Delhi District Court
Shanti vs . Cholamandal Ms General Insurance Co. ... on 5 January, 2012
Shanti Vs. Cholamandal MS General Insurance Co. Ltd.
1
IN THE COURT OF SHRI SANJIV JAIN PO : MACT02 : SOUTH DISTRICT
SAKET COURTS : NEW DELHI.
In Suit No. 678/10
1. Harrison S/o Late Sh. Francis
2. Herald S/o Late Sh. Francis
Both Residents of
R/o G1st 197, Madangir,
New Delhi - 110 062
...... Petitioner
Versus
1. Cholamandlam MS General Insurance Co. Ltd.
5th Floor, TIAM House,
72, Raja Salai, Chennai - 600 001
2. Sh. Rajinder Kumar S/o Sh. K Lal
R/o CI/995, Madangir,
New Delhi
......Respondents
Date of Institution : 21.08.2007
Date of reserving of judgment/order : 05.01.2012
Date of pronouncement : 05.01.2012
J U D G M E N T :
1. This petition u/s. 166 & 140 of the M.V. Act, 1988 as amended upto date (hereinafter referred to as Act) has been filed by Smt. Shanti Devi & Ors. claiming a compensation of Rs.15,00,000/ for the injuries Suit No. 678/10 Page No.1/13 Shanti Vs. Cholamandal MS General Insurance Co. Ltd. 2 sustained by her in an accident which took place on 16.06.07 at about 9.00 PM at the Red Light Madangir, New Delhi.
2. The case of the petitioner in brief is that on 16.06.07 at about 9.00 pm, she was going on foot. When she reached at the Red Light Madangir, all of a sudden a 2wheeler scooter DL 3S AK 0272 came at a fast speed being driven in a rash and negligent manner and hit her. She fell down on the road and sustained multiple injuries. She was taken to AIIMS and thereafter shifted to Safdarjung hospital. It was stated that the respondent no.2 was the driver/owner of the offending scooter and it was insured with respondent no.2.
3. Notice of the petition was given to the respondents. Both the respondents contested the petitions and filed their written statements. It was stated on behalf of respondent no.1 that the offending vehicle was insured only till 26.10.04 i.e. much before the date of alleged accident and as such respondent no.1 has no legal, contractual or statutory liability to pay compensation to the petitioner. Application was also moved for deleting the name of respondent no.1 from the array of parties. It was stated on behalf of respondent no.2 that no accident as alleged occurred from the vehicle in question. The respondent no.2 denied the allegations of the petitioner and alleged that entire story is concocted and cooked by the petitioner. Suit No. 678/10 Page No.2/13
Shanti Vs. Cholamandal MS General Insurance Co. Ltd. 3
4. Vide order dated 02.03.10 the name of respondent no.1 was deleted from the array of parties. During the pendency of the proceedings, the petitioner died and LR's of the petitioner were impleaded.
5. From the pleadings following issues were framed :
i. Whether petitioner suffered injuries in an accident which took place on 16.06.2007 at about 9.00 PM involving two wheeler scooter bearing no. DL 3S AK 0272 due to rash and negligent driving of respondent no.2, owned by respondent no. 2 and insured with respondent no.1? OPP.
ii. Whether petitioner is entitled to compensation? If so, to what amount and against which of the respondents?
iii. Relief.
6. The parties were thereafter called upon to substantiate their case by leading evidence.
7. Sh. Harrison appeared in the witness box as PW1. He is the son of the petitioner. He tendered his affidavit in evidence Ex.PW1/A and the documents Ex.PW1/1 to Ex.PW1/20 including the certified copy of the criminal record wherein he reiterated the facts as stated in the petition. He stated that huge amount was spent on the treatment of Smt. Shanti. She used to earn Rs. 5000/ p.m. from stitching and sewing Suit No. 678/10 Page No.3/13 Shanti Vs. Cholamandal MS General Insurance Co. Ltd. 4 works at home and the said income was a big support for the family.
8. Respondent no.2 did not examine any witness.
9. I have heard the arguments advanced by Ld. counsel Ms. Kanta Chaudhary for the petitioner and Sh. Mayank for respondent no.2 and perused the record.
I S S U E No . 1
10. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal is simply to quantify the compensation which is just rational and reasonable on the basis of inquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs. New India Assurance Co. Ltd. 2001 ACJ 421 SC.
11. PW1 has stated that on 16.06.07 at about 9.00 PM his mother was going on foot. At the red light Madangir, a scooter DL 3S AK 0272 Suit No. 678/10 Page No.4/13 Shanti Vs. Cholamandal MS General Insurance Co. Ltd. 5 came at a fast speed being driven by respondent no.2 in a rash and negligent manner and hit her as a result thereof she fell down and sustained multiple injuries. He also placed on record the charge sheet filed U/s 173 Cr.P.C. Ex.PW1/20 of the case registered at the police station Ambedkar Nagar vide FIR 437/07. Perusal of the site plan and the statement of Smt. Shanti revealed that at the red light Madangir, the scooter DL 3S AK 0272 had hit her. It was being driven in a rash and negligent manner and at a fast speed by respondent no.2. There were fresh damages on the body of the scooter. Nothing came in the examination of PW1 to draw an inference that the offending scooter was not involved in the accident or it was not being driven by respondent no.2 in a manner, so rash and negligent. The MLC of the petitioner reveals that she sustained grievous injuries. The Hon'ble High Court of Delhi in a case titled as 2009 ACJ 287 National Insurance Company Limited Vs. Pushpa Rana has held that where a petitioner files the certified copy of the criminal record showing completion of investigation, issuance of chargesheet, certified copy of the FIR, all these documents are sufficient proof to come to the conclusion that the driver was negligent. It has also come on record that respondent no. 2 was also the owner of the offending vehicle. Thus, issue no.1 is decided in favour of the petitioner and against the respondent no.2.
Suit No. 678/10 Page No.5/13
Shanti Vs. Cholamandal MS General Insurance Co. Ltd. 6 I S S U E No. 2
12. The petitioner has claimed Rs. 15,00,000/ as compensation in respect of the injuries sustained by her. In a road accident a person is entitled to compensation for the pecuniary and nonpecuniary damages.
13. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money;
whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters ie. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of expectation of life, ie. on account of injury Suit No. 678/10 Page No.6/13 Shanti Vs. Cholamandal MS General Insurance Co. Ltd. 7 the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
Let me assess the compensation which the petitioner is entitled for under different heads.
COMPENSATION FOR EXPENSES INCURRED ON MEDICAL TREATMENT :
14. The petitioner has filed the MLC alongwith the charge sheet and the casualty card Ex.PW1/B perusal of which reveals that she had multiple injuries. She was advised Xray for pelvis and spine. She was referred to Safdarjung hospital for further management. As per the Xray report she had fracture in the pelvis region. She followed up her treatment in Safdarjung hospital till 23.01.07. She has placed on record the medical bills for Rs. 6540.83. Looking into the injuries, medical bills and the documents, I award a compensation of Rs. 7,000/ to the petitioner on account of medical expenses.
COMPENSATION FOR PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
15. Testimony of PW1 shows that due to the accident the petitioner, Smt. Shanti sustained multiple injuries. She had fracture in her pelvis. She Suit No. 678/10 Page No.7/13 Shanti Vs. Cholamandal MS General Insurance Co. Ltd. 8 attended the hospital for quite a long time. Looking into the injuries and the facts and circumstances of the case, I award a sum of Rs. 20,000/ towards pain & sufferings.
COMPENSATION FOR SPECIAL DIET, ATTENDANT CHARGES AND CONVEYANCE CHARGES :
16. Testimony of PW1 and the medical record show that the petitioner sustained multiple injuries. She had fracture in her pelvis. She remained bed ridden for long. She was advised special diet. She regularly followed up her treatment as an OPD patient and might have taken the help of an attendant for pursuing ordinary pursuits. Taking into consideration, the multiple injuries and all the facts, I award a sum of Rs. 8,000/ towards special diet, conveyance and attendant charges. COMPENSATION FOR LOSS OF INCOME :
17. PW1 has stated that the petitioner used to earn Rs. 5000/ from stitching and sewing at home. In this case no documentary proof has been filed to prove the income but there is no denial from the fact that the petitioner was a housewife and used to contribute invaluable services to the family.
In the case of Arun Kumar Aggarwal & Another Vs National Insurance Company & Others, 2010 ACJ 2161 (Supreme Court), it was held that :
Suit No. 678/10 Page No.8/13
Shanti Vs. Cholamandal MS General Insurance Co. Ltd.9
The contribution made by the housewife to the house is invaluble and cannot be computed in terms of money. The gratuitous services rendered by the wife with too love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife or the mother does not work by the clock. She is in constant attendance of the family through out the day and night, unless she is employed and she is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes etc. She teach a small children and small provides invaluable guidance to them for their future life. A housekeeper or maid servant can do the household work such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children. It was held that the approach to compute the compensation by relying upon the minimum wages payable to a skilled worker does not comment our approval because it is most unrealistic to compare the gratitous services of the housewife/mother with work of a skilled worker.
18. In the present case the petitioner was rendering gratuitous services to her family. One has to admit that in the long run, the services rendered by a woman in the household sustain a supply of labour to the economy and keep the human societies by weaving the social fabric and keeping it in good repair.
Suit No. 678/10 Page No.9/13
Shanti Vs. Cholamandal MS General Insurance Co. Ltd. 10
19. Taking into consideration all the facts and circumstances, the value of the domestic services, her income in the present case is assessed as Rs. 60,000/ p.a. The petitioner remained bed ridden for quite a long time. Taking a period of 03 months, the loss of income is calculated as 3 / 12 x 60000 = 15,000/. I, therefore, award a sum of Rs. 15,000/ to the petitioner for Loss of Income.
20. Perusal of the record reveals that during the pendency of the petition, the petitioner died and her LR's were impleaded. It has also come on record that the petitioner took loan for her treatment and meeting day to day expenses. Even otherwise, the LR's are entitled to inherit the Estate of the deceased.
21. Thus the total compensation in favour of the petitioners is assessed as under :
MEDICAL EXPENSES : Rs. 7,000/
PAIN & SUFFERINGS &
ENJOYMENT OF LIFE : Rs. 20,000/
SPEICAL DIET, ATTENDANT &
CONVEYANCE CHARGES : Rs. 8,000/
LOSS OF INCOME : Rs. 15,000/
==========
TOTAL : Rs. 50,000/
==========
Suit No. 678/10 Page No.10/13
Shanti Vs. Cholamandal MS General Insurance Co. Ltd. 11 L I A B I L I T Y
22. As the offending vehicle was being driven by respondent no.2 therefore, primary liability to compensate the petitioner remains with that of respondent no. 2. Since the vehicle is also owned by respondent no. 2 so he is vicariously liable to compensate the petitioner.
R E L I E F
23. In view of my findings I award a sum of Rs. 50,000/ (Rs.25,000/ each) as compensation with interest @ 7.5% per annum from the date of filing the petition till the date of its realization (except the period from 06.10.09 to 05.05.11) in favour of the petitioners and against the respondent no. 2 on account of his liability.
24. Respondent No. 2 is directed to pay the awarded amount by way of cheque in favour of the petitioners, to be deposited in this Tribunal, within a period of 45 days of this order failing which he shall be liable to pay future interest @ 12% per annum on the awarded amount till its realization (for the delayed period). He shall intimate to the petitioners about depositing the cheque in terms of the award at the address of petitioners mentioned in title of this award, so as to facilitate the petitioners to withdraw the same.
25. Copy of this Judgment be given to the parties for compliance. Suit No. 678/10 Page No.11/13
Shanti Vs. Cholamandal MS General Insurance Co. Ltd. 12
26. Nazir attached to the Tribunal of undersigned is directed to issue notice to the petitioners immediately on deposit of the cheque of the awarded amount by the Respondent No. 2 in this Tribunal so as to facilitate them to get the same released.
27. File be consigned to Record Room after giving the cheque to the petitioner.
Announced in the Open Court
on 05th Day of January, 2012 (SANJIV JAIN)
PO : MACT02 : SOUTH DISTRICT
SAKET COURTS : NEW DELHI
05.01.2012
Suit No. 678/10 Page No.12/13
Shanti Vs. Cholamandal MS General Insurance Co. Ltd.
13 Shanti Vs. Cholamandalam Suit No. 678/10 05.01.2012 Present: Ld. Counsel for the parties. Arguments heard.
Vide separate order of even date a compensation of Rs. 50,000/ (Rs. 25,000/ each) alongwith interest @ 7.5% per annum (except the period from 06.10.09 to 05.05.11) from the date filing of petition till realization of the amount is passed in favour of petitioners.
Copy of the award be given to the parties.
File be consigned to Record Room.
(SANJIV JAIN) PO : MACT02 : SOUTH DISTRICT SAKET COURTS : NEW DELHI 05.01.2012 Suit No. 678/10 Page No.13/13