Delhi District Court
Pamela Rooks vs . Raghu Nand Rai on 31 May, 2012
Pamela Rooks Vs. Raghu Nand Rai
1
IN THE COURT OF SHRI SANJIV JAIN : PRESIDING OFFICER : MACTII
SOUTH DISTT. : SAKET COURTS : NEW DELHI
In Suit No. 711/10
Unique Case ID : 02403C0519312006
Pamela Rooks (Sh. Ryan Rooks was substituted
D/o Amar Juneja vide Order dated 23.10.10).
R/o D368, Defence Colony,
New Delhi
...... Petitioner
Versus
1. Sh. Raghu Nand Rai
S/o Late Baleshwar Rai
R/o B63, Sultanpur, New Delhi
2. Richard Hollkar
S/o Sh. Yashwant Rai Hollkar
R/o D368, Defence Colony
3. The National Insurance Company Ltd.
Div. No. 10, Flat No. 101106,
N1, BMC House,
Cannaught Place, New Delhi
4. Ms. Manjula Nirman
R/o C27, JVTS Garden,
Chatterpur Extn., New Delhi
Also at : CB10, DDA Flats,
Munirka, New Delhi.
Suit No. : 711/10 1/30
Pamela Rooks Vs. Raghu Nand Rai
2
5. The National Insurance Co. Ltd.
Div. No. 10, Flat No. 101106,
N1, BMC House,
Cannaught Place, New Delhi .......Respondents
Date of Institution : 22.09.2006
Date of reserving of judgment/order : 10.05.2012
Date of pronouncement : 31.05.2012
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. Pamela Rooks claiming a compensation of Rs. 50,00,000/ for the injuries sustained by her in an accident which took place on 25.11.05 at about 3.30 AM at TPoint Mehrauli Vasant Kunj Road and Church Road, New Delhi.
2. Relevant facts necessary for adjudication and disposal of the present petition as emanating from the same, apart from those stated herein above are that :
(a) On the night of 25.11.05 at about 3.30 AM the petitioner was travelling in a Land Cruiser car bearing no. HR 26 M 3591 Suit No. : 711/10 2/30 Pamela Rooks Vs. Raghu Nand Rai 3 being driven by respondent no.1. When the car reached at T Point, Mehrauli Vasant Kunj road, Church road, an Alto car bearing no. DL 3C M 8934 owned by respondent no.4 being driven by its driver came from the opposite side and hit the Land Cruiser car. The accident resulted in the death of the driver of the Alto car and injuries on the person of the petitioner. She was removed to the hospital and remained admitted upto 28.04.06.
(b) A case was registered vide FIR no. 846/05 at the Police Station Vasant Kunj.
(c) The petitioner was 48 years of age. She was a film maker/design consultant and used to earn Rs. 40000/ p.m. It was stated that Rs. 29,01,658/ have already been incurred on her treatment out of which Rs. 2,60,000/ was paid by the Insurer of the petitioner. It is stated that the petitioner is semi unconscious and Rs. 75,000/ p.m. is being spent on her treatment. She cannot sit and is being looked after by two nurses for 24 hours.
Suit No. : 711/10 3/30
Pamela Rooks Vs. Raghu Nand Rai 4
(d) It is stated that the accident has occurred due to the negligence of the driver of the Alto car. Because of the accident, the life of the petitioner has spoiled as it will not be possible for her to do work in future.
3. Notice of the petition was given to the respondents. Pursuant to the same, respondents appeared and filed their written statements.
4. It was stated on behalf of respondent no.1 and 2 that there was no negligence on the part of respondent no.1 in driving the vehicle. They have no liability to pay the compensation. The compensation, if any is to be paid by the insurer, respondent no.3 or by respondent no.4 and 5, the owner and the insurer of the Maruti car. It was stated that the accident had occurred due to the negligence of the driver of the Maruti car who also died in the same accident. It was being driven at an uncontrollable speed due to which it jumped over to the other side of the road and landed on the vehicle driven by respondent no.1. It was stated that the Land Cruiser vehicle was fully insured with respondent no.3.
5. It was stated by respondent no.4 that on 24.11.05 night, her son Sahil and his two friends were coming from Mehrauli after attending a marriage party in an Suit No. : 711/10 4/30 Pamela Rooks Vs. Raghu Nand Rai 5 Alto car DL 3C M 8934 being driven by Devansh Khurana. When the car reached the Church road TPoint of Mehrauli Mahipal Pur road, due to sudden problem in the rear wheel, the car lost control and hit the pedestrian side road pavement. By the time, all the three passengers of the car could get over the shock and recompose, a Land Cruiser SUV no. HR 26 M 3591 being driven rashly, dangerously and negligently by the claimant herself, coming from the opposite side at a very high speed crossed the road divider and hit the abovesaid stationary Alto car which facts are also narrated in the FIR. It was stated that the Land Cruiser car hit the Alto Car causing brutal impact on the driver side as a result thereof Devansh Khurana died on the spot and other persons sitting in the Alto car sustained injuries. Abhishek Rawat who was sitting right behind the driver's seat also succumbed to the injuries.
6. The respondent no.4 also denied the averments made in the petition and alleged that the accident has occurred due to the rash and negligent driving of the Land Cruiser car by the claimant/petitioner herself.
7. Respondent no.5 also denied its liability as insurer stating that the insured vehicle no. DL 3C M 8934 was being driven by the person without the permission or authority of the insured contrary to the terms of the policy Suit No. : 711/10 5/30 Pamela Rooks Vs. Raghu Nand Rai 6 without holding a proper and valid driving license. It however, admitted that the vehicle was insured in the name of respondent no.4 vide policy no. 9119830 and it was valid for the period from 12.06.05 to 25.11.05.
8. Respondent no.3 also admitted that the vehicle no. HR 26 M 3951 was insured with it at the time of accident but denied its liability stating that it is the case of the petitioner itself that the vehicle no. HR 26 M 3591 was not at fault and it was the driver of the Alto car DL 3C M 8934 who was driving the car rashly and negligently.
9. Replication is also filed by the petitioner to the written statement filed on behalf of respondent no.4 and 5 denying the allegations made in the written statement reiterating the facts as stated in the petition.
10. During the proceedings an application was moved on behalf of the petitioner for appointment of a guardian U/o 32 of the Code of Civil Procedure stating that neurological condition of the petitioner was not well and she was in a persistent vegetative state. The application was allowed vide order dated 06.03.09 and Sh. Ryan R Rooks, the son of the petitioner was appointed as her guardian. The petition was accordingly amended. Suit No. : 711/10 6/30
Pamela Rooks Vs. Raghu Nand Rai 7
11. From the pleadings of the parties following issues were framed vide order dated 13.08.09 :
i) Whether petitioner Pamela Rooks received injuries due to an accident on 25.11.05 which was caused due to collision between Land Cruiser car no. HR 26 M 3591 being driven by R1, rashly and negligently, vehicle owned by R2 and insured with R3 and vehicle Alto car no. DL 3C M 8934 driven by its driver who expired in the accident and vehicle owned by R4 and insured with R5? OPP.
ii) The amount of compensation, the petitioner is entitled to?
iii) Relief.
12. Parties to the present petition were thereafter called upon to substantiate their case by leading evidence. During the pendency, the petitioner Pamela Rooks expired on 01.10.10 and on an application, the son of the petitioner/deceased was substituted as her Legal Heir vide order dated 23.10.10 as the deceased during her lifetime had divorced her husband.
13. The petitioner examined Sh. Pyara Singh, Medical Record Supervisor, Sir Ganga Ram Hospital as PW1, Dr. M Lal Sr. Medical Officer, Ashlok Nursing Suit No. : 711/10 7/30 Pamela Rooks Vs. Raghu Nand Rai 8 Home as PW2, Sh. Naveen Kumar, Medical Record Incharge, Max Balaji Hospital, IP Ext. as PW3, Sh. S S Rawat, MRT, Safdarjung hospital as PW4, Dr. Ubaid Hamid, Asstt. Medical Supdtt. Max Hospital, Saket as PW5, Sh. Saket, Customer Care Executive, TTK Healthcare Ltd. as PW6, Sh. Ryan R Rooks as PW7, Smt. Sheeba as PW8, Sh. Raghu Nandan Roy as PW9 and Dr. Bipin Swaran Walia, Neuro Surgeon, Max Hospital.
14. No witness was examined by the respondents.
15. I have heard the arguments advanced by Ld. Counsel Sh. Navneet Goel, for the petitioner, Ms. Manu for the respondent no.3 and Sh. R K Gupta for respondent no.5.
16. It was submitted by Ld. counsel for the petitioner that the petitioner was travelling in a Land Cruiser car which was hit by a Maruti Alto car coming from the opposite direction after jumping over the central verge. The driver of the Alto car died on the spot. The petitioner Pamela Rooks sustained head injuries and became unconscious. She was taken to Safdarjung hospital and then shifted to Max Balaji Hospital where she remained admitted from 25.11.05 to 05.12.05. She was operated and put on ventilator. From 05.12.05 to 29.04.06 she remained admitted in Max Hospital at Saket. Suit No. : 711/10 8/30
Pamela Rooks Vs. Raghu Nand Rai 9 Another surgery was performed i.e. Craniotomy however, she remained unconscious. Her treatment continued till her death. She had 90% disability as evident from the certificate issued by Pt. Madan Mohan Malviya Hospital. Ld. counsel stated that although the postmortem of the deceased was not conducted but the medical record goes to show that she never recovered from the injuries after the accident. Ld. counsel stated that the deceased was 48 years of age and used to work as consultant with M/s Reva Developers and get Rs. 40000/ p.m. In the year 200304 her income was Rs. 5,05,600/ and in the year 200405 her income has been shown as Rs. 4,80,000/. Ld. counsel stated that the witnesses examined on behalf of the petitioner corroborated the fact that the accident had occurred due to the rash and negligent driving of Alto car by its driver resulting multiple injuries to the petitioner which ultimately proved fatal. Ld. counsel stated that when the petitioner met with the accident her son was studying and was financially dependent on the deceased. She was divorced by her husband. Ld. counsel stated that the deceased/petitioner was travelling in the car not as a owner but as a third party.
17. Ld. counsel for the respondent no.3 contended that it is a case of composite negligence as two vehicles were involved in the accident and there was a head on collision. Ld. counsel for respondent no.5 submitted that as per the Suit No. : 711/10 9/30 Pamela Rooks Vs. Raghu Nand Rai 10 FIR, the accident had occurred due to the rash and negligent driving of the Land Cruiser car which jumped over the central verge and hit the Alto car. The case was also registered against the driver of the Land Cruiser car and charge sheet was also filed against him. The respondent no.1 was the driver of the petitioner and it was the petitioner who had borrowed the car from the registered owner before the accident.
18. I have considered the submissions and perused the record.
19. My findings on the issues are as follows :
I S S U E No. 1
20. It is well settled law that where a 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 has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. 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 Suit No. : 711/10 10/30 Pamela Rooks Vs. Raghu Nand Rai 11 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.
21. PW9 has stated that on 25.11.05 he was coming from International Airport to Bhati Mines in the car no. HR - M 3598. The deceased was sitting in the car. When he was proceeding near the red light, Vasant Kunj, Church road, in the meantime, an Alto car, coming from the opposite direction, all of a sudden climbed over the central verge and hit against his car on the right side. Due to the impact, the left rear tyre of his car got burst. Smt. Pamela Rooka sustained injuries on her head and fell down on the seat of the car. He informed the PCR and the PCR van removed her to the hospital. The driver of the Alto car died on the spot. He admitted that the charge sheet was filed against him, however, denied that it was his vehicle which climbed over the pavement or that it hit against the Alto car. He stated that he was working with the injured and holding a valid driving license at the time of accident which was impounded by the police. PW7 Ryan Rooks has stated that the accident had occurred on 25.11.05 at about 3.30 AM at Mehrauli Vasant Kunj road, Church road, TPoint. He was informed that his mother was travelling in Land Cruiser car no. HR 26 M 3591 while going from Airport to Bhati Mines, Chattarpur. A Maruti car bearing no. DL 3C M 8934 coming from the opposite direction at an uncontrollable speed hit the road divider, Suit No. : 711/10 11/30 Pamela Rooks Vs. Raghu Nand Rai 12 jumped over it and fell on the Land Cruiser. He stated that due to forceful impact of fall of the car on Land Cruiser, his mother sustained dangerous head injuries and became unconscious. He stated that the accident had occurred due to the negligence on the part of the Maruti Alto car as he was driving the car at a fast and uncontrollable speed. He stated that a case was registered by the police at police station Vasant Kunj vide FIR 646/05 with respect to the accident. Vide order dated 17.08.11 record of the criminal case was called from the DIU South West Distt. and the criminal Court. The Inspector DIU after investigation had filed a cancellation report which was accepted by the Ld. ACMM vide order dated 08.09.09. Perusal of the record reveals that both the vehicles had badly damaged in the accident. Investigation revealed that when the SI M R Meena of police station Vasant Kunj reached the spot on receipt of call about the accident vide DD no. 8B he found the car DL 3C M 8934 badly damaged and left rear wheel out of the car. He went to Safdarjung hospital, collected the MLC of the petitioner Pamela whom the doctor had declared unfit for statement. The doctor on the MLC of Abhishek Rawat had declared him dead. He got the spot photographed and recorded the statement of Ct. Om Parkash who had stated that on the night of 2425.11.05 at about 3.45 AM while on patrolling he reached at Mahipal Pur main road, Church road TPoint where he met H. C. Shanti Lal. In the meantime, the Alto car DL 3C M 8934 came from the Suit No. : 711/10 12/30 Pamela Rooks Vs. Raghu Nand Rai 13 side of Mehrauli. At Church road TPoint all of a sudden the rear tyre of the car came out and the car got imbalanced. It struck against the central verge. In the meantime, a Land Cruiser car HR 26 M 3591 was coming from Mahipal Pur side being driven at a fast speed and in a rash and negligent manner which after jumping from the central verge hit the Alto car which turned turtle twice. The Alto car driver and the passenger sitting therein sustained injuries. PCR also came and it got removed the injured to the hospital. He had stated that the Land Cruiser car was being driven by Raghu Nandan Roy in a rash and negligent manner. He seized both the vehicles, got them mechanically inspected and prepared the site plan. He also got conducted the postmortem of the deceased Devesh Khurana.
22. In this case, on 28.11.06, the investigation was transferred to DIU, South West Distt. Sh. R S Dahiya, Inspector did the investigation and his investigation revealed that Sh. Raghu Nandan Roy was falsely involved in this case. It was the Alto car driver who was at fault. It had jumped over the central verge of the road and came on the other side and hit the Land Cruiser car which was coming on that side. He again recorded the statement of Ct. Om Parkash who stated that the Alto car had jumped from the central verge and came on the other side of the road and it was hit by the Land Cruiser car. He also recorded the statement of one Richard Holkar who Suit No. : 711/10 13/30 Pamela Rooks Vs. Raghu Nand Rai 14 was travelling in the Land Cruiser car at the time of accident. His investigation revealed that due to coming out of the rear left wheel of the Alto car, the car got imbalanced, broke the cable wire of the central verge, went on the other side of the road and came in front of the Land Cruiser car which was coming from the opposite side. The site plan filed with the investigation also corroborates the fact that the Alto car had jumped over the central verge when it was hit by the Land Cruiser car which was coming from the opposite side. Richard Holker in his statement to the police had stated that near T Point Church road, suddenly a Maruti car came from the opposite side at a high speed, crossed over the divider and dashed into their car. Due to this impact, his SUV turned and the car also turned. The heavy speaker from that Alto car flunged through the back side of the car and hit Pamela on her head.
23. From the testimony of PW9, the investigation conduced by DIU, South West Distt., Site Plan and the statement of Mr. Richard Holker given to the police, I find that the Land Cruiser was coming in a right direction. It was the Alto car which jumped over the central verge and came in front of the Land Cruiser car resulting in an accident. The accident resulted in the death of two persons namely Devesh Khurana and Abhishek who were travelling in the Alto car and dangerous injuries on the person of Pamela Rooks which Suit No. : 711/10 14/30 Pamela Rooks Vs. Raghu Nand Rai 15 ultimately proved fatal. Nothing can be inferred from the testimony of the witnesses or record that the accident had occurred due to the rash and negligent driving of respondent no.1 as alleged by respondent no.4 and 5 in their written statements or it was a case of composite negligence as contended by the Ld. counsel for respondent no.3. Facts and circumstances rather show that the petitioner Pamela Rooks sustained injuries due to the accident on 25.11.05 which had occurred due to the collision between Land Cruiser car no. HR 26 M 3591 being driven by R1 and Alto car bearing no. DL 3C M 8934 driven by its driver who also expired in the accident and the collision was due to the jumping of the Maruti Alto car on to the Central verge which thereafter came on the opposite side.
24. It has also come on record that respondent no.1 was driving the Land Cruiser car, it was owned by respondent no.2 and insured with respondent no.3 and that the Maruti Alto car was owned by respondent no.4 and insured with respondent no.5.
25. Issue no.1 is accordingly decided in favour of petitioner and against the respondents.
I S S U E N o. 2
26. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Suit No. : 711/10 15/30 Pamela Rooks Vs. Raghu Nand Rai 16 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 non pecuniary 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 nonpecuniary 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 the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life." COMPENSATION FOR EXPENSES INCURRED ON MEDICAL TREATMENT Suit No. : 711/10 16/30 Pamela Rooks Vs. Raghu Nand Rai 17
27. PW7 has stated that in the accident her mother sustained severe head injuries with compound communited depressed fracture, right frontal, parietal, temporal with underlying contusions, fracture on 3rd and 4th rib on right side and 18 cm. long lacerated wound on right frontal temporal region. Due to the injuries she became unconscious and was in a vegetative state. She did not respond to anything. He stated that after the accident she was taken to Safdarjung hospital in an unconscious condition where her MLC was prepared. On the same day she was shifted to Max Balaji Hospital where she remained admitted form 25.11.05 to 05.12.05. During hospitalisation she was operated on head on 25.11.05 and a piece of skull bone was removed from the right side of her head. Extra accumulated blood inside the head was drain out. Some portions of blood cells were removed and she was put on ventilator. Tracheostomy was done surgically on 01.12.05 and a tube was started on 05.12.05 for giving liquid food to her. Silicon Cathetor was also affixed which was changed at regular interval. He stated that on 05.12.05 she was shifted to Max hospital at Saket in Neuro Intensive Care unit from 05.12.05 to 29.04.06. On 30.01.06 she was operated and a programmable valve was affixed inside the skull after doing craniotomy. The said valve was inside her skull till her death. He stated that her body could not tolerate and tracheotomy was again implanted. She also developed ulcer inside her stomach. She continued to be in vegetative Suit No. : 711/10 17/30 Pamela Rooks Vs. Raghu Nand Rai 18 condition and did not respond to anything. She was again admitted in Max Hospital from 04.07.06 to 12.07.06 for closure of tracheotomy tube. She was then admitted to Sir Ganga Ram hospital for the period from 15.11.06 to 17.11.06, 14.04.07 to 20.04.07 where she was operated and stunt was inserted in her brain between the 3rd and 4th ventricles. Tracheotomy tube was also reaffixed. She was again admitted in the hospital from 27.07.07 to 28.07.07 and then in Ashlok hospital from 02.02.08 to 04.02.08 where tracheotomy tube was removed. She was again admitted in Ashlok hospital from 25.06.08 to 28.06.08 and remained in vegetative state. He stated that she never responded to any gesture, nor could give any indication and her condition was such that 24 x 7 care was necessary as she was incapable of doing any basic function due to her injury. She got infection and became permanently disabled. Physiotherapist was also employed for exercise and massage and till her death more than Rs. 1.0 Crore was spent on her treatment. He stated that her mother died on 01.10.10 due to the injuries sustained in the accident. She remained unconscious till her death. He filed her medical record Ex.P1 to Ex.P1051, photographs of the petitioner/her mother Ex.P1052 to Ex.P1057. He stated that his mother was covered under mediclaim policy, however, the insurer did not pay the full amount. As per the documents Ex.P1069 to Ex.P1078, in all a claim of Rs. 25,78,282/ was lodged out of which only Rs. 3,09,923/ was paid to them. Rest of the Suit No. : 711/10 18/30 Pamela Rooks Vs. Raghu Nand Rai 19 amount was not paid. He denied that his mother was not looked after by Physiotherapist or Rs. 1.0 crore were not incurred on her treatment or that no expense was incurred on special diet and attendant charges.
28. PW1 brought the record of the petitioner/deceased regarding her admission and discharge from 15.11.06 to 18.11.06 and again from 14.11.07 to 20.11.07 Ex.PW1/1 and Ex.PW1/2 (colly.) including the bills. PW2 brought the record of admission and discharge in Ashlok Nursing Home for the period from 27.07.07 to 28.07.07, 02.02.08 to 02.04.08 and 25.06.08 to 28.06.08 Ex.PW2/1 to 3 (colly.). He stated that the petitioner suffered from brain injury and her condition was just in a near vegetative state. PW3 brought the record of admission and discharge from 25.11.05 to 05.12.05 Ex.PW3/1 (colly.). PW4 brought the MLC and treatment record Ex.PW4/1 to Ex.PW4/2 of the petitioner. PW5 brought the record for the period from 05.12.05 to 29.04.06, 04.07.06 to 12.07.06 Ex.PW5/1 to Ex.PW5/11. PW6 brought the mediclaim file of the petitioner Ex.PW6/1 to Ex.PW6/525. PW10 had examined the petitioner on 25.11.05. He stated that the petitioner underwent emergency surgery and after that she remained unconscious and subsequently became vegetative. He proved his report Ex.PW3/1. He stated that the death could be possible in that condition. Suit No. : 711/10 19/30
Pamela Rooks Vs. Raghu Nand Rai 20
29. From the testimony of above witnesses, I find that the petitioner became unconscious after the accident. Despite her treatment, her condition remained vegetative. She could not respond to anything. She could not move her limbs to take her food herself etc. She was attended by the Nurses 24 x 7 from the very day of accident till her death. Physiotherapy was also done, however, she could not recover. Her condition became complicated day by day and she expired on 01.10.10. The petitioner has filed the bills of Rs. 63,40,403/. Looking into the injuries and the treatment she underwent and taking into account the part of the medical claim, she already received, I award Rs. 63,40,500/ to the petitioner towards medical expenses.
COMPENSATION TOWARDS ATTENDANT CHARGES
30. In the present case PW8 was the Head Nurse employed to look after the petitioner Pamela Rooks. She has stated that Pamela Rooks was in comma and bed ridden. She was not responding to anything. She could not move any of her limbs of her body, was unable to understand anything, could not take food herself and just lying as vegetative. She stated that there used to be two nurses every time on duty looking after her as they used to feed her through tube, clean her body, give medicines and a Physiotherapist used to come regularly for giving exercise. She looked after the deceased from Suit No. : 711/10 20/30 Pamela Rooks Vs. Raghu Nand Rai 21 February, 2006 till her death on 01.10.10. She used to be paid Rs. 12000/ p.m. Similarly, other nurses were also paid.
31. It has come in the testimony of PW8 that there used to be two full time nurses with the petitioner. PW8 being Head Nurse used to be paid Rs. 12,000/ p.m. Keeping in view the salary of Head Nurse as Rs. 12,000/ p.m., the salary of other nurse is taken as Rs. 8000/ p.m. The accident took place on 25.11.05. She died on 01.10.10, however, during that period she remained hospitalised for about six months and the nursing could have been taken care of by the hospital. In the present case, the petitioner has filed the bills regarding the transport and the attendants for Rs. 8,73,856/ and Rs. 4,253/. Keeping in view all these facts, I award Rs. 8,74,000/ and Rs. 4,300/ to the petitioner towards attendant charges and conveyance respectively.
32. In this case the petitioner did not file any bills as to the payment made to the Physiotherapist, however, it has come in the testimony of PW7 and PW8 that the doctor and Physiotherapist used to visit her for monitoring the condition of the petitioner/deceased and her daily exercise/massage to prevent bed soars. On this count, I award Rs. 50,000/ as charges paid to the Physiotherapist/visiting doctor.
Suit No. : 711/10 21/30
Pamela Rooks Vs. Raghu Nand Rai 22 COMPENSATION TOWARDS SPECIAL DIET
33. In this case the petitioner remained hospitalised for long. She took treatment from number of hospitals. In this case the petitioner was given special diet through feeding tube throughout the period. On this count I award Rs. 75,000/ to the petitioner towards special diet. LOSS OF DEPDENDENCY
34. It has come in the testimony of the petitioner's witness that the petitioner after the accident remained in vegetative state and could not recover. She died on 01.10.10. She was divorced by her husband. She was survived by her son who was studying and was financially dependent on the deceased. PW7 has stated that the deceased was gainfully employed and very well placed in life. She used to produce and direct films and documentaries working under the name and style of "ROOKS A V" for producing films/movies and documentaries. She has directed the movies namely Miss Beatty's children, Train to Pakistan, Dance like a man and also got award for the movies, she directed. He placed on record the copy of the award Ex.P1059. She also directed the documentaries namely girl child, wild life, Punjab is burnig, Turmoil in paradise etc. He placed on record the photograph of shooting Ex.A1 to Ex.A7 and details of her mother posted on the film maker's website, free encyclopedia website Ex.A8 to Ex.A11 copies Suit No. : 711/10 22/30 Pamela Rooks Vs. Raghu Nand Rai 23 of the documents Ex.A12 to Ex.A31. He stated that his mother was income tax assessee. She used to do consultancy job with Reva Employment Development and used to get Rs. 20000/ p.m. which amount was later revised from 01.02.10 to from Rs. 20000/ to Rs. 40000/. He placed the letters Ex.A36 to Ex.A37. He stated that her mother used to get royalties from the movies and writing work. He placed on record her income tax returns Ex.A38 to Ex.A50 and income tax orders Ex.P1059 to Ex.P1064 and her passport Ex.P1065 to Ex.P1068, copy of divorce Ex.A51. As per the income tax returns, her income in the year 200304 was Rs. 5,05,600/ and in the year 200405 was Rs. 4,80,000/ p.a. The tax used to be deducted at source. She was born on 28.02.58. Thus, from all these documents pertaining to income and income tax, it is evident that the annual income of the deceased was Rs. 4,80,000/. She was divorcee and was survived by her child who was financially dependent on her.
35. As per "Sarla Verma vs. DTC 2009 (6) SCALE 129 Case", onehalf is to be deducted towards living and personal expenses and a multiplier of '13' is required to be applied. After deducting the income tax, the net income of the deceased comes to Rs. 4,80,000 - Rs. 29,000 = Rs. 4,51,000/. In view thereof, total loss of dependency would come to (Rs. 4,51,000 - 1/2 of 4,51,000) x 13 = Rs. 29,31,500/.
Suit No. : 711/10 23/30
Pamela Rooks Vs. Raghu Nand Rai 24
36. I therefore, award a sum of Rs. 29,31,500/ to the petitioner towards "Loss of Dependency".
COMPENSATION TOWARDS LOSS OF LOVE AND AFFECTION
37. The petitioner at this stage of his mother. The loss of love and affection which he would have got from the deceased can not be quantified in terms of money. I therefore award a sum of Rs. 25,000/ to the petitioner towards "Loss of Love and Affection".
COMPENSATION TOWARDS FUNERAL EXPENSES
38. I award a sum of Rs. 10,000/ to the petitioner on account of "Funeral Expenses".
39. In view of my findings on issues, the petitioner is entitled to the compensation as under : MEDICAL EXPENSES : Rs. 63,40,500/ ATTENDANT & CONVEYANCE CHARGES : Rs. 8,78,300/ PHYSIOTHERAPY : Rs. 50,000/ SPECIAL DIET : Rs. 75,000/ Suit No. : 711/10 24/30 Pamela Rooks Vs. Raghu Nand Rai 25 LOSS OF DEPENDENCY : Rs. 29,31,500/ LOSS OF LOVE & AFFECTION : Rs. 25,000/ FUNERAL EXPENSES : Rs. 10,000/ ============== Total : Rs. 1,03,10,300/ ============== : L I A B I L I T Y :
40. As the offending vehicle bearing no. DL 3C M 8934 was being driven by the deceased driver of the Alto car, which was owned by respondent no.4, therefore primary/vicarious liability to compensate the petitioner is that of respondent no. 4. The offending vehicle was insured with respondent no. 5. therefore, respondent no. 5 becomes contractually liable to pay compensation to the petitioner for the abovesaid amount to the extent of liability of the insured.
In the instant case no evidence has been brought by the respondent no.5 to show that there was any breach of insurance policy by the Respondent No.4. Thus, I am of the view that Respondent No. 5 is liable to pay compensation for the above awarded amount to the extent of liability to the insured.
Suit No. : 711/10 25/30
Pamela Rooks Vs. Raghu Nand Rai 26 : R E L I E F :
41. Petitioner is thus awarded a sum of Rs. 1,03,10,300/ (Rs. One Crore Three Lac Ten Thousand Three Hundred only) alongwith interest @ 9% per annum from the date filing of petition till realization of the amount.
: RELEASE OF THE AWARDED AMOUNT : In the share of Petitioner (Ryan Rooks, Son of deceased)
42. A sum of Rs. 1,03,10,300/ alongwith the interest thereon, is awarded to petitioner, being son of deceased.
43. Out of the said amount, Rs. 20,00,000/ be deposited in the form of FDR in the name of petitioner in the following phased manner :
(a) A sum of Rs. 5,00,000/ for a period of 2 years.
(b) A sum of Rs. 5,00,000/ for a period of 4 years.
(c) A sum of Rs. 5,00,000/ for a period of 6 years.
(d) A sum of Rs. 5,00,000/ for a period of 8 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
44.In terms of the directions given by Hon'ble High Court in case titled " Rajesh Suit No. : 711/10 26/30 Pamela Rooks Vs. Raghu Nand Rai 27 Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.20009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
45. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimant.
46. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, Insurance Company is directed to deposit the awarded amount in favour of the petitioner with State Bank of India, Saket Courts Complex Branch, against account of petitioner.
within a period of 90 days from today, failing which respondent no. 5 Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
47. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner: Suit No. : 711/10 27/30 Pamela Rooks Vs. Raghu Nand Rai 28
(i) The interest on the fixed deposit be paid to the petitioner / claimant by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimant/petitioner after due verification and the Bank shall issue photo identity Card to claimant / petitioner to facilitate identity.
(iii) No cheque book be issued to claimant / petitioner without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimant / petitioner alongwith the photocopy of the FDR's .
(v) The original fixed deposit receipts shall be handed over to claimant / petitioner at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court.
(viii)On the request of claimant / petitioner, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimant / petitioner shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
Suit No. : 711/10 28/30
Pamela Rooks Vs. Raghu Nand Rai 29 DIRECTIONS FOR THE RESPONDENT NO. 5
48. The Respondents no. 5 is directed to file the compliance report of their having deposited the awarded amount with State Bank of India, Saket Court Branch in this tribunal within a period of 90 days from today.
49. The Respondent shall intimate to the claimant / petitioner about it having deposited the cheques in favor of the petitioner in terms of the award, at the address of the petitioner mentioned at the title of the award, so as to facilitate them to withdraw the same.
50. Copy of this award / judgment be given to the parties.
51. File be consigned to record room.
Announced in the open court
on 31st Day of May, 2012 (SANJIV JAIN)
Presiding Officer : MACT02
South District : Saket Courts
New Delhi : 31.05.2012
Suit No. : 711/10 29/30
Pamela Rooks Vs. Raghu Nand Rai
30
Pamela Rooks Vs. Raghu Nand Rai
Suit No. : 711/10
31.05.2012
Present : None.
Vide separate order of even date a compensation of Rs. 1,03,10,300/ (Rs. One Crore Three Lac Ten Thousand Three Hundred only) with interest @ 9% is passed from the date of filing the petition till the realization of the amount in favour of petitioner.
Copy of the award be given to the parties.
File be consigned to Record Room.
(SANJIV JAIN) Presiding Officer : MACT02 South District : Saket Courts New Delhi : 31.05.2012 Suit No. : 711/10 30/30