a rash and negligent and improper manner; Rajesh Gover wanted to overtake the truck after signaling and asking the truck driver to move to a proper lane so that Rajesh Grover could overtake the truck and move ahead; truck was being driven at that time on the extreme right hand side; when Rajesh Grover sounded his horn and gave signal, the driver of the truck took his truck to left hand side and gave a signal to Rajesh Grover to move Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........8/36 ahead and when Rajesh Grover was in the process of overtaking, the driver of the truck brought his truck to the right hand side negligently and improperly and applied sudden brakes as a result of which the car being driven by the petitioner struck against the said truck; at that time the petitioner was driving his car in a proper and lawful manner; at the time of accident the driver of the truck was driving the truck at a very high speed in a rash and negligent manner; after causing accident the driver of the truck then moved his truck to some distance, got down from the truck to see the effect of the accident and as the crowd was gathered there he fled away; somebody informed the police and Highway Petrolling vehicle of the police came at the spot; petitioner had received serious injuries on his head and forehead due to the accident; he was shifted to Civil hospital, Sonepat and then shifted to PGI MS Rohtak; thereafter petitioner was brought to Jaipur Golden hospital and admitted there and thereafter he was admitted in Sir Ganga Ram hospital; the accident took place due to rash and negligent driving by the driver of the truck.
18. He was crossexamined by Ld counsel for the insurance company after granting permission u/s 170 of the Act because Respondent no.1 and Respondent no.2 were not contesting the petition seriously and were not appearing in the court. In the cross examination by Shri J.P. N. Sahi Ld counsel for the insurance company Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........9/36 he has stated that he was brother in law (Saddu) of the injured. He has denied the suggestion that he was sitting in the car driven by Rajesh Grover and was not following him on his two wheeler scooter. He has categorically stated as under: "At the time of accident, I was following his car on my wheeler scooter and was a distance of about 100150 yards. Rajesh Grover might be driving 80100KM per hour at the time of accident. The accident occurred during the day at 11.30am. I had seen the offending vehicle which had hit the car of the Rajesh Grover. I cannot tell the speed of vehicle truck at the time of accident. It was not a head collision. The offending truck bearing number 7921 was ahead the car of Rajesh Grover when it got struck with it."
19. In a suggestion that offending truck was going at a speed of 2030 KM per hour at the time of accident the witness has stated that the truck never goes on speed of 2030 KM per hour on the National Highway no.1.
20. There is nothing in the crossexamination of PW4 so as to assail his deposition regarding having witnessed the accident .
21. Moreover, PW2 Ram Prem SI has placed on record copy of the chargesheet Ex. C1 alongwith copy of judgment passed by Ld Judicial Magistrate first class Sonepat dt. 4/12/08 wherein respondent no.1 was acquitted by the Ld Magistrate on the ground that prosecution has failed to prove the case against him beyond reasonable doubt because Investigating Officer has not made efforts to join any Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........10/36 independent witness from the general public. Further, Investigating Officer has not been examined to prove the report u/s 173 CrPC and the Ld Magistrate was of the opinion that nonexamination of the Investigating Officer has shown serious taint in the prosecution case.
22. The conclusion of the chargesheet and copy of the judgment placed on record Ex. C1 has shown that respondent no.1 was arrested and challaned for the offence u/s 279/338 IPC.
23. Moreover, in his written statement respondent no.1 has not denied the factum of the accident because he has simply stated that the said accident occurred because of the mistake of the petitioner and he was not driving his truck in a rash and negligent manner. Respondent no.1 has not appeared in the witness box to substantiate the said averments in the written statement. The deposition of PW4 Bharat Bhushan has sufficiently established that the accident was caused by the Respondent no.1 while driving the offending vehicle bearing no. HR 38K 7921 in a rash and negligent manner. As deposed by the witness, driving of heavy vehicle on the right side and not giving proper side to a car while seeking side on the National Highway no.1 and when suddenly taking brakes not giving opportunity to the driver of the car following it to stop at a distance to avoid accident, shows the act of the respondent no.1 while driving the offending vehicle without due care and caution on his part. In other words, he was driving the Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........11/36 offending vehicle in a rash and negligent manner. Because of the above discussions, I am satisfied that petitioner has succeeded in establishing that the accident was caused by the respondent no.1 while driving the truck in a rash and negligent manner. This issue no.1 is decided in favour of the petitioner and against the respondents. 24. ISSUE NO. 2
"Whether the petitioner is entitled to any compensation? if so, to what amount and from whom?"
The petitioner Rajesh Grover has claimed Rs. 50 lacs as compensation for the injuries and disability suffered by him . Let me now assess the compensation to which petitioner is entitled to as under:
25. Compensation for the expenses incurred on medical treatment PW1 Allic Masih Senior Medical Record Technician from Sir Ganga Ram Hospital has proved the medical treatment record of petitioner Rajesh Grover for the month of August,2006 running into 35 sheets as Ex. PW1/A (collectively); treatment record of September, 2006 running into 29 sheets Ex. PW1/B (Collectively); treatment record of November, 2006 running into 177 sheets Ex. PW1/C (collectively).
Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........12/36
26. PW3 Smt Geeta wife of petitioner has filed affidavit Ex. PW3/A wherein it is stated that after the accident her husband suffered multiple facial and skull fractures; the brain of her husband suffered serious injuries and he remained in Coma and was unable to obey medical commands for a pretty long period; the injuries have not been cured completely till today and his thinking ability has been severally damaged; at the time of filing of claim petition her husband was passing urine and stool on bed; her husband could not eat with his own hands; his ability to think has been critically damaged and he could remember things only for more than 3 to 5 minutes. She further deposed that her husband was admitted in Sir Ganga Ram hospital from 04/6/2006 to 14/8/2006 for a period of 50 days; again from 09/9/2006 to 11/09/2006 and again on 8/10/2006 to 29/12/2006. She further deposed that because of the injuries her husband did not open eyes for the first 2022 days and did not respond to simple verbal commands; her husband was alive only by grace of God and he could not remember anything for more than 5 minutes and during his second admission in Sir Ganga Ram hospital one more surgery was done upon him.
27. She further deposed that her husband remained admitted in Anand Nursing Home, Patel Nagar from 27/9/2006 to 29/9/2006 because there was no bed in the Ganga Ram hospital. She further Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........13/36 deposed that her husband spent Rs. 12 lacs on his medical treatment. The petitioner has placed on record following original bills as under: Serial no. Bill number Amount (Rs.) 1 0198609 35,542 2 R26171 3,300 3 R323 1,450 4 11,449 5 R33992 1,450 6 208568/69 3,54,649 7 R29331299 14,000 8 20072008/Ca/0005886 1696 Total Rs. 4,23536
28. Further, petitioner has placed on record photocopies of following bills which were reimbursed by the Directorate (Medical) Delhi, ESI Scheme being employee of M/s D.K. Traders. as under: Serial no. Bill number Amount (Rs.) 1 0197258 5,00,000/ 2 201768 41,279/ 3 48671 62,025/ Total Rs. 6,03,304/ Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........14/36
29. In that regard petitioner has examined PW 8 who has placed on record the certified copy of bills submitted to ESI for reimbursement under the ESI Insurance Scheme alongwith whole record at the time of claim made by the petitioner and has brought the original bills. As per deposition of PW3 a sum of Rs. 4,18,969/ was reimbursed against those bills to the petitioner on the basis of his contribution to the ESI Insurance Scheme.
30. Ld. counsel for the petitioner has argued that the petitioner is also to be compensated on account of medical bills Ex. PW3/12 and Ex.PW3/13 despite that he was reimbursed to the tune of Rs.4,18,969/ against these bills on account of being contributory to the ESI Insurance Scheme of Directorate (Medical) Delhi, ESI Scheme. In support of his arguments counsel has relied upon the case of Hukum Singh Vs. Narayan Singh & others, reported as 2002 ACJ 2109 High Court of Madhya Pradesh, Indore Bench. In that case the injured who was hit by a bus was in private employment covered under ESI and received benefit under that Act. He filed the claim under Motor Vehicle Act. His claim was rejected on the ground of having been received benefits under the ESI Act. The Hon'ble High Court was pleased to hold that claim was not liable to be rejected as the injuries suffered by the claimant were not employment injuries. It was further held that benefit of insurance amount for which premium is paid by the Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........15/36 claimant cannot be allowed to the tortfeasor.
31. Ld. counsel further relied on the case of Shaheed Ahmed Vs. Shankaranarayana Bhat & Anr. Reported as 2009 ACJ 1448, wherein it was held that the amount received by the claimant would not come within the periphery of Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. It is further held that the insured (deceased/injured) contributes his own money for which he receives the amount, has no correlation to the compensation computed as against the tortfeasors for his negligence on account of the accident. The amount received as compensation under Motor Vehicle is on account of accidental injuries, or accidental death without making any contribution towards it. Hence the fruits of the amount received through contribution of the insured cannot be deducted out of the amount receivable under Motor Vehicles Act because the compensation payable under Motor Vehicles Act is statutory, while the amount receivable under the life insurance policy or the mediclaim policy is contractual.
32. Similarly, the Hon'le Supreme Court in AIR 1998 SC 319(1) in case of Mrs. Helen C. Rebello & ors. Vs. Maharashtra State Road Transport Corpn. & Anr. was pleased to hold that that the life insurance amount received by the claimants is not deductible from the compensation to be received under the Motor Vehicle Act. The Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........16/36 Hon'ble Apex Court has categorically held that : "The insured (deceased) contributes his own money for which he receives the amount has no corelation to the compensation computed as against tortfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act, he receives without any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual".
33. Thus on the basis of law referred Supra laid down by the various High Courts and Hon'ble Apex Court, I am of the considered opinion that amount received by the petitioner from Directorate (Medical) Delhi, ESI Scheme can not be deducted from the compensation to which he is entitled for under the Motor Vehicle Act. He is therefore also held entitled for the expenses incurred on account of his treatment reimbursed by Directorate (Medical) Delhi, ESI Scheme and therefore he is entitled also for the amount paid against the bills for sum of Rs.6,03,304/ out of which a sum of Rs. 4,18,969 was reimbursed by Directorate (Medical) Delhi, ESI Scheme. The petitioner is therefore held entitled to a sum of Rs. 10,26,840/ (Rs. 6,03,304/ + Rs.4,23,536/) under this head having spent the same on Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........17/36 his treatment in various hospitals because of the injuries sustained in the accident.
34. Compensation for loss of earning capacity on account of permanent disability PW3 Smt Geeta wife of the petitioner has deposed that her husband has suffered permanent mental and physical disability and has become permanently disabled; one person from the family always accompanying him when he goes out and he forgets most of the things; he could not walk in a stable manner in straight line and walks in zig zag manner and he cannot climb or get down stairs independently; he is not able to earn anything; her husband has totally lost his capacity to earn because of the permanent physical disability.
35. PW6: Dr. P. N. Pandey Head of Neuro Surgery has deposed that petitioner Rajesh Grover was examined by the Medical board under of the chairmanship of Dr. S.S. Gambir. He has proved the disability certificate Ex. PW6/A stating that his disability was determined to the extent of 51.10%. He further deposed that determination of the disability due to memory loss was not given in the guidelines issued by Ministry of Health and patient was having memory loss to that extent that he was not able to memorise the talks which has taken place in his house in the morning so that he may Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........18/36 recollect the same in the evening; he will not be able to walk alone so as to go outside from his house for boarding bus or Metro or any other conveyance; he was having difficulty in speech and also having slurring of speech and his speech could not be understand properly by other persons; he was unable to climb the stairs or descend the stairs himself without the help of others. In reply to a court question about disability of the petitioner to carry out his ordinary pursuits as a normal person, he has replied that patient is disabled to the extent that he is not able to perform his activity of daily living. He could not perform any intelligent or intellectual job or could not carry any profession/business etc.
36. In his crossexamination on behalf of insurance company, Doctor has stated that there is no chances of the improvement of disability of this patient and disability is irreversible. He further deposed that he has personally examined the patient Rajesh Grover and in such like cases there was no guidelines prescribed for assessing the disability because of lack of intellectual behaviour and intellectual function due to loss of memory or for any other reasons if a patient is having 100% loss of memory or loss of intellectual behaviour and intellectual function.
37. Petitioner has also placed on record disability certificate issued by ESI hospital, New Delhi wherein petitioner has been shown Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........19/36 to be having 100% permanent disability. PW5 Dr. Neera Chaudhary Associate Professor, Department of Neurology G. B. Pant hospital has deposed that petitioner Rajesh Grover was examined by the Neurology board of the said hospital on 07/6/2010; the patient was having following deficits:
1. Significant memory loss: impaired recent memory and impaired new learning (anterograde anmesia), and also loss of memory for pre traumatic period (retrograde amnesia)
2. he also had unsteadiness of gait, and is unable to walk in narrow passage independently.
3. He also had significant post traumatic facial disfigurement
4. He is significantly disabled.
38. She further deposed that G.B. Pant hospital was not empowered to issue disability certificate regarding percentage of disability because as per internal procedure it is LNJP hospital who has to issue certificate. She was asked to clarify the term significant disability as mentioned in the disability certificate Ex. PW5/A to which she replied as under: "The significant disability would mean that the patient will not be able to carry out the activities of daily livings independently."
Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........20/36
39. She has further clarified that the disability of this patient is such which may prevent him for going to market independently and because of significant memory loss and other deficiencies mentioned in our certificate he will not be able to perform any executive functions or understanding and replying letter etc.
40. Ld counsel for the petitioner has argued that seeing the evidence of PW6 Dr. P. N. Pandey and PW5 Dr. Neera Chaudhary, it has become clear that the functional disability of petitioner has to be determined as 100% and therefore he may be by awarded compensation accordingly.
41. Ld counsel for insurance company on the other hand submitted that as per disability certificate Ex. PW5/A, the disability was determined 51.10% and as such the compensation may be considered accordingly.
42. I have considered the rival submissions and gone through the evidence of PW6 Dr. P. N. Pandey and PW5 Dr. Neera Chaudhary. It was stated by PW6 Dr. P. N. Pandey that he has not determined the disability and due to the memory loss of patient as there was no guidelines by the Ministry of Health. It has become clear from the deposition of both these doctors that the petitioner is unable to do his daily pursuits as a normal human being; he would not be able to do any profession/ business or any job because of the memory loss or loss of Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........21/36 intellectual behaviour and intellectual functions. Considering these physical conditions of the patient and material on record, I am satisfied that petitioner has suffered 100% physical functional disability because of the accident.
43. As deposed by PW3 Geeta Grover, at the time of accident petitioner was aged about 49 years and was employed with M/s D. K. Traders and getting annual income of Rs. 66,929/. It is further deposed that his income for the financial year from 01/04/04 to 31/03/05 was Rs.1,07,048/ and petitioner also rendered services to Flair Impex and also doing liasoning work for sale and purchase of waxes; his income for the financial year 01/04/05 to 31/3/06 was Rs. 1,91,427/ which was also reflected in income tax returns. Petitioner has placed on record income tax returns for year 200304 Ex. PW7/B, for year 200506 Ex.PW7/A and for year 200607 Ex. PW3/10. In these income tax returns his income from salary as well as business or profession has been shown as under: For the Assessment year 200506: Income from salary Rs. 40157 Income from business or Profession Rs.
64000
Total:Rs. 104157
For the Assessment year 200304:
Income from salary Rs. 43213.72
Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........22/36
Income from business or Profession Rs.
45000
Total:Rs. 88213.72
For the Assessment year 200607:
Income from salary Rs. 71427
Income from business or Profession Rs.
100000
Total:Rs. 1,71,427/
44. Thus as per income tax returns Ex. PW7/D for the assessment year 200304, Ex PW7A for the assessment year 200506 and Ex. PW3/10 for the assessment year 200607 the total income of the petitioner was Rs. 89,927/; Rs.1,40,157/ and Rs.1,91,427/ respectively.
45. It was argued by the counsel for the petitioner that income of the petitioner was increasing continuously as he was energetic and hardworking person. Since income of the petitioner is gradually increasing and the documents placed on record is genuine documents and because of the accident he is unable to do any work/profession and as such the annual income of the petitioner at the time of accident is therefore held to be Rs.1,91,427/ as is depicted in Ex. PW3/10 which is income tax returns for the assessment year 200607.
46. Since petitioner has been held to be suffering from permanent functional disability of 100% and as such suffered loss of annual income of Rs.1,91,427/ due to the injury suffered in the accident. Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........23/36
47. In terms of law laid down in case of Oriental Insurance Company Ltd Vs. Rajinder Kumar & Ors, reported in (III 2007) ACC, 19 of Hon'ble High Court of Delhi petitioner is accordingly entitled for loss of earning capacity on the ground of permanent disability suffered as per multiplier basis.
48. The date of birth of the petitioner as shown in Income tax returns Ex. PW7/A and other documents is 24/08/1956 and at the time of accident he was 49 years, 10 months old. Petitioner was self employed as well as earning from the salary being employed with M/s D. K. Trader. It is not proved if his job with M/s D. K. Trader was permanent job or he was getting fixed salary with the provision of annual increments etc. In view of the law laid down in Smt. Sarla Verma & Ors Vs. Delhi Transport Corporation & Anr reported in III (2009) ACC 708 (SC), petitioner being self employed or having fixed salary would not be entitled to any future prospects and loss of earning capacity is to be determined on the basis of actual income at the time of accident.
49. In view of the law laid down in Sarla Verma's case (Supra) multiplier of 13 is to be adopted for age group of 4650 years. Since petitioner was of age of 49 years 10 months as per date of birth 24/8/1956, multiplier of 13 is adopted in this case for assessing compensation for the petitioner.
Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........24/36
50. In view of the aforesaid , the petitioner has suffered loss of earning capacity to the tune of Rs. 1,91,427 X 13= Rs.24,88,551/ .
51. Compensation for loss of amenities of life The petitioner has suffered 100% permanent disability and he needs permanent attendant for his movement or to do his ordinary pursuits. Keeping in mind the permanent disability suffered, the restrictions put on the active and agile movement of the petitioner due to the suffered permanent disability, I am of the opinion that a sum of Rs. 1,00,000/ as compensation for loss of amenities of life will be sufficient to meet the ends of justice.
52. Compensation for conveyance , special diet and attendant charges As per evidence of PW3 petitioner remained admitted first time in Jaipur Golden hospital then remained admitted to Sir Ganga Ram hospital from 24/06/2006 to 3/08/2006. He was again remained admitted in 5/8/2006 to 14/8/2006 and subsequently again admitted in Ganga Ram hospital on 09/09/2006 to 11/09/2006. Petitioner was again admitted in Ganga Ram hospital from 02/12/2006 to 13/12/2006. It is also deposed by PW3 Geeta Grover that petitioner her husband was not able to do his ordinary pursuits independently because of short memory. It is deposed that one person from family always Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........25/36 accompanying him when he goes out and he has forgot most of the things; when he goes toilet one family member with him has to keep the toilet door slightly open and unbolted in order to avoid any unfortunate incident; he could not walk in stable manner and in straight line and walks in zig zag manner and he could not climb stairs and got down the stairs independently. All these facts are substantiated in the deposition of PW6 Dr. P. N. Pandey and PW5 Dr. Neera Chaudhary who had determined the disability of the petitioner. Thus, the mental and physical condition of the petitioner makes it clear that he required permanent attendant during the stay in the hospital for his treatment and his subsequent mental physical condition because of permanent physical disability would require a permanent attendant and had infact required attendant after the date of accident.
53. Petitioner have not claimed any separate amount under this head and has claimed total sum of Rs. 50 lacs as compensation under the Act. Considering the nature of the injuries and the treatment taken by him and permanent disability so suffered, the petitioner must have spent sufficient amount on conveyance, special diet and attendant charges. I therefore , assess the petitioner to be entitled for a sum of Rs 50,000/, for conveyance charges, Rs. 50,000/ for special diet and Rs. 50,000/ for attendant charges respectively. Therefore, petitioner is entitled to Rs. 1,50,000/ as compensation under this head. Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........26/36
54. Compensation for Pain and Suffering .
One cannot over look the fact that because of the injury and due to the disability suffered the life of the petitioner has been totally paralyzed. He needs permanent attendant to do his ordinary pursuits. It is settled law that no amount of compensation can be adequate for the physical discomfort, mental pain and suffering. The Hon'ble Supreme Court in "The Divisional Controller, KSRTC Vs. Mahadeva Shetty & Anr." reported in AIR 2003 SC 4172, has made the following observations 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."
55. 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 the fact that the petitioner is suffering from permanent disability, I am of the opinion that a sum of Rs.1,00,000/ as compensation for pain and suffering will be sufficient to meet the ends of justice.
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56. Compensation for future attendant charges.
It has come in the evidence of PW3 Geeta Grover as well as supporting evidence of PW5 Dr. Neera Chaudhary and PW6 Dr. P. N. Pandey that petitioner has been suffering permanent injuries and he is not able to move independently and to do ordinary pursuits independently and always need help of another person which shows that he would need permanent attendant so as to live a meaningful life. Considering the nature of the permanent disability suffered, as discussed above and the fact that multiplier of 13 has been adopted in this case. The ends of justice should be met if petitioner is held entitled to 20% of loss of earning capacity as future attendant charges. Accordingly, he is entitled to 20% of Rs.24,88,551 = 4,97,710.2 (round of 4,97,710/) . The petitioner is therefore entitled to compensation for future attendant charges i.e Rs. 4,97,710/.
57. Compensation for physical disfigurement due to permanent disability The physical disfigurement cannot be recompensed in terms of money. 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.1,00,000/ as compensation under this head for the petitioner would be just and petitioner is entitled for the same. Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........28/36
58. Liability to pay compensation Ld counsel for insurance company has argued that insurance company may be given recovery rights to recover award amount from the driver and the owner of the offending vehicle because at the time of accident the offending vehicle was without a valid permit. It was further argued that the insurance company has sent notice u/s 12 R 8 CPC to Pramod Yadav driver of the offending vehicle and Devender owner of the offending vehicle and it was duly sent under UPC and they have failed to produce the valid and effective permit and as such insurance company was entitled to be given recovery rights. The Insurance company has examined R3W1 Vikram Singh, Assistant Oriental Insurance company who has placed on record the copy of the insurance policy as Ex.R3W1/A, copy of the notice u/o 12 R 8 CPC alongwith Ex. R3W1/B registered AD, UPC Ex. R3W1/C respectively. In his crossexamination by Ld counsel for the petitioner he has stated that notice u/s 12 R 8 CPC Ex. R3W1/B has been sent on 09/12/2010. He further stated in his crossexamination that affidavit of the clerk of the counsel or counsel has not accompanied the said notice. The AD card was never received by the insurance company. He further stated in his crossexamination that they did not make any efforts to get delivery report from the post office regarding service of the notice upon registered owner and driver of the vehicle.
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59. Ld counsel for the petitioner vehementally argued that service of the notice u/o12 R 8 CPC has not been proved in view of the deposition in crossexamination of R3W1. It is further argued that by giving notice to the owner and the driver, the responsibility of the insurance company and its onus to prove the vehicle was not driven with valid and effective permit has not been discharged. It is also pointed out that nothing in that regard was alleged in the written statement by the insurance company and the contentions in that regard was therefore an afterthought.
60. I have perused the notice u/s 12 R 8 CPC Ex. R3W1/B there is nothing mention as to in what manner the permit of the offending vehicle was not valid and effective. Admittedly, nothing is mentioned in the written statement by the insurance company that the offending vehicle was being driven without permit and effective permit. Thus, insurance company has alleged the violation of the permit at the fag end of the enquiry and even failed to discharge the onus of proving the said fact by leading admissible and effective evidence in that regard. I therefore, do not find any substance in the arguments of the insurance company that it was entitled to the recover the award amount from the owner and driver of the offending vehicle. All the respondents are therefore jointly and severally liable to pay the awarded compensation. Respondent no. 4 insurance company being insurer of the offending Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........30/36 vehicle is liable to reimburse the insured of the offending vehicle. The insurance policy Ex. R3W1/A was issued in the name of Devender Singh respondent no. 2 and there is new endorsement of the policy in the name of respondent no.3 subsequent owner of the offending vehicle. Therefore, it is insurance company/Respondent no. 4 the insurer of the offending vehicle who is liable to pay compensation to the petitioner.
61. In view of the above discussions, the total compensation to which the petitioner Rajesh Grover is entitled comes as under : 1 Compensation for the expenses incurred on medical treatment Rs.10,26,840/ 2 Compensation for conveyance , special diet and attendant charges (Rs. 50,000 each) Rs.1,50,000/ 3 Compensation for future attendant charges Rs. 4,97,710/ 4 Compensation for pain and suffering Rs.1,00,000/ 5 Compensation for loss of amenities of life Rs. 1,00,000/ 6 Compensation towards physical Rs.1,00,000/ disfigurement due to permanent disability 7 Compensation for loss of earning Rs.24,88,551/ capacity on account of permanent disability Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........31/36 Total Rs. 44,63,101/
62. In view of the above discussion, issue no. 2 is decided in favour of the petitioner and against the respondents. The petitioner is thus entitled to a sum of Rs. 44,63,101/ as compensation along with interest @ 7.5% per annum from the date of filing of the petition till its realization from the respondents , payable by the Insurer i.e respondent no. 3.
63. RELIEF In view of the aforesaid discussions, it is hereby held that petitioner is thus entitled to Rs. 44,63,101/ as compensation alongwith interest @7.5 % per annum from the date of filing of the petition till its realization from the respondents payable by respondent no.4, Oriental Insurance Co. Ltd/ insurer.
64. Since the amount awarded should not be frittered away, Hon'ble Supreme Court of India in a case titled 'G.M. Kerala State Road Transport Corporation Vs. Susamma Thomas' reported in 1994(2) SCC 176, has laid guidelines pronouncing that in a case of compensation, it is appropriate that Tribunals do keep in mind the principles enunciated by this court in 'Union Carbide Corporation Vs. Union of India', 1991(4) SCC 584, in the matter of appropriate investments to Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........32/36 safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. Guidelines inter alia included of investment of share of the claimants in FDRs in nationalized banks with conditions that bank will not permit any loan or advance on the fixed deposits and interest on the amount invested is paid monthly/periodically directly to the claimant and such investment may be made in more than one fixed deposit. In case of any exigency, claimants are at liberty to apply to Tribunal for withdrawal of such investment.
65. In terms thereof, out of the awarded sum, 50% sum be invested in 14 FDR's of equal (almost) in name of petitioner in State Bank of India. One FDR be invested for a period of one year; One FDR be invested for a period of two years; One FDR be invested for a period of three years; One FDR be invested for a period of four years; One FDR be invested for a period of five years; One FDR be invested for a period of six years; One FDR be invested for a period of seven years; One FDR be invested for a period of eight years; One FDR be invested for a period of nine years; One FDR be invested for a period of ten years; One FDR be invested for a period of eleven years; One FDR be invested for a period of twelve years; One FDR be invested for a period of thirteen years; One FDR be invested for a period of fourteen Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........33/36 years The FDRs shall have no facility of loan or advance. Petitioner can withdraw the interest monthly. In case of exigency, petitioner can move application for premature withdrawal before this Tribunal, as per law.
66. Aforesaid fixed deposits are to be made by State Bank of India, Tis Hazari in the following manner: (1) The State Bank of India, Tis Hazari, shall open separate Savings Account in the name of claimant and the entire interest on the aforesaid fixed deposits be credited in the said accounts. The fixed deposits shall be automatically renewed till the period prescribed by the court. (2) The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Account. Claimant after due verification and the Bank shall issue photo identity card/pass book with attested photograph to claimant to facilitate his identity.
(3) No cheque book be issued to the claimant without the permission of this court.
(4) Half yearly statement of account be filed by the Bank in this court.
(5) The original FDRs shall be retained by the Bank in Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........34/36 the Safe custody. However, the original pass book shall be given to the claimant alongwith the photocopy of the FDRs. (6) The original Fixed Deposit Receipts shall be handed over to the claimant at the end of the fixed deposit period.
(7) No loan, advance or withdrawal shall be allowed on the said FDRs without the permission of this court. (8) On the request of the claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India according to the convenience of the claimant.
67. In terms of directions contained in case of UOI Vs Nanisiri, in MAC Appeal no. 682/2005 , order dated 13.1.2010 of Hon'ble Mr. Justice J.R Midha, Respondent no. 4/Oriental Insurance Co. Ltd is directed to directly deposit 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 (Mobile no. 09717044322) and the Manager concerned of SBI, Tis Hazari Court to release the balance amount by transferring the same to the Saving Bank Account of the petitioner /claimant. 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 said period, Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........35/36 Manager SBI, Tis Hazari to also furnish compliance report within 15 days of deposit of award sum. Claimant to do the necessary formalities in respect of the bank account(s). Nazir to keep the copy of Award in a miscellaneous file for awaiting compliance report from all concerned, which is to be put up on 18/04/2011.
68. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 14/03/2011 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE(NDPS) (WEST)DELHI Suit no. 56/10/07 (Old suit no.32/09 ) Page no..........36/36