Delhi District Court
Ms. Srishti Rustagi vs Sh. Vijay Singh Gautam on 17 March, 2018
THE COURT OF SH. DEVENDER KUMAR, PO-MACT, SHAHDARA,
KARKARDOOMA COURTS, DELHI
MAC No. 115/16
Ms. Srishti Rustagi
D/o Sh. Hansraj Rustagi
R/o House No. 34,
Shalimar Park Extension, Delhi ....Petitioner
Versus
1. Sh. Vijay Singh Gautam
S/o Sh. Kishan Lal
R/o 10 B/ 96, Ambedkar Basti,
Mauj Pur, Delhi
2. ICICI Lombard General Insurance Company Ltd.
C/o ICICI Lombard House,
414, Veer Savarker Marg,
Near Siddhi Vinayak Temple,
Prabhadevi, Mumbai.
3. Sh. Vikram Lal
S/o Sh. Surinder,
R/o 310, PWT, Mani Majra,
Chandigarh
4. Sh. Rajinder Kumar
R/o 310, Pipliwala Town,
Mani Majra, Chandigarh
5. The Oriental Insurance Company Ltd.
Chandigarh DO-I,
SCO 99-100, Sector 17B,
Chandigarh. ...Respondents
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors.
MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors.
MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 1/61
MAC No. 500/16
1. Smt. Kamla Rani
W/o Sh. Raja Ram,
2. Raja Ram
S/o Sh. Mani Ram
Both R/o 4/2288, Gali No-4,
Shahdara, Delhi ....Petitioner
Versus
1. Sh. Nitish Gautam
S/o Sh. Kamal Gautam
R/o A31/152A, Gurudwara,
Gali No. 1, Near Darbar Hotel,
Mauj Pur, Delhi.
2. Sh. Vijay Singh Gautam
S/o Sh. Kishan Lal
R/o 10 B/ 96, Ambedkar Basti,
Mauj Pur, Delhi
3. ICICI Lombard General Insurance Co. Ltd.
C/o ICICI Bank Branch,
9A, Philips Building, A-Block,
Connaught Place, Delhi
....Respondents
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors.
MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors.
MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 2/61
MAC No. 347/16
1. Vasudeva Mishra
S/o Sh. Prahlad Mishra
2. Ms. Kusum Mishra
W/o Sh. Vasudeva Mishra
Both R/o H.No. 81, Gali No-4,
Shaheed Bhagat Singh Colony,
Karawal Nagar, Delhi ....Petitioner
Versus
1. Sh. Vijay Singh Gautam
S/o Sh. Kishan Lal
R/o 10 B/ 96, Ambedkar Basti,
Mauj Pur, Delhi
2. ICICI Lombard General Insurance Company Ltd.
C/o ICICI Bank Branch,
9A, Philips Building,
A-Block, Connaught Place,
Delhi
....Respondents
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors.
MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors.
MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 3/61
MAC No. 154/16
Ms. Urmila Aggarwal
W/o Lt. Sh. Chandra Prakash
R/o 2873/1, Gali No-01,
Bihari Colony,Shahdara, Delhi. ....Petitioner
Versus
1. Sh. Vijay Singh Gautam
S/o Sh. Kishan Lal
R/o 10B/96, Ambedkar Basti,
Mauj Pur, Delhi
2. ICICI Lombard General Insurance Co. Ltd.
C/o ICICI Bank Branch,
9A, Philips Building,
A-Block, Connaught Place, Delhi
....Respondents
Date of Institution of MAC No. 115/16 : 18.11.2013
Date of Institution of MAC No. 500/16 : 19.08.2013
Date of Institution of MACs No. 347/16 & 154/16: 01.08.2014
Date of Arguments : 09.02.2018
Date of Judgment : 17.03.2018
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors.
MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors.
MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 4/61
JUDGMENT:
1. Vide this judgment I shall dispose off four cases filed by the petitioners with the facts that on 19.07.2013, petitioner namely Srishti alongwith her friends and other victims namely Laxmi, Rahul, Mayank and Nitish planned a trip to Jurassic Park, Sonepat, Haryana and all the abovesaid persons gathered at the residence of deceased Laxmi at Maujpur and started their journey at about 12.00 Noon, by a car bearing No. DL-7CM -0135 make Xylo E-4, seven seater being driven by deceased Nitish Gautam. It is further stated that Nitish Gautam was driving the car in rash and negligent manner despite repeated warnings by the occupants and, at about 2.00 pm, they reached at GT Road, near Devi Lal Park, Sector-7, PS Murthal, Sonepat, Haryana, when the driver lost his control over the wheels and car struck against the divider of the road and jumped over to the other side of the road and struck against one Toyeta - Innova car bearing no. CH-01-AF-8897 coming from other side and was also being driven in very high speed and rash and negligent manner by its driver. It is further stated that the petitioner Srishti Rustagi lost her conscious and later on came to know that she was removed to PGI, Rohtak for her treatment and, thereafter, shifted to Max Super Specialty Hospital, Partparganj, Delhi. It is further stated that she sustained multiple fractures as well as other injuries during this accident and remained under treatment between the period on 19.7.2013 to 29.7.2013 and was also operated upon for multiple bone injuries. It is further stated that MLC of Srishti was prepared at MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 5/61 PGI, Rohtak for her injuries. She again hospitalized on 03.08.2013 and discharged on 04.08.2013. Thereafter, she again hospitalized between 27.8.2013 to 30.08.2013 and even is still under treatment and has been advised for psychotherapy on regular basis which is likely to continue for long time. It is further stated that the petitioner / injured has spent Rs. 7,19,963/- towards her medical treatment and Rs. 2 Lacs are likely to spend on future treatment. Petitioner Srishti has also spent Rs. 20,000/- towards her special diet, 25,000/- towards conveyance and Rs. 20,000/- are likely to spend on her conveyance in future as well. It is further stated that she remained confined to bed for about 3 months and one attendant was engaged by her to look her after and Rs. 41,550/- were spent on it. It is further stated that she was second year fashion designing decree student form South Delhi Polytechnic, New Delhi at the time of accident and lost her academic year on account of this accident and has also lost her bright future as well as earning capacity. Petitioner / injured Srishti has claimed a compensation of Rs. 30,26,513/- from the Respondents jointly or severally including the driver and insurance company of other car make Toyota Innova which was hit by the car of the injured after crossing the divider.
1.1. Besides the above said injured, the other occupant of the car with Srishti namely Rahul Kumar, who was aged about 20 years, has also died in this accident. Deceased was running a coaching centre and was earning Rs. 15,000/- pm. The postmortem was conducted on the MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 6/61 dead body of deceased in Govt. Hospital, Sonepat, Haryana. The parents of the deceased have also alleged the similar facts as alleged by Srishti Rustagi and have made a separate claim of Rs. 50 Lacs. Similarly, another occupant of the car no-DL-7CM 0135 and friend of Srishti namely Laxmi Mishra also died during this accident. She was student and was aged about 20 years and her parents have filed a separate claim of Rs. 30 Lacs against the respondents for her death.
1.2. Besides it, another occupant namely Mayank Aggarwal accompanied with Srishti Rustugi also sustained fatal injuries during this accident allegedly caused by the rash and negligent driving of driver Nitish Gautam who also died during this accident. It is alleged by the claimants that the deceased was self employed and was partner of M/s. SMA Agro Tech, Saket Colony, Garh Road, Hapur, UP and was earning Rs. 50,000 pm by his business. The parents of deceased have claimed a compensation of Rs. 70 Lacs along with interest from the owner as well as Insurer of the vehicle No. DL-7CM-0135.
1.3. All the above-said victims were bachelor / unmarried at the time of accident. FIR No. 207/13 u/s 279/337/304A IPC was registered with PS Murthal, Distt. Sonepat, Haryana against this incident.
2. Respondent No. 1 / Owner in all petitions namely Vijay Singh Gautam has filed his similar reply in all petitions with the plea that he was the owner of the vehicle bearing no. DL-7CM 0135 being driven by MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 7/61 Nitish Gautam on the day of accident and was boarded by all victims. He has stated that his vehicle was insured with ICICI Lombard General Insurance Co. Ltd. at the time of accident and even the deceased driver was holding a valid DL due to insurance company is liable to pay all the claims, if any. However, he has denied some of the facts but, by and large his reply is of no denial with the prayer that all the claims are liable to be dismissed.
3. Respondent No. 2 i.e. ICICI Lombard General Insurance Company Ltd. has filed a separate reply thereby stating that the driver of the vehicle involved in the accident namely Nitish Gautam was a necessary party but has not been impleaded to this case due to respondent is not liable to pay any compensation and all petitions are bad for non-joinder of necessary parties. It is further stated that the interest rate claimed by the all the petitioners is exorbitant and has claimed just to make profit by this accident and all the petitions are liable to be dismissed.
4. Respondent No. 3 and respondent no. 4 i.e. Vikram Lal and Rajender Kumar have filed their joint reply thereby stating that no accident took place by their vehicle bearing No. CH01-AF 8897 make Toyota Innova, but they have been falsely implicated in this case and petition of Srishti Rustagi is bad for mis-joinder / non joinder of necessary parties. It is further stated that the driver of vehicle occupied by the injured / victims was not following the traffic rules and was MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 8/61 driving in rash and negligent manner and hit against their vehicle by crossing the divider of the road due to both the respondents are not liable to pay any compensation. It is further stated that the vehicle of the Respondent No. 1 was insured with The Oriental Insurance Company Ltd. vide Policy No. 231100/31/2013/12406 valid w.e.f. 10.12.2012 to 09.12.2013 and Respondent No. 4 was having a valid DL issued by the Transport Authority, Chandigarh which was valid to drive the vehicle and Insurance Company is liable to pay entire compensation, if any, though it is stated that no compensation can be awarded against the answering Respondents. Respondents have shown their ignorance about the registration of FIR No. 207/13 against the accident and have alleged that they have been falsely implicated in this case and claim is liable to be dismissed. It is further stated that the claim raised by the petitioner is exorbitant with exorbitant medical bills of injured which is liable to be rejected being false and frivolous.
5. Respondent No. 5 i.e. The Oriental Insurance Company Ltd and insurer of the vehicle bearing No. CH-01AF 8897 has filed WS thereby stating that the vehicle insured with the company was not at fault in causing this accident and the accident was caused by the rash and negligent driving of the driver of the vehicle bearing no. DL-7CM 0135 which not only crossed the road by damaging the divider of the road but also struck against the vehicle bearing no. CH-01-AF-8897 coming in opposite side in its lane. It is stated that principle of res-ipsa-loqutor may be made applicable in this case to ascertain the fault of the errant MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 9/61 driver due to Insurance Company is not liable to pay any compensation. It is admitted that the vehicle bearing no. CH-01AF 8897 make Toyota Innova was insured with the Insurance Company in the name of owner Rajender Kumar, but it is denied that the Insurance Company is liable to pay any compensation. It is prayed that no claimant is entitled for such exorbitant claim and petition are liable to be dismissed.
6. From the pleading of the parties following issues are framed as under:
MAC No. 115/161. Whether petitioner suffered injuries in the accident occurred on 19.7.13 due to rash and negligent driving of drivers of vehicle No. DL-7CM 0135 (Xylo car) and CH-01-AF 8897(Toyota Innova)?
2. Whether the petitioner is entitled for any compensation, if so, as to what amount and from whom? OPP
3. Relief.MAC No. 500/16
1. Whether deceased Rahul Kumar suffered fatal injuries in the accident occurred on 19.07.13 due to rash and negligent driving of vehicle No. DL-7CM 0135 being driven by its driver? OPP MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors.
MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 10/61
2. Whether the petitioners are entitled for any compensation, if so, as to what amount and from whom? OPP
3. Relief.
MAC No. 347/161. Whether deceased driver Nitish Gautam was driving Vehicle No. DL- 7CM-0135 on 19.7.2013 at 2.30 pm in front of Devi Lal Park, Sector 7, Distt. Sonepat, GT Road, Haryana in a high speed and to rash and negligent driving manner, as a result of which deceased driver lost the (control) driver and vehicle crossed over to other side of road and rammed against vehicle No.CH-01AF 8897 and Laxmi Mishra, occupant of Car No. DL 7CM 0135 sustained fatal injuries? OPP
2. Whether the petitioner is entitled for any compensation, if so, as to what amount and from whom? OPP
3. Relief.
MAC No. 154/161. Whether deceased driver Nitish Gautam was driving vehicle no. DL-7CM 0135 on 19.7.2013 at 2.30 pm in front of Devi Lal Park, Sec 7, Distt. Sonepat, GT Road, Haryana in a high speed and to rash and negligent driving manner, as a result of which deceased driver lost the (control) driver and vehicle crossed over MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 11/61 to other side of road and rammed against vehicle No. CH-01- AF-8897 and Mayank Aggarwal occupant of Car no. DL-7-CM- 0135 sustained fatal injuries? OPP
2. Whether the petitioner is entitled for any compensation, if so, as to what amount and from whom? OPP
3. Relief.
7. Total four petitions were filed against this accident by the LRs of the victims, out of which two Petitions i.e. MAC 154/16 (Old No. 188/14) and 347/16 (Old No. 189/14) were clubbed together vide order dated 19.042016 and Petition No. 154/16 was treated as Main Petition. However, Petition No. 115/16 (Old MAC No. 243/13) and Petition No. 500/16 (Old MAC No. 145/13) have been contested independently, but are being decided together being arising out of same accident and filed with similar set of facts. Even it is also necessary to avoid the difference of legal opinion.
8. To prove Petition MAC No. 115/16, PW1, injured Srishti Rustagi has deposed that on 19.7.2013, she along with her friends namely Laxmi, Rahul, Mayank and Nitish planned a trip to Jurassic Park, Sonepat, Haryana and, at about 12:00 noon, all of them departed together from the residence of Laxmi Mishra at Maujpur, by a car bearing No. DL-7CM-0135 make Xylo, being driven by her friend / deceased Nitish Gautam. It is further deposed that at about 2.00 pm, they reached at GT Road, near Devi Lal Park, Sector -7, PS Murthal, MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 12/61 Sonepat, Haryana, but the driver Nitish Gautam was driving the car in rash and negligent manner despite repeated warnings and lost his control on the wheels and car struck against the divider of the road and jumped over to opposite side and struck against one another Toyota Innova Car bearing no. CH-01-AF-8897 coming from opposite side and was also being driven by the driver in very high speed and also in rash and negligent manner. It is further deposed that she suffered multiple grievous injuries and lost conscious and, later on, came to know that she was removed to PGI, Rohtak for her treatment. Thereafter, she was shifted to Max Super Specialty Hospital, Patparganj, Delhi. It is further deposed that she remained under treatment for long time and has spent Rs. 7,19,963/- on medical treatment besides other amount of Rs. 34,067.54. Not only this amount, Rs. 52,350/- was spent on attendant charges, Rs. 66,500/- on psychotherapy, Rs. 17,600/- on ambulance charges and an amount of Rs. 25,000/- was spent on conveyance. It is further deposed that she needs future treatment also and Rs. 20,000/- is also required to this effect for conveyance and Rs. 20,000/- on special diet besides Rs. 2 lacs for future medical treatment. It is further deposed that she was student of second year of fashion designing and has lost his two academic years by this accident and now has joined another Institute Arch Academy, Jaipur from the year 2014-2015 afresh and also has to spend amount on fees. It is further deposed that she is also unable to stand for long hours and to walk speedily and to work for long on account of these injuries. It is further deposed that her bright future has lost track. It is further MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 13/61 deposed that she was aged about 19 years at the time of accident and has suffered permanent disability besides suffering mental shock and trauma as well as pain and suffering. She has relied upon documents i.e. copy of Aadhar card as Ex.PW1/1, discharge summary dt. 29.713 as Ex.PW1/2, original bills and medical record as Ex.PW1/3, copy of fee receipt of new admission in Arch Academy, Jaipur as Ex.PW1/4, copy of FIR, MLC, LAMA summary, MLC of Max hospital and copy of letter dt. 19.813 issued by South Delhi Polytechnic for Women as Mark A to Mark E. 8.1. During cross examination, she has deposed that the car driver Nitish Gautam was driving the car in a very high speed and also rashly and negligently and kept on driving in similar manner despite their warning twice. It is admitted that there was a divider between the roads but she was not aware about the width of the divider. It is admitted that Xylo car by which she was travelling also got damaged during this accident, but she was not aware as to whether other car got damaged or not. It is admitted that four occupants of her car expired and she came to know about it later on at hospital. She was not aware about the fate of the occupants of other car make Toyota Innova. She was not aware as to who got lodged this FIR. It is further deposed that she is student of fashion designing degree, third year and is staying at Jaipur with her family but visits Delhi regularly. It is admitted that her father has expired during the pendency of this case due to she shifted to Jaipur. It is admitted that all the occupants of Xylo car were MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 14/61 schoolmates and were studying at the time of accident and none of them was working. It is admitted that the speed of her vehicle was above 70 KMPH, whereas normal speed on the road on which accident took place was 90 KMPH. It is admitted that nothing came in front of their vehicle being driven by Nitish Gautam, but she could not say as to whether the driver of Innova car was negligent or not, but that car might be in high speed due to hit against their car. It is admitted that all of them sustained injuries during this accident. It is further admitted that some medical bills are not in her name but are in the name of her parents. She did not make statement to police about this accident. It is denied that she was not suggested psychotherapy by the doctors or has not engaged any attendant. She has no document to prove that the doctor has advised her not to stand for long hours.
8.2. PW2 Dr. Amit Kumar Srivastava has proved that the injured Srishti was admitted to Max Hospital on 19.07.2013 and remained under treatment there and discharged vide discharge summary Ex.PW1/2. She was again hospitalized on 27.8.2013 and discharged on 30.8.2013 vide discharge summary Ex.PW2/1. She is still under treatment. It is further deposed that injured was hospitalized with critical injuries sustained during the road accident and diagnosed with fractures of both pubic with diastase, disruption of both joints, fracture of left femur bone, fracture medial femur condoyle and fracture of both bones of left leg with multiple ribs injury. It is further deposed that patient will have to confine to bed for at least three months and MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 15/61 thereafter, three months time is required to regain normal activities. She will have to get removal of her implants after a period of two years on healing up of her fractures and cost of such removal of implants shall be about Rs. 2 - 2.25 Lacs in his hospital. It is admitted that the patient was discharged from the hospital on 29.7.2013 in stable condition.
8.3. PW3 Sh. Gaurav Tripathi has proved the medical record of the patient Srishti Rustugi as Ex.PW3/1, but he was not aware about the payment of treatment bills and only produced the medical record.
8.4. PW4 Dr. Binod Kalita has proved the disability certificate of the injured Srishti Rustagi which is Ex.PW1/A, as per which, she suffered 32% permanent disability in relation to her left lower limbs. Disability sustained by the injured is permanent in nature and is not progressive, but he was not aware about the functional disability with regard to whole body of the patient. It is admitted that the patient has not suffered any other disability with regard to any other part of body.
9. Petition MAC No. 500/16: To prove this petition, PW1 Raja Ram Singh has deposed that deceased Rahul was his son and died on 19.7.2013 during the accident caused by the driver of the vehicle bearing no. DL3CM 0135. It is further deposed that deceased died thereby leaving behind his mother aged about 43 years besides him. It is further deposed that the deceased was unmarried at the time of his MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 16/61 death and was aged about 20 years. It is further deposed that the deceased was running a coaching centre and was earning Rs. 15,000/- pm and was also contributing Rs. 12,000/- towards house hold expenses. It is further deposed that the legal heirs of deceased have suffered not only mental pain and agony but also economic loss on account of sudden demise of the deceased Rahul. It is further deposed that FIR has been registered against the driver of the vehicle bearing No. DL-3CM 0135 with PS Murthal, Sonepat, Haryana. He has relied upon documents i.e. educational documents of the deceased Rahul Kumar as Ex.PW1/1, Voter ID of mother of deceased Smt. Kamla Rani as Ex.PW1/2, Voter ID of father Raja Ram Singh as Ex.PW1/3, Copy of ration card as Ex.PW1/5, attested copy of PM report of deceased as Ex.PW1/6, Copy of voter ID of deceased as Mark A and FIR as Mark B. 9.1. During cross examination, he has admitted that he is not an eye witness to this accident. It is admitted that he has not filed any documentary proof about the running of coaching centre by the deceased or his earning of Rs. 15,000/- pm. It is admitted that he is employed with Delhi State Civil Supply Corporation Ltd. and deceased was 12th class passed and was running a coaching centre in the name of Rahul Kumar Coaching, but he has no document to this effect. It is further deposed that 10-12 students were attending the coaching centre in each session but was not aware about the name of those students of 10th and 12th standard. It is further deposed that the MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 17/61 deceased used to teach math and English. It is admitted that the deceased was not maintaining any bank account and was also not income tax assessee.
9.2. PW2 Srishti Rustagi is an eye witness as well as victim of this accident who has also filed a separate claim petition and has corroborated her testimony as deposed in titled Sristhi Rustagi Vs. Vijay Gautam & Ors. However, she has admitted that all her friends were studying at the time of accident and none of them was working or earning at any point of time.
10. Petitions in MAC No. 154/16 and MAC No. 347/16 clubbed together: To prove both petitions, PW1 Smt. Urmila Aggarwal has corroborated the facts deposed by eye witness Srishti Rustagi about the mode and manner of accident as well as involvement of both vehicles and lodging of FIR against the driver for rash and negligent driving of the vehicles. It is further deposed that the deceased Mayank Aggarwal was her son and was partner in M/s SMA Agro Tech carrying its office at Saket colony, Garh Road, Hapur and was earning Rs. 50,000/- pm by sales, service and spare parts of International Tractors Ltd. It is further deposed that the deceased was aged about 21 years and was unmarried at the time of accident and has left behind her as LR's. It is further deposed that she has suffered mental shock and trauma by the loss of her son, as her husband has already died and there is other legal heir of deceased except her. It is further deposed MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 18/61 that she has spent Rs. 25,000/- on the transportation of dead body and last rites of the deceased. She has relied upon the photocopy of her Aadhar card as Ex.PW1/1, photocopy of Aadhar card and Pan of deceased as Ex.PW1/2, death certificate of deceased as Ex.PW1/3, photocopies of ITR for the year 2013-14 as Mark A and criminal record of the case as Mark B. 10.1. During cross examination, she has admitted that she is not an eye witness to this accident. It is further deposed that deceased was partner with Shivam Aggarwal who is her relative, but she was not aware as to whether partnership firm has dissolved after the death of her son or not or that her family has received any share amount of the partnership firm. It is further deposed that the deceased was 12th passed and his date of birth was 3.8.1992. It is admitted that she is not aware as to whether any partnership deed was executed or any ITR was filed by the firm after the death of her son. It is further admitted that her deceased son was not having any professional qualification, but she was not aware about filing of ITR by the deceased or about maintaining of any separate bank account by him. It is denied that she was dependent upon the deceased, but it is admitted that she has two daughters and one son namely Anshul Agarwal other than the deceased and is aged about 30 years and is residing with her and also taking care of her for all her expenses.
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 19/61 10.2. PW2 Vasudev Mishra has been examined in other clubbed case and has corroborated the testimony of PW1 and has relied upon the documents i.e. photocopies of Election ID as Ex.PW2/1, photocopies of ID of Kusum Mishra as Ex.PW2/2, photocopies of ID and Educational qualification documents of deceased as Ex.PW2/3 & Ex.PW2/4.
10.2.1. During cross examination, he has admitted that he is not an eye witness to the accident. It is further admitted that his daughter was an average student in study and was doing course of interior designing at the time of accident. It is further admitted that his daughter was totally dependent upon him for all her needs like educational or financial. It admitted that he is income tax assessee and has been paying income tax of Rs. 20,000 - 25,000/- per year.
11. Respondents have not led any evidence and RE closed.
12. I have heard the arguments and perused the record. I am taking up issue No. 1 in all the petitions together as this issue in all petitions is common as well as similar and onus is fixed upon all the petitioners to prove this issue. My Issue-wise findings are as under:
ISSUE NO. 1 in All petitions - The onus to prove this issue was fixed upon the petitioners. To discharge this onus, petitioners have examined themselves as well as eye witness / injured Srishti Rustagi.
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors. MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 20/61 They have repeated their allegations leveled in their petitions. The onus to prove this rash and negligent driving either by the vehicle No. DL-7CM-0135 or CH-01-AF 8897 was on the petitioners who have claimed the compensation. They are required to prove rash and negligence of driver to claim this compensation under section 166 of M.V. Act and legal proposition regarding it is well established. The law to this effect is relevant to be considered. It is held in Oriental Insurance Co. Ltd. v. Premlata Shukla & Ors. III (2007) ACC 54 (SC) that the insurer, however, would be liable to reimburse the insured to the extent of the damages payable by the owner to the claimants subject of course to the limit of its liability as laid down in the Act or the contract of insurance. Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under section 166 of the Act. A similar proposition has held in case titled DTC and Another v. Rajeshwari Sankar And Ors MAC. A. No-442/2005 dated 25/5/13 that rash and negligence is supposed to be proved to claim the compensation u/s 166 of M.V. Act. Even the Hon'ble High of Delhi in MAC App.
No.200/2012 case titled United India Insurance Co. Ltd. V. Smt. Rinki @ Rinku & Ors dated 23/07/2012 has held that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988 (the Act). Even the similar proposition has been repeated in Oriental Insurance Company Limited v. Meena Variyal and Ors., (2007) 5 SCC 428, Minu B. Mehta and Anr. v. Balkrishna MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 21/61 Ramchandra Nayan and Anr., 1977 (2) SCC 441 and Surender Kumar Arora and Anr. v. Manoj Bisla and Ors., (2012) 4 SCC 552.
13. The mode and manner of proving the rash and negligent driving of the offending vehicle has also been considered in various other judgments also and has held that the onus to prove the rash and negligent driving is not to be discharged beyond the doubt or in the similar manner as a fact is to be proved in a civil case. Rather it has to be proved on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition based upon negligence. The observation of the Hon'ble High Court made in New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 is relevant that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, the Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence.
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 22/61
14. Further, the approach of the tribunal has also been defined by the Hon'ble Supreme Court of India in N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter. As such, the case of the injured has to be decided in view of the above said proposition in this case.
15. PW1 Srishti Rustagi is the injured to her claim petition and is also an eye witness to other petitions and has duly proved that on 19.07.2013, she alongwith her friends namely Laxmi Mishra, Nitish Gautam, Rahul Kumar and Mayank planned a trip to Jurassic Park and left Delhi to Sonepat by a vehicle bearing no. DL-7CM 0135, being driven by deceased Nitish Gautam, but he was driving the car in rash and negligent manner despite repeated warning by the occupants and ultimately vehicle met with an accident. It is further proved that Nitish Gautam lost his control on car and car crossed the road after breaking of the divider at the spot near G.T. Road, near Devi Lal Park, Sector 7, PS: Murthal and struck against the vehicle bearing no. CH-01-AF-8897 and resulted into sustaining grievous injuries by her and fatal injuries by other occupants namely Laxmi Mishra, Nitish Gautam, Rahul Kumar and Mayank. It is further proved that she was removed to PGI Hospital, MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 23/61 Rohtak where her MLC was prepared, but other occupants died and their postmortems were conducted. It is further deposed that she was provided initial treatment in Sonepat but, thereafter, she was shifted to Max Super Specifiability Hospital, Parparganj, Delhi where she remained under treatment for long time. The medical record of PW has been duly corroborated by PW2 Dr. Amit Kumar Srivastava who has deposed that she remained under treatment between the period from 19.7.2013 to 29.7.2013 and was also operated upon for her bone injuries. It is further corroborated that she again hospitalized on 03.8.13 and discharged on 4.8.2013 and, thereafter, she again hospitalized between the period from 27.08.13 to 30.08.13. It is further proved that injured Srishti suffered multiple fracture injuries. MLC and medical documents of injured have also proved this fact that injuries suffered by injured were grievous. FIR No. 207/13 u/s 279/338/304A IPC was registered with PS Murthal, Sonepat against the driver of the vehicle of injured namely Nitish Gautam and has proved that this accident took place due to rash and negligent driving of the driver of vehicle no DL-7CM 0135. Site plan prepared by the police has also corroborated this fact. One Nitika lodged this FIR and no separate FIR has been lodged either by the injured Srishti or any other family members of the other deceased, but it is not fatal to this case as the purpose of FIR is just to make a first information pertaining to an incident or a cognizable offence irrespective of the fact as to whether it is made by victim or someone else, as criminal law can be brought in motion by anyone on behalf of victim. In this case also, the driver, MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 24/61 owner and Insurance company of vehicle no. CH-01-AF 8897 are already party to this case whereas FIR got lodged by the relative of one of the victims of vehicle No. CH-01AF 8897 and is sufficient to prove that the incident took place by the rash and negligent driving of the vehicle occupied by injured/ victim herein. Rather it has duly corroborated the story of PW1. One final report was also filed before the court of Ld. CJM against the deceased driver of vehicle occupied by victims in this case and this fact has itself proved that this accident was caused by rash and negligent driving of vehicle occupied by the victims. Though the other documents like mechanical inspection of both vehicles or seizure memos are not on record, yet the extent of damage sustained by both vehicles during the accident has proved that it was a case of rash and negligent driving of the vehicles.
16. Ld. Counsel for Insurance company has argued that this accident took place due to the fault of the driver of the vehicle occupied by the victims and Insurance company insured this vehicle bearing No. DL-7CM 0135 is liable to pay the entire compensation, whereas this submission is strongly opposed by the Counsel for The Oriental Insurance Company Ltd. Since it is a case of joint tortfeasor, it has to be determined as to which vehicle was responsible in causing this accident or both vehicles were in fault or rash and negligent during this accident. If both the vehicles were responsible in causing this accident, then Insurance Company of both vehicles are bound to bear the share of compensation. Even otherwise, one issue to this effect has also MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 25/61 been framed in Petition MAC No. 115/16 filed by the injured Srishti. PW1 Srishti is an eye witness to this accident and has admitted during her cross examination that Nitish Gautam was driving his vehicle in rash and negligent manner and was also in excessive speed, whereas the other vehicle bearing No. CH-01-AF-8897 was in the speed of about 70 KMPH which is permissible speed on highway. Even she has admitted that the normal speed on the road where accident took place was 90 KMPH. She has further admitted that nothing had come in front of the vehicle being driven by Nitish Gautam to have occasion to apply sudden breaks of the vehicle. This fact itself suggests that vehicle boarded by the victims was in unmanageable speed and the extent of damage caused to this vehicle and, the manner of hitting another vehicle in opposite direction after crossing the road after breaking divider has proved that the driver of the vehicle bearing No. CH -01- AF-8897 was not at fault. The reason given for involvement of Innova car in the accident by eye witness as well as injured Srishti Rustagi is just that vehicle might be in excessive speed which is not sustainable as she has herself admitted that driver was driving in permissible speed. In fact, it was not supposed to be anticipated by a driver of a vehicle going with normal as well as permissible speed on highway that a vehicle would come in front of him suddenly after crossing and breaking the divider and he would have to apply breaks on hitting that vehicle. In fact, such expectation is unwarranted and beyond the human imagination. In fact, principle of res-ipsa loquitur can be easily applied herein to determine the fault of the driver of the vehicle MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 26/61 boarded by the victims and it can be safely said that there was no fault of the driver of vehicle bearing no. CH 01AF 8897 in causing this accident. This accident caused by the rash and negligent driving of vehicle bearing No. DL-7CM 0135 occupied by the injured as well as other victims.
17. Ld. Counsel for Insurance Company has further argued that the driver of the vehicle namely Nitish Gautam has not been impleaded to all claims and only owner has been impleaded, whereas he was a necessary party to these claims and ought to be impleded through LR's and all the claims are liable to be dismissed. However, this argument has no substance. All the petitions are arising out of the same claim and deceased driver is just a performa party who has been impleaded in Petition MAC No. 500/16 but not impleaded in other petitions; however it has no much bearing on the maintainability of these claim petitions. The owner of the offending vehicle is already on record in all the matters and none of the parties have disputed on record that Nitiesh Gautam was not driving the offending vehicle owned by Vijay Singh Gautam. The legal proposition has also It is held in Oriental Insurance Company Ltd. Vs. Arvind Kumar, 2012 SCC Online Delhi 4080 that claim cannot be dismissed on the ground of non-joining of driver as a necessary party.
18. As such, it stands proved that the deceased Nitish Gautam caused this accident by his rash and negligent driving of the vehicle MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 27/61 owned by Respondent Vijay Singh Gautam and resulted into sustaining grievous and fatal injuries by the occupants of the vehicle. Vijay Singh Gautam is the owner of the vehicle and is vicariously liable for this tortuous act of the deceased driver. Insurance policy was effective between the period from 10.12.2012 to 9.12.2013 and accident took place on 19/07/13 which was well within the validity period of the Insurance Policy and insurance company is responsible to indemnify the policy holder for all claims, subject to proving any violation of the terms and conditions of the insurance policy. As such, issue no. 1 in all petitions is decided in favour of the petitioners and against the respondents.
19. Since all the petitioners have proved the issue No. 1 in all petitions, due to petitioners in all petitions are entitled for the compensation. My findings on issue No. 2 in each petition as under:
MAC No. 115/16ISSUE NO. 2 in MAC No. 115/16 - The onus to prove this issue was also fixed upon the petitioner/ injured Srishti Rustagi. Since the petitioner has proved that this accident took place due to the rash and negligent driving of the driver of her vehicle being driven by Nitish Gautam due to she is entitled for compensation for her injuries.
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors. MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 28/61
20. The scope of the compensation in injury cases has been discussed by the Hon'ble Supreme Court in case titled Mr. R.D. Hattangadi vs M/S Pest Control (India) Pvt. Ltd., 1995 AIR 755 in the following words as under:
Broadly speaking while fixing an 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 is 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 upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain 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 i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
21. Further, in Raj Kumar v. Ajay Kumar (2011) 1 SCC (Cri) 1161, has laid down the following criteria to determine the compensation in injury cases as under:
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 29/61
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earning on account of permanent disability.
(iii) Future medical Expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and /or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads
(ii) (b), (iii), (v) and (vi) relating to loss of future earning on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)
(a) do not pose much difficulty as they involved reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses-Item (ii) - depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages-Items (iv), (v) and (vi)
- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/ deprivation/ disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 30/61 earnings on account of permanent disability- Item (ii) (a).
In view of the above said law, the damages / compensation of the petitioner has to be decided under the following heads as under:
22. Reimbursement of medical expenses: Petitioner has proved medical bills Ex.PW1/3 (colly) and some other medical bills for Rs 7,54,030/- and there is no reimbursement to these medical bills, due to petitioner / injured Srishti Rustagi is entitled for reimbursement of these medical bills of Rs. 7,54,030/-. However, certain nursing bills of Rs. 52,350/- has also proved on record, but these bills are not reliable in view of the difference of amount in some of the bills and even not proved by summoning of the relevant witness. Besides it, injured has also claimed bills of physiotherapy for Rs. 66,500/-, but again bill of Rs.
10,000/- out of these bills is hand written and the issuing authority / person has not been examined, due to this bill could not be proved. As such, petitioner is entitled for remaining of Rs. 56,500/- under the head of physiotherapy. Similarly, petitioner is entitled for conveyance charges of Ambulance and others in view of her bills of Rs. 17,600/-.
23. Pain and Suffering: PW1 has proved that she sustained grievous injuries and also went through an operation consequent upon this accident. She sustained 32% permanent disability to her lower limbs and remained under treatment for long time. It is not disputed that a person who sustained such injuries and went through such medical process is bound to suffer pain and suffering due to injured is MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 31/61 entitled for compensation under this head.
24. Conveyance & Special diet: Petitioner has filed bills of ambulance- conveyance to prove that she spent amount under these heads for which she is entitled for reimbursement, subject to proving the same. She has proved conveyance bills of ambulance and others charges for Rs. 17,600/- for which she is entitled. However, she has not filed any bill of special diet, but she sustained leg injuries and remained hospitalized for a long time and also must have roamed around to get treatment and expenses on conveyance were bound to happen. Even hospitalization of a person under such medical condition is bound to require special diet for fast recovery due to she is entitled for compensation under the heads of conveyance and special diet.
25. Attendant charges: Petitioner has proved that she availed the services of attendant to assist her during her bed ridden period after this accident, but such bills are not reliable and have not been considered by this court. However, injured Srishti Rustagi sustained grievous and multiple fracture injuries including permanent disability. She was also operated upon for external fixation and must be assisted by some attendant or family members due to she is entitled for compensation under this head for 6 months @ Rs. 7,000/- pm.
26. Lose of Income during treatment period: Petitioner has proved that she was treated for the period between 19.7.2013 to 30.8.2013 MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 32/61 vide discharge summary Ex.PW2/1 and Ex.PW2/2 and is still under treatment. Admittedly, she was student and was major, but there was no loss of income as she was not earning anything; however, she remained confine to bed for many months and PW2 examined by her has proved that her bed confinement was for about 6 months. As such, she is entitled for loss of income during her treatment period for 6 months. In the absence of any specific earnings, she is entitled for loss of earning @ minimum wages prevalent on 19.7.2013 in Delhi which was Rs. 9386/- pm for matriculate worker. As such, she is entitled for such loss of earning.
27. Lose of disability: Petitioner Srishti Rustagi is entitled for compensation under this head as she has suffered 32% permanent disability in relation to her lower limbs. Ld. Counsel for the respondents have argued that this disability of injured cannot be considered for whole body in terms of same percentage as per disability certificate and she is not entitled for compensation to same extent of disability. However, the purpose of permanent disability certificate is to determine the actual as well as functional disability suffered by the injured during the accident. It is not disputed that the functional disability is to be determined as per Schedule I of the Workmen's Compensation Act, 1923 in terms of Section 143 of M.V. Act. It has held in Oriental Insurance Co. Ltd. V. Mohd. Nasir (2009) 6 SCC 280 that, both the statutes provide for the mode and manner in which the percentage of loss of earning capacity is required to be calculated. They provide the MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 33/61 amount of compensation in cases of this nature would be directly relatable to the percentage of physical disability suffered by the injured vis-à-vis the injuries are specified in the First Schedule of the 1923 Act. Indisputably where injuries are specified in the First Schedule, the mode and manner provided for the purpose of calculating the amount of compensation would be applicable. The 1923 Act would also be applicable to the claims applications arising out of the use of motor vehicles in terms of the provisions of the 1988 Act for the purpose of determination of the amount of compensation where the victim of the accident suffers from disability in the cases coming within the purview of thereof. The note appended to the Second Schedule of the 1988 Act raises a legal fiction, stating that "injuries deemed to result in permanent total disablement / permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under the Workmen's compensation Act, 1923".
28. In fact, permanent disability, therefore, for certain purposes have been co-related with the functional disability. Disablement and loss of earning capacity are two different aspects and not substitute to each other; however, functional disability, thus, has a direct relationship with the loss of limb. As per disability certificate, it is 32%, but it is not covered under Schedule I of the Workman's Compensation Act, 1923 and functional disability may be definitely less than it. But, it also cannot be disputed that the efficiency of the injured has definitely lessen by this injury. In view of the facts, I determine the functional MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 34/61 disability of the injured @ 25%. The age of injured Shristi as per her Aadhar Card Ex.PW1/1 was 19 years on the date of accident. Future damages are also to be determined as per 25% permanent disability.
29. Further, the multiplier of the damages has to be determined as per Sarla Verma v. DTC, (2009) 6 SCC 121. However, the determination of the age of the petitioner is necessary to apply this multiplier. As per voter ID and Aadhar Card, the age of injured Srishti is about 19 years and is taken as 19 years. The multiplier for age group between 15 to 25 years is 18 and the loss of income of the petitioner has to be determined as per this age. As such, the monthly income of the injured is Rs. 9386/- pm for matriculate and after multiplying it by 12, it comes to Rs.1,12,632 /- (Rs. 9386 x 12 = 1,12,632/-). The 25% of Rs. 1,12,632 /- would be Rs. 28158/-. An additional 40% income i.e. Rs 11,263/- has to be added towards future earning in view of ORIENTAL INSURANCE CO. LTD. versus RAHUL GUPTA @ MANOJ KUMAR & ORS MAC.APP.542/2013 and SLP (C) 25590/2014, National Insurance Company Ltd. Vs. Pranay Sethi and Ors. This loss of income by permanent disability and future damages have to be multiplied by multiplier 18. In fact, the total loss would be Rs. 28,158 + 11,263 = Rs. 39,421 x 18 = Rs. 7,09,578/-.
30. Damages for convenience, hardship, discomfort, frustration and mental stress in life: Petitioner has proved that she was confined to bed and has suffered permanent disfigurement. Injured has suffered loss of amenities and enjoyment in life on account of multiple fractures MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 35/61 and inconvenience to her was bound to happen by these injuries. The disability certificate of the injured has proved the extent of discomfort and hardship suffered by 32% permanent disability. The extent of mental stress may be presumed easily to a person who suffered such disability. As such, injured is entitled for the mental shock and stress and the other above said heads.
31. Compensation for future medical and other expenses: PW2 has proved that injured Srishti will require the removal of implants after a period of 2 years and only after healing up the fracture. The removal of implants from the patient may cost a sum of Rs. 2-2.5 Lac in Max Hospital. In such circumstances, the injured is definitely entitled for some compensation under this head for her future medical expenses. As such, she is entitled for compensation of Rs. 2 Lac under this head.
32. Loss of Matrimonial prospects: Injured is unmarried girl and was merely aged about 19 years at the time of accident. After suffering the permanent disfigurement by the injured, her marriage prospects are bound to suffer by this accident due to she is entitled for compensation under this head.
As such, petitioner Srishti Rustagi is entitled for the compensation as under:
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors. MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 36/61
1. Reimbursement of medical expenses: Rs. 7,54,030/-
2. Pain and Suffering: Rs. 1,00,000/-
3. Attendant charges for 6 months: Rs. 7000 x 6 = 42,000/-
4. Lose of Income during treatment period: (6 Rs. 9386 x 6 months) = 56,316/-
5. Loss of earning capacity including future due Rs. 7,09,578/-
to this disability
6. Conveyance & special diet: Rs.17,600 + 50000/-
= 67,600/-
7. Compensation for mental and physical shock : Rs. 75,000/-
8. Loss of amenities in life: Rs. 50,000
9. Loss of matrimonial prospects: Rs.1,00,000/-
10. For future expenses : Rs. 2,00,000/-
11. Damages for convenience, hardship, Rs. 50,000/-
frustration and permanent disfigurement.
Total = Rs.22,04,524/-
(rounded off Rs.
22,05,000/-)
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors.
MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors.
MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 37/61
AWARD
This petition is allowed. Respondent i.e. ICICI Lombard General Insurance Company Ltd. is directed to pay a compensation of Rs. 22,05,000/- with interest @ 9% p.a. from the date of filing of the petition till realization to the petitioner and to deposit the award amount within one month from the date of this award. Copy of Form V duly filled shall be treated as part of this award. Award amount be released to the injured / claimant after deposit by the above said Respondent / Insurance Company.
33. Keeping in view of the facts and circumstances, this petition is allowed. Petitioner is entitled for compensation of Rs. 22,05,000/- from the Respondent ICICI Lombard General Insurance Company with interest @ 9% p.a. from the date of filing of the petition till its realization. However, damages for future medical expenses shall not carry any interest and shall be released only after medical prescription of the doctor regarding removal of implants. The interim compensation, if any, shall be adjusted against this award amount along with the waiver of interest, if any as directed by the court during the pendency of this case. Respondent i.e. ICICI Lombard General Insurance Company is directed to give notice regarding deposit of the said amount to the petitioner and his counsel. As such, petitioner has also successfully discharged the onus to prove this issue No. 2 and is entitled for the claim amount as above.
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 38/61
34. Disbursal of the Award amount: Now the disbursement of award amount has to be considered. The procedure of disbursement of the award amount has been provided in Clause-29 of Modified Claims Tribunal Agreed Procedure formulated by the Hon'ble High Court of Delhi in Rajesh Tyagi v. Jaibir Singh, I (2005) ACC 838 (Del.) and Tazuddin Ansari & Ors. v. Satish Kumar & Ors, 2016 SCC OnLine Del 5380 and the disbursement of the award amount in this case has to be considered.
34.1. Petitioner / injured Srishti Rustagi has made her statement that she has been spending Rs. 15,000/- pm on her expenses but is in need of money to repay her loans and also to start her business of fashion designing. In view of her needs, she shall be entitled for an amount of Rs. 3,05,000/- out of Rs. 20,05,000/- with corresponding interest instantly to be credited in her saving bank account nearby to her residence. Remaining amount of Rs. 17,00,000/- shall be fixed into automatically renewable FDRs of Rs.75,000/- and Rs. 1,00,000/- respectively w.e.f. May, 2017 onwards in the following manner as under:
Sr. No. Duration of FDR Petitioner
1. 6 Months Rs.1,00000/-
2. 1 Year Rs.1,00,000/-
3. 1 ½ Yrs. Rs.1,00,000/-
4. 2 Yrs. Rs.1,00,000/-
5. 2 ½ Yrs Rs. 75,000/-
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors.
MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors.
MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 39/61
6. 3 Yrs Rs. 75,000/-
7. 3 ½ Yrs Rs. 75,000/-
8. 4 Yrs Rs. 75,000/-
9. 4½ Yrs Rs. 75,000/-
10. 5 Yrs Rs. 75,000/-
11. 5½ Yrs Rs. 75,000/-
12. 6 Yrs Rs. 75,000/-
13. 6½ Yrs Rs. 75,000/-
14. 7 Yrs Rs. 75,000/-
15. 7 ½ Yrs Rs. 75,000/-
16. 8 Yrs Rs. 75,000/-
17. 8½ Yrs Rs. 100000/-
18. 9Yrs Rs. 100000/-
19. 9½ Yrs Rs. 100000/-
20. 10 Yrs Rs. 100000/-
Total= Rs. 17,00,000/-
The other conditions with regard to the FDRs shall be set out along with the disbursement of the compensation of the other petitioners in connected matters after adjudication of those petitions.
MAC No- 500/16
35. ISSUE No. 2 in MAC No. 500/16 qua the death of deceased Rahul Kumar- Issue No. 1 has been decided in favor of the petitioners that this accident caused by the rash and negligent driving of the vehicle occupied by the deceased Rahul Kumar and now it is to be decided as to what compensation is to be paid and by whom. Admittedly, the offending vehicle was insured with ICICI Lombard MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 40/61 Insurance Company Ltd. and there is no contest on the part of Respondents qua statutory defense except on the ground that the driver, owner and Insurance Company of the vehicle bearing No. CH-01AF-8897 have not been impleaded to all the cases barring one case titled Srishti Rustagi v. Vijay Singh Gautam & Ors, but I have already given my observation that this accident took place by the fault of the driver of the vehicle occupied by the deceased due to impleadment of driver, owner and Insurance Company of the other vehicle is of no use. The qualification of the deceased was 12 th class as proved by document Ex.PW1/1. PW2 Srishti has also admitted during her cross examination that none of victims was working or earning at the time of accident due to deceased is entitled for loss of estate at the rate of minimum wages of matriculate worker which was @ Rs. 9386/- pm.
36. To determine the compensation, the petitioners are required to prove the age and income of the deceased as well as number of dependents. The age of deceased is necessary to apply the multiplier. However, deceased was bachelor at the time of accident and in case of death of a bachelor, the age of the claimant has to be considered. The mother is considered dependent in a case of bachelor as held in Bharti Axa General Insurance Co. Ltd. and Ors. v. Poonam And Ors, MAC App. No. 79/2014 NS 413/15. The age of the deceased or claimant which is higher is to be considered to determine compensation as held in New India Assurance Company Ltd. V. MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 41/61 Shanti Pathak (Smt.), (2007) 10 SCC 1 and National Insurance Co. Ltd. V. Shyam Singh (2011) 7 SCC 65. The mother of deceased was aged about 39 years on 1.1.2009 as per her Voter ID Ex. PW1/2. Accident took place on 19.7.2013 and the age of claimant comes to 43 years at the time of accident. As such, age of the claimant is taken as 43 years to ascertain the multiplier to calculate loss of estate as only loss of estate is to be given in case of bachelor.
37. After ascertaining the age of the claimant, an appropriate multiplier has to be determined. The judgment of case titled Sarla Verma v. DTC, (2009) 6 SCC 121 is relevant to consider this multiplayer. Para 21 of the judgment has laid down the multiplier as per age as under:
MULTIPLIER AGE GROUP OF DECEASED
M-18 Age groups between 15 to 20 & 21 to 25 years)
M-17 Age groups between 26 to 30 years,
M-16 Age groups between 31 to 35 years,
M-15 Age groups between 36 to 40 years,
M-14 Age groups between 41 to 45 years,
M-13 Age groups between 46 to 50 years,
M-11 Age groups between 51 to 55 years,
M-9 Age groups between 56 to 60 years,
M-7 Age groups between M-7 for 61 to 65 years
M-5 Age groups between M-5 for 66 to 70 years.
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors.
MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors.
MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 42/61
In view of the above said judgment, a multiplier of 14 has to be applied against 43 years of age of the claimant to determine this compensation.
38. After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards her/ his personal expenses. The Hon'ble Supreme Court of India in case titled Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in Para 30, has laid down the necessary deductions towards personal living and expenses of the deceased as under:
Number of Deductions out of earning of the deceased. dependents ½ Half Where the deceased is bachelor and claimants are parents or dependent is 1 Where the number of dependent family members is 2 to 3 1/3rd 1/4th Where the number of dependent family members is 4 to 6, Where the number of dependent family members exceeds 1/5th 6 (six).
In view of the above said judgment, the Petitioner No. 1 is the mother of the deceased and Petitioners No. 2 is father of deceased. In fact, mother of the deceased is to be considered dependent upon the son but father is not to be considered as dependent. As such, 50% earning MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors. MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 43/61 of the deceased has to be deducted towards personal expenses out of the yearly earnings of deceased.
39. Besides it, the future income of the deceased is also to be considered in view of the latest judgment titled National Insurance Company Limited vs. Praney Sethi & Ors, SLP (Civil) No. 25590 of 2014 decided on 31.10.2017 as under:-
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
In fact, in view of the above said judgment, the compensation of the petitioners is to be adjudicated on account of Funeral Charges and Future Damages @ 25% of his earnings.
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 44/61
40. I have already observed that the deceased was earning as per minimum wages of Rs. 9386/- pm being matriculate and an amount of Rs. 4693/- pm has to be deducted out of monthly income towards personal expenses. Rs.4693/- has to be multiplied by 12 which comes to Rs. 56,316/- p.a. Thereafter, an annual income has to be multiplied by multiplier of 14 as per Sarla Verma v. DTC (supra). Rs. 56,316 x 14 = Rs. 7,88,424/-. Thereafter, 25% income towards future income of the deceased has to be added in terms of National Insurance Co. v. Pranay Shetty (Supra) i.e. 1,97,106/-. As such, total loss of estate of comes to Rs. 788424 + 197106 = 9,85,530/-. Besides the above said damages / compensation, other compensation under the conventional heads i.e. Funeral expenses of Rs. 15,000/- has also to be awarded in terms of Pranay Sethi judgment.
41. As such, petitioners Kamla Rani & Ors. are entitled for the compensation as under:
1. Loss of Estate: Rs. 9,85,530/-
2. Funeral Charges Rs. 15,000/-
Total = Rs. 10,00,530/-
(Rounded off Rs.
10,01,000/-)
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors.
MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors.
MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 45/61
AWARD
This petition is allowed. Respondent i.e. ICICI Lombard General Insurance Company Ltd. is directed to pay a compensation of Rs.
10,01,000/- with interest @ 9% p.a. from the date of filing of the petition till realization to the petitioners and to deposit the award amount within one month from the date of this award. Copy of Form V duly filled shall be treated as part of this award. Award amount be released to the injured / claimant after deposit by the above said Respondent / Insurance Company.
42. Keeping in view of the facts and circumstances, this petition is allowed. Petitioners are entitled for compensation of Rs. 10,01,000/- from the Respondent i.e. ICICI Lombard General Insurance Company with interest @ 9% p.a. from the date of filing of this petition till realization. The interim compensation, if any, shall be adjusted against this award amount along with the waiver of interest, if any as directed by the court during the pendency of this case. Respondent i.e. ICICI Lombard General Insurance Company is directed to give notice regarding deposit of the said amount to the petitioners and their counsel. As such, petitioners have successfully discharged the onus to prove this Issue No. 2 also and are entitled for this claim amount as above.
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 46/61
43. Apportionment of Award amount: The award amount has to be distributed amongst the claimants. I have already discussed herein above that the dependency of the claimants on the deceased has to be considered for the purpose of deductions but not for apportionment of the award amount. Petitioner No. 1 Smt. Kamla Rani is the mother of deceased Rahul Kumar and is entitled for 75% of the entire compensation amount i.e. Rs.7,50,750/-. Petitioner No. 2 is the father of the deceased and is entitled for 25 % of the award amount i.e. Rs. 2,50,250/-. The share amount of both the petitioners shall be with corresponding interest of the award amount.
44.1. Disbursal of the Award amount: Now the disbursement of award amount has to be considered. Petitioner No. 1 has made a statement of her financial needs of Rs. 20.000/- to Rs.25000/- pm, accordingly, she shall be entitled for an amount of Rs. 1,50,750/- out of Rs. 7,50,750/- with corresponding interest instantly to be credited in her saving bank account nearby to her residence. Remaining amount of Rs. 6,00,000/- shall be fixed into automatically renewable FDRs for 1 to 30 months of Rs. 20000/- each w.e.f. May, 2018 onwards.
44.2. Petitioner No-2 shall be entitled for an amount of Rs. 50,250/- out of Rs. 2,50,250/- with corresponding interest instantly to be credited in his saving bank account nearby to his residence. Remaining amount of Rs. 2,00,000/- shall be fixed into automatically MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 47/61 renewable FDRs for 1 to 20 months of Rs. 10,000/- each w.e.f. May, 2018 onwards. The other conditions of the FDR with regard to withdrawal of the amount and dealing with FDR shall be fixed later on with the disbursement of the award amount of other claimants.
MAC No- 347/16 and MAC No. 154/16
45. ISSUE No. 2 in MAC 347/16 qua death of Laxmi Mishra - Issue No. 1 has been decided in favor of the petitioners that this accident was caused by the rash and negligent driving of the vehicle occupied by the deceased and now it has to be decided as to what compensation is to be paid and by whom. I have already observed herein above while deciding the connected claims that there is no contest on the part of respondents to this claim on statutory defenses. Even the driver, owner and insurance company of the other vehicle bearing No. CH-01-AF-8897 involved in this accident are also not responsible or to pay the compensation. The qualification of the deceased Laxmi Mishra has proved by the document Ex.PW1/1, as per which, she was 12th class passed. She was not working as admitted by PW2 Srishti as well as her father, due to deceased is entitled for her earning @ minimum wages of matriculates which was Rs. 9386/- pm.
46. To determine the compensation, petitioners are required to prove the age and income of the deceased as well as number of dependents. The age of deceased is necessary to apply the multiplier. Though MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 48/61 deceased was daughter of the petitioners and none of the petitioners was supposed to be dependent upon her, yet the mother of the deceased may be considered her dependent to determine this compensation in the similar manner as of a bachelor son as held in Bharti Axa General Insurance Co. Ltd. and Ors. v. Poonam And Ors MAC App. No. 79/2014 NS 413/15. In case of bachelor, the age of the deceased or claimant which is higher is to be considered as held in New India Assurance Company Ltd. V. Shanti Pathak (Smt) (2007) 10 SCC 1 and National Insurance Co. Ltd. V. Shyam Singh (2011) 7 SCC 65. The mother of deceased was aged about 36 years on 1.1.2008 as per her Voter ID Ex.PW2/2. This accident took place on 19.7.2013. The age of claimant comes to 41 years at the time of this accident. As such, age of the claimant is considered 41 years to ascertain the multiplier.
47. After ascertaining the age of the claimant, an appropriate multiplier has to be determined in view of case titled Sarla Verma v. DTC, (2009) 6 SCC 121, as per which multiplier is of 14 is applicable to determine this compensation qua Loss of Estate. Necessary deductions have to be made out of the income / earning of the deceased towards her personal expenses in view of titled Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65. Deceased was bachelor and Petitioner No. 2 Kusum Mishra is the mother as well as dependent dependent her, due to 50% earning of the deceased has to be deducted out of her yearly earnings.
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 49/61
48. Besides it, the future income of the deceased is also to be considered in view of latest judgment titled National Insurance Company Limited vs. Praney Sethi & Ors, SLP (Civil) No. 25590 of 2014 decided on 31.10.2017. The claimant Smt. Kusum Mishra is also entitled for 25% for future damages in view of her age besides Funeral Charges of Rs. 15,000/-.
49. I have already observed that the deceased Laxmi Mishra was earning as per minimum wages of Rs. 9386/- pm and an amount of Rs. 4693/- pm has to be deducted out of her monthly income towards personal expenses. Rs. 4693/- has to be multiplied by 12 which comes to Rs. 56,316/- p.a. Thereafter, annual income has to be multiplied by multiplier of 14 as per Sarla Verma v. DTC (supra). Rs. 56,316 x 14 = Rs. 7,88,424/-. Thereafter, 25% income towards future income of the deceased has to be added in terms of National Insurance Co. v. Pranay Shetty (Supra) i.e. 1,97,106/- has to be added to above said amount. As such, total loss of estate comes to Rs. 7,88,424 + 1,97,106 = Rs. 9,85,530/-. Besides the above said damages / compensation, the other compensation under the conventional heads i.e. Funeral expenses of Rs. 15,000/- has to be added to the above said amount.
50. As such, petitioners Smt. Kusum Mishra & Ors. are entitled for the compensation as under:
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors. MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 50/61
1. Loss of dependency / contribution to Rs. 9,85,530/-
family:
2. Funeral Charges Rs. 15,000/-
Total = Rs. 10,00,530/-
Rounded off Rs.
10,01,000/-
AWARD
This petition is allowed. Respondent i.e. ICICI Lombard General Insurance Company Ltd. is directed to pay a compensation of Rs.
10,01,000/- with interest @ 9% p.a. from the date of filing of the petition till realization to the petitioner and to deposit the award amount within one month from the date of this award. Copy of Form V duly filled shall be treated as part of this award. Award amount be released to the injured / claimant after deposit by the Respondent No. 3.
51. Keeping in view of the facts and circumstances, this petition is allowed. Petitioners are entitled for compensation of Rs. 10,01,000/- from the Respondent i.e. ICICI Lombard General Insurance Company with interest @ 9% p.a. from the date of filing of this petition till realization. The interim compensation, if any, shall be adjusted against this award amount along with the waiver of interest, if any, as directed by the court during the pendency of this case. Respondent i.e. ICICI Lombard General Insurance Company is directed to give notice MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 51/61 regarding deposit of the said amount to the petitioners and their counsel. As such, petitioners have successfully discharged the onus to prove this Issue No. 2 also and are entitled for this claim amount as above.
52.1 Apportionment of Award amount: The award amount has to be distributed amongst the claimants. Petitioner No. 2 Smt. Kusum Mishra is the mother of deceased Laxmi Mishra and is entitled for 75% of the entire award amount i.e. Rs.7,50,750/-. Petitioner No. 1 Vasudev Mishra is the father of the deceased and is entitled for 25 % of the award amount i.e. Rs. 2,50,250/-. The share amount of both petitioners shall be with corresponding interest of the award amount.
52.2. Disbursement of the award amount: Now the disbursement of award amount has to be considered. Petitioner No. 2 Kusum Mishra shall be entitled for an amount of Rs. 1,50,750/- out of Rs. 7,50,750/- with corresponding interest instantly to be credited in her saving bank account nearby to her residence. Remaining amount of Rs. 6,00,000/- shall be fixed into automatically renewable FDRs for 1 to 60 months of Rs. 10000/- each w.e.f. May, 2018 onwards.
52.3. Petitioner No-1 Vasudev Mishra shall be entitled for an amount of Rs. 50,250/- out of Rs. 2,50,250/- with corresponding interest instantly to be credited in his saving bank account nearby to his residence. Remaining amount of Rs. 2,00,000/- shall be fixed into MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 52/61 automatically renewable FDRs for 1 to 20 months of Rs. 10,000/- each w.e.f. May, 2018 onwards. The other conditions of the FDR with regard to withdrawal of the amount etc. shall be fixed later on with the disbursement of the award amount of other claimants.
MAC No. 154/1653. ISSUE No. 2 in MAC No. 154/16 qua the death of Mayank Aggarwal- Issue No. 1 has been decided in favor of the petitioner that this accident was caused by the rash and negligent driving of the vehicle occupied by the deceased. The qualification of the deceased Mayank Aggarwal is also similar to other deceased that he was 12 th class passed. Though PW2 Srishti has admitted during cross examination that none of the deceased was working or earning at the time of accident, yet claimant Smt. Urmila Aggarwal has alleged that the deceased was running a partnership firm and has proved partnership deed, registration and income of the partnership firm on record. Even one ITR of the firm has also proved on record, but this ITR of the firm has proved that firm was running in losses due to it cannot be considered that the deceased was earning something from this partnership firm. However, deceased Mayank Aggarwal is entitled for earning @ minimum wages of matriculates which was Rs. 9,386/- pm. Similar to the other claimants, the deceased was also bachelor at the time of accident and, in case of his death, the age of the claimant i.e. his mother has to be considered being sole dependent in view of MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 53/61 case law titled Bharti Axa General Insurance Co. Ltd. and Ors. v. Poonam And Ors MAC App. No. 79/2014 NS 413/15, New India Assurance Company Ltd. V. Shanti Pathak (Smt) (2007) 10 SCC 1 and National Insurance Co. Ltd. V. Shyam Singh (2011) 7 SCC 65. The mother of deceased Mayank Aggarwal is aged about 61 years as per her Aadhar card Ex. PW1/1. Accident took place on 19.7.2013 and the age of claimant comes to 61 years at the time of accident. As such, age of the claimant is considered as 61 years to ascertain the multiplier. The multiplier of 7 has to be applied against the age of 61 years to determine this compensation in view of case titled Sarla Verma v. DTC, (2009) 6 SCC 121.
54. Since the deceased was bachelor and claimant Smt. Urmila Aggarwal is the mother and sole claimant of the deceased due to 50% earning of the deceased has to be considered towards deduction out of yearly earnings of the deceased. However, no future damages are to be awarded to the claimant being her age more than 60 Years in view of case titled National Insurance Company Limited vs. Praney Sethi & Ors, SLP (Civil) No. 25590 of 2014 decided on 31.10.2017. However, she is entitled for funeral charges @ Rs. 15,000/- besides the above said compensation for Loss of Estate.
55. I have already observed that the deceased was earning as per minimum wages of Rs. 9,386/- pm and an amount of Rs. 4693/- pm has to be deducted out of his monthly income towards personal MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 54/61 expenses. Rs. 4693/- has to be multiplied by 12 which comes to Rs. 56,316/- p.a. Thereafter, annual income has to be multiplied by multiplier of 7 as per Sarla Verma v. DTC (supra). Rs. 56,316 x 7 = Rs. 3,95,212/-. Besides the above said damages / compensation, the other compensation under the conventional heads i.e. Funeral expenses of Rs. 15,000/- is also to be awarded in terms of Pranay Shetty judgment..
56. As such, petitioner Smt. Urmila Aggarwal is entitled for the compensation as under:
1. Loss of dependency / contribution to Rs. 3,95,212/-
family:
2. Funeral Charges Rs. 15,000/-
Total = Rs. 4,09,212/-
Rounded off Rs.
4,10,000/-
AWARD in MAC No. 154/16
This petition is allowed. Respondent i.e. ICICI Lombard General Insurance Company Ltd. is directed to pay a compensation of Rs.
4,10,000/- with interest @ 9% p.a. from the date of filing of the petition till realization to the petitioner and to deposit the award amount within one month from the date of this award. Copy of Form V duly filled shall be treated as part of this award. Award amount be released to the MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 55/61 injured / claimant after deposit by the Respondent.
57. Keeping in view of the facts and circumstances, this petition is allowed. Petitioner is entitled for compensation of Rs. 4,09,212/- (rounded off Rs. 4,10,000/-) from the Respondent i.e. ICICI Lombard General Insurance Company with interest @ 9% p.a. from the date of filing of the petition till realization. The interim compensation, if any, shall be adjusted against this award amount along with the waiver of interest, if any as directed by the court during the pendency of this case. Respondent i.e. ICICI Lombard General Insurance Company is directed to give notice regarding deposit of the said amount to the petitioner and her counsel. As such, petitioner has successfully discharged the onus to prove this Issue No. 2 and is entitled for the claim amount as above.
58.1. Apportionment of Award amount: The award amount has to be awarded to the claimant being sole claimant and is entitled for entire award amount.
58.2. Disbursement of the award amount: Petitioner shall be entitled for an amount of Rs. 60,000/- out of Rs. 4,10,000/- with corresponding interest instantly to be credited in her saving bank account nearby to her residence. Remaining amount of Rs. 3,50,000/- shall be fixed into automatically renewable FDRs for 1 to 35 months of Rs. 10000/- each w.e.f. May, 2018 onwards.
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 56/61
59. Liability: Petitioners in all petitions have proved that the offending vehicle bearing No. DL-7CM-0135 make Xylo was insured with the insurance company i.e. ICICI Lombard General India Insurance Co. Ltd. I have already observed herein above that accident took place by the fault of the driver of the vehicle No. DL-7CM 0135 due to Insurance Company insured this vehicle is liable to pay entire compensation to all petitioners.
60. Ld. Counsel for both Insurance companies of both vehicles have denied their liability to pay this compensation and have tried to shift the burden on opposite company to pay this compensation. Ld. Counsel for Oriental Insurance Company has argued that it was not the fault of the vehicle insured by the company in causing this accident due to ICICI Lombard Insurance Company is liable to pay this compensation. On the other hand, Ld. Counsel for ICICI Lombard Insurance Company has countered the arguments and shifted the burden to pay this compensation by opposite company.
61. I have already observed that the vehicle occupied by all injured / deceased bearing No. DL-7CM 0135 was sole responsible for this accident, due to the owner and insurance company of vehicle bearing No. CH-01AF 8897 are not liable to pay any compensation. To make the joint tortfeasors liable to shift the burden of the payment of compensation proportionately, there must be composite negligence of both vehicles in causing accident and in the absence of proving it, MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 57/61 both the insured or insurers cannot be held liable to pay compensation. In fact, composite negligence is not equivalent to contributory negligence. In case of composite negligence, all the joint tortfeasors have to be impleaded and their extent of composite negligence should be determined to apportionate the liability to reimburse the claim, but in case of sole negligence of one vehicle, the driver and owner of other vehicle cannot be held liable to reimburse the claim. As such, ICICI Lombard General Insurance Company Ltd. is responsible to pay the entire compensation amount and nothing is to be shared by Oriental Insurance Company Ltd. It is not a case of violation of terms and condition of the insurance policy by the driver or owner of the offending vehicle and all the claimants are third party as per policy, accordingly, Respondent / ICICI Lombard Insurance Company Ltd. is liable to pay compensation amount on behalf of the owner of the offending vehicle to all claimants.
62. Now the terms and conditions of the FDRs which will be common to all claimants have to be set out as under:
62.1. The interest on the above said FDRs shall be calculated on monthly basis and to be credited automatically through ECS in the saving account of the petitioner/s nearby to his/her / their residence on monthly basis. FDRs amount shall be paid on maturity basis in the same account of the petitioner/s against which interest amount is/are being credited through ECS automatically.
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 58/61 62.2. The Manager, UCO Bank or of any other bank as desired by the claimant/s shall open the saving bank account of the claimant/s or transfer to his/her/their existing account/s, if any, nearby to his/her/their residence/s after taking relevant documents.
62.3. The withdrawal from the aforesaid bank account/s of the petitioners / claimant/s shall be after due verification by the bank and the bank shall issue photo identity card to the petitioner/s to facilitate the identity.
62.4. The original FDRs shall be retained by the bank in the safe custody. However, the statement containing FDR numbers, FDRs amount, date of maturity and maturity amount shall be furnished to the claimant/s.
62.5. No loan, advance or withdrawal / pre-mature discharge shall be allowed on the above-said FDRs without the permission of this Tribunal. The bank shall not open any joint account of the petitioner/s.
62.6. No cheque book or debit card shall be issued to the claimants/ petitioner/s without the permission of this Tribunal against the account in which amount is being credited. In case the debit card and / or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall freeze the account of the claimant/s so that no debit card be issued in respect MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 59/61 of the account of the claimant/s from any other branch of the bank.
62.7. That the bank shall make an endorsement on the passbook of the claimant to this effect, that no cheque book and / or debit card have been issued and shall not be issued without the permission of the Court and claimant/s shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
62.8. The bank shall prepare FDRs in its own name on the receipt of the award amount from the Respondent / ICICI Lombard Insurance Company LTd. till the date petitioner/s approach for the release of the amount and thereafter amount along with interest shall be released to the petitioner/s per award of this Tribunal.
62.9. On the request of the petitioner/s, the bank shall transfer the saving account to any other bank of UCO bank or any other bank according to the convenience of the petitioner/s. The claimants can operate the saving bank account from the nearest branch of UCO Bank and on the request of the claimant/s, the bank shall provide the said facility.
62.10. The petitioners shall furnish all the relevant documents for opening of the saving bank account and FDR to Nodal Officer, UCO Bank, KKD, Delhi.
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors. MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors. MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 60/61 62.11. Petitioner / claimant (s) shall file a compliance report on next date of hearing about opening of saving bank account with the nationalized bank nearby to their/his/her residence and to get endorsed from the bank that no cheque-book, debit card or any other facility like ECS / NFTT etc. has been provided against this bank account.
63. A copy of this judgment be given free of cost to the parties concerned and also be sent to the court of Ld. MM concerned as well as DLSA, Shahdara. Copy of Form V duly filled shall be treated as part of this award. File be consigned to RR and a separated file for compliance be maintained for 21.04.2018.
Announced in open court (DEVENDER KUMAR)
On 17.03.2018 PO-MACT/SHAHDARA
KARKARDOOMA COURTS, DELHI
MAC No. 115/16 Srishti Rugtagi Vs. Vijay Singh Gautam & Ors.
MAC No.500/16 Kamla Rani Vs. Nitish Gautam & Ors.
MAC No.347/16 Vasudev Mishra Vs. Vijay Singh Gautam & Ors.
MAC No.154/16 Urmila Aggarwal Vs. Vijay Singh Gautam & Ors. 61/61