Delhi District Court
Jitender Kumar vs Main Pal Singh & Ors on 9 May, 2016
IN THE COURT OF MS. MADHU JAIN:
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL: SOUTH
EAST DISTRICT/ SAKET COURTS COMPLEX: NEW DELHI
Suit No. 94/10
FIR number 80/2010 PSJaitpur
Jitender Kumar Vs Main Pal Singh & Ors
Unique Identification number: 02403C0258912010
Disability Case
Sh. Jitender Kumar S/o Sh. Ram Gopal
R/oHouse no. A60/2, Shivam Colony, Ishmailpur Vistaar, Faridabad, Haryana
And also at House no. 395, VillageBasantpur,
TehsilFaridabad, DistrictFaridabad, Haryna
(being minor representing through his natural guardian/legal guardian/father)
........................... Petitioner/Claimant
Versus
1. Sh. Main Pal Singh S/o Sh. Manavir Singh (driver)
R/o Village Thaska, PostThaska, PSNanouta,
DistrictSaharanpur, Uttar Pradesh
At present House no. 954, Gali no. 12,
Tughlakabad Extenstion, New Delhi
2. Sh. Hamela S/o Sh. Akelu (owner)
R/o Village Thaska, PostThaska, PSNanouta,
DistrictSaharanpur, Uttar Pradesh
3. Sh. Gorakh Lal S/o Sh. Chiranji Lal (registered owner)
R/o VillageSewapur, Firozabad, Uttar Pradesh
.....................Respondents
Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 1 of 15) Initial date of Institution : 20.05.2010 Date of reserving the judgment : 31.03.2016 Date of pronouncement the judgment : 09.05.2016 Judgment:
1. Present claim proceedings initiated on the basis of accident information report (AIR) under section 166(4) of Motor Vehicle Act filed by the police on 20.05.2010.
2. Brief facts of the case are that on 17.04.2010 at 01.00pm, minor injured was going on foot with his father to his school and when they reached at Meethapur Chawk Bus stop and they were trying to cross the road before the red light of Meethapur, suddenly offending Tractor alongwith water tanker bearing number UP83A7161 being driven by respondent o. 1 driver in rash and negligent manner hit the injured Jitender due to which he fell down on the road, sustained injuries and immediately removed to AIIMS Hospital.
3. FIR number 80/2010 PSJaitpur under Section 279/337 IPC was registered on the statement of father of injured Ram Gopal. During investigation, police prepared the site plan of the place of occurrence, seized the offending vehicle, conducted its mechanical inspection, took the photographs of the offending vehicle, collected MLC, issued notice under section 133 of Motor Vehicle Act and arrested respondent no.1 driver on apprehension memo. On completion of investigation found respondent no. 1 driver/accused of rash and negligent driving, hence chargesheeted him for the commission of offence under section 279/338 of Indian Penal Code and section 146/196 of Motor Vehicle Act.
4. During proceedings, reply filed by respondent no. 1 and respondent no. 2. They Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 2 of 15) took the plea that respondent no. 2 is not the owner /registered owner of the tractor bearing number UP83A7161 and is liable for any relief claimed by the petitioner and his name has been given without any proof. They further took the plea that amount claimed by the petitioner in the para under reply is not only an excessive and inflated figure but also does not disclose on what account the respondents are liable to pay any compensation to the petitioner. It is denied that accident occurred due to the rash and negligent driving of the respondent no. 1 who was driving the vehicle at the time of accident and due to his negligency an innocent person became victim of the same. It is denied that due to this accident, petitioner/minor has sustained grievous injuries and other multiple injuries. It is also denied that due to the said accident, the petitioner has suffered great mental pain, agony, loss of income, loss of work, loss of enjoyment, loss of studies and loss of social activities etc. It is denied that petitioner and his father has spent a huge amount on the treatment of petitioner and due to the treatment petitioner and his father and parents have loss of income and facing other problems.
5. Vide order dated 26.11.2012, respondents were proceeded exparte. Vide order dated 09.04.2013 exparte order was recalled.
6. Vide order dated 04.07.2013, petitioner is not entitled for interest from 04.07.2013 till the conclusion of prosecution evidence and prosecution evidence was closed on 17.04.2014. Thus, petitioner is not entitled for interest from 04.07.2013 to 17.04.2014.
7. Perusal of records shows that issues in the present case have not framed. But to facilitate the judgment, it is necessary to frame issues which are as under:
1. Whether the injured Jitender received injuries in the accident which Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 3 of 15) took place on 17.04.2010 at around 01.00pm involving offending vehicle i.e Tractor alongwith water tanki bearing number UP83A7161 due to rash and negligent driving of respondent no. 1 and owned by respondent no. 2 and 3? OPP
2. To what amount of compensation the petitioner is entitled to claim and from whom ?
3. Relief.
8. During proceedings, petitioner was examined for disability. Disability certificate dated 31.01.2012 issued by the Jai Prakash Narayan Apex Trauma Centre, AIIMS, New Delhi. In this report, it is mentioned that case of Jitender Kumar is an operated case of "pelvic fracture urethral distraction defect with SPC in situ. He is physically handicapped and has 100% physical impairment in relation to his urinary function due to urinary retention".
9. During evidence, Sh. Ram Gopal, father of injured petitioner Jitender examined himself as PW1. He tendered his affidavit of evidence and relied upon certain documents i.e. discharge slip dated 13.05.2010 as Ex. PW1/1 (OSR), discharge slip dated 06.02.2010 as Ex. PW1/2 (OSR), discharge slip dated 01.04.2012 as Ex. PW1/3 (OSR), emergency admission card/prescription as Ex. PW1/4, OPD card as Ex. PW1/5 (collyOSR), certified copies of the criminal records as Ex. PW1/6 (colly), disability certificate as Ex. PW1/7, medical bills as Ex. PW1/8 (colly), certificate regarding date of birth and education issued from School as Ex. PW1/9 and copy of his election I card as Ex. PW1/10 (OSR).
10. During evidence, petitioner also examined Dr. Maneesh Singhal, Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 4 of 15) Additional Professor, Department of Surgery, AIIMS, New Delhi as PW2. He stated that he was the Consultant Incharge of petitioner Jitender Kumar. Petitioner Jitender Kumar was admitted in AIIMS hospital on April 2010. He had pelvic fracture with urethral injury as a result of which he suffered disability, therefore a disability certificate was issued by their hospital. The certificate mentioned that "he is physically handicapped and has 100% physical impairment in relation to his urinary function due to urinary retention in accordance with the guidelines for disability assessment to quantify permanent physical impairment as notified in the Gazette of India on June 2001". With regard to his impotence, it is not possible to mention based on his record that whether he is currently impotent or not. Whether the patient suffered impotency or not due to the present injury could only be established by Andrology OPD under the department of Urology. He further stated that he identified the signature of Professor Amlesh Seth, Department of Urology. The copy of the disability certificate is Ex. PW2/1. (OSR).
11. No evidence has been led by any of the respondents.
12. After hearing arguments and considering the material on record, my issue wise findings are as follows: Issue no. 1 (Negligence)
13. PW1 Ram Gopal in his affidavit of evidence (Ex.PW1/A) categorically stated that injured Jitender Kumar got injuries due to the rash and negligent driving of respondent no. 1. His version is duly corroborated by police investigation. Police during investigation also found respondent no.1 accused of rash and negligent driving, hence chargesheeted him for commission of offence under section 279/338 of Indian Penal Code and section 146/196 of Motor Vehicle Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 5 of 15) Act.
14. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court (MP) in case titled as "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of Hon'ble High Court of Delhi in "National Insurance Company Limited Vs. Pushpa Rana" (2009 ACJ 287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
15. In view of the above discussion, petitioner is able to prove that he suffered injuries due to rash and negligent driving of the respondent no. 1. Accordingly, the issue no. 1 is decided in favour of the petitioner and against the Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 6 of 15) respondents.
Issue no. 2 (Compensation)
16. In injury cases, the claimants are entitled to pecuniary as well as non pecuniary damages. Apex court in Raj Kumar Vs Ajay Kumar 2011 (1) SCC 343 held that compensation awarded must be "just compensation" means to the extent possible Tribunal fully and adequately restore the claimant to the position which he/she was having prior to the accident. The person is not only to be compensated for physical injury, but also for loss which he /she suffered as a result of such injury. Apex court in R.D.Hatangadi Vs Press Control (India) Pvt Ltd (1995) 1 SCC 551 held that pecuniary and non pecuniary compensation to be assessed separately. Pecuniary damages are those which the victim has actually incurred, which are capable of being calculated in terms of money, whereas non pecuniary damages are those which are not capable of being assessed by arithmetical calculation, however no amount of compensation can restore the physical frame of the victim, therefore object to compensate such injury is "so far as money can compensate" because it is impossible to equate money with the human suffering or personal deprivation. To compute compensation involved some guess work, some hypothetical considerations, some amount of sympathy linked with the nature of disability caused. In Nagppa Vs Gurdayal Singh 2003 (2) SCC 274 apex court observed that while calculating such damages Tribunal required to have some guess work taking into account the inflation factor.
17. In the light of aforesaid guidelines and parameters, this Tribunal has to assess the compensation to be awarded to the claimant/petitioner.
18. Medical Expenses:PW1 in his affidavit of evidence stated that due to the said Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 7 of 15) accident, injured petitioner received multiple grievous injuries. As per MLC issued from AIIMS Trauma Centre of injured petitioner Jitender suffered grievous injury. Discharge summary (Ex. PW1/1) issued from JPN AIIMS Truama Centre shows that injured petitioner Jitender was admitted on 17.04.2010 and discharged on 13.05.2010 and diagnosed to have suffered " RT. Femoral A. Thrombectomy and Femoral V repair with # Pelvisleft ILIAC wing, Left Hemisacrum B/L INF Pubic Rami, B/L Acetabuli & # RT. N.O.F.with SPC with STSG. Discharge Note (Ex. PW1/2) shows that injured Jitender was again admitted on 01.06.2010 and discharged on 02.06.2010 and diagnosed to have suffered "FUC of Polytrauma with PUS Discharge from Kwire OFRT side for NOF#". Discharge summary (Ex. PW1/3) shows that injured petitioner was admitted on 31.12.2011, date of first operation on 02.01.2012, date of second operation on 04.01.2012 and diagnosed to have suffered " POC of SYMPHSIS plate with infection (1.5 yr old)". During proceedings, petitioner was examined for disability. Disability certificate dated 31.01.2012 issued by the Jai Prakash Narayan Apex Trauma Centre, AIIMS, New Delhi. In this report, it is mentioned that case of Jitender Kumar is an operated case of "pelvic fracture urethral distraction defect with SPC in situ. He is physically handicapped and has 100% physical impairment in relation to his urinary function due to urinary retention". As statement of PW2 Dr. Maneesh Singhal, Additional Professor, Department of Surgery, AIIMS, New Delhi that petitioner Jitender Kumar was admitted in AIIMS hospital on April 2010. He had pelvic fracture with urethral injury as a result of which he suffered disability, therefore a disability certificate was issued by their hospital. The certificate mentioned that "he is physically handicapped and has 100% physical impairment in relation to his urinary function due to urinary retention in accordance with the guidelines for disability assessment to quantify permanent physical impairment as notified in the Gazette of India on June Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 8 of 15) 2001". With regard to his impotence, it is not possible to mention based on his record that whether he is currently impotent or not. Whether the patient suffered impotency or not due to the present injury could only be established by Andrology OPD under the department of Urology. Petitioner for claiming medical expenses relied upon medial bills (Ex. PW1/8 colly) for amounting of Rs. 30,272/. In such circumstances, a sum of Rs.35,000/ is granted to the petitioner for medical expenses.
19. Compensation for Pain & Sufferings: Petitioner has suffered 100% physical impairment in relation to his urinary function due to urinary retention, therefore, keeping in view the nature of injuries, duration of treatment and trauma of accident, a sum of Rs.15,000/ is granted to the petitioner towards pain and sufferings.
20. Loss of Amenities and enjoyment of Life: Petitioner suffered 100% physical impairment in relation to his urinary function due to urinary retention, this injury will definitely hamper his daily activities and enjoyment in every walk of life. Hence, a sum of Rs. 25,000/ is granted towards loss of amenities and enjoyment of life.
21. Loss of Study during treatment: PW1 Ram Gopal in his affidavit of evidence stated that his injured son was studying and he was brilliant in his studies but after this accident and due to permanent disability his mind is not set up in his study. He further submits that due to heavy expenses incurred on the treatment of his injured son he left his job. He further submits that due to 100% physical impairment in relation to his urinary function due to urinary retention his whole life became useless for always and he feels bad for that.
Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 9 of 15) One school certificate (Ex. PW1/9) issued from Govt. Boys Sr. Sec. School no. 1, Badarpur, New Delhi44 is on record wherein it is certified that injured Jitender Kumar S/o Sh. Ram Gopal, student ID no. 20090149558 Adm. No. 16183 is a regular student of that school and her date of birth is 11.04.1996. Accordingly, petitioner is granted Rs. 10,000/ towards loss of study during treatment.
22. Loss of future income: As per School certificate (Ex. PW1/6) of injured Jitender Kumar, date of birth of injured is mentioned as 11.04.1996 therefore, he is more than 14 years at the time of accident i.e. 17.04.2010. Due to the present injuries his entire carrier is ruined. It is natural that with this disability and injuries the petitioner entire future career/earning capacity has been destroyed. Present injury will somehow diminish his earning capacity. As per disability certificate, petitioner suffered 100% physical impairment in relation to his urinary function due to urinary retention, in view of the judgment of Delhi High Court titled as "Laxmi Narain Vs. Trilochan Singh & Ors., FAO No. 289/99, dated 04.05.2009, Delhi", the total functional disability towards whole body is assessed around 50%.
23. Petitioner's income is assessed at the rate of Rs. 1250/per month (as per II schedule Rs. 15,000/ per annum). Petitioner being aged more than 14 years, also entitled for 50% increase in income towards future prospect [relied upon Sanjay verma Vs Haryana Roadways 2014 ACJ 692 (SC), Mirajuddin Vs Shonki Ram & Ors MAC App 604/2011 dated 03.12.2013 (Delhi), Reliance General Insurance Company Litimed Vs Haresh Kumar @ Harish Kumar MAC App no. 399/12 dated 27.05.2014 (Delhi), Uttranchal Transport Corporation Vs. Navneet Jerath 2013 ACJ 1966 (Delhi), Neerupam Mohan Mathur Vs New India Assurance Company 2013 (14) SCC 15]. Therefore, his Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 10 of 15) monthly income is assessed around (Rs.1250/+ Rs.50% of Rs.1250/= Rs.1875/). Apex court in Raj Kumar Vs. Ajay Kumar 2011(1) SCC 343, mandated multiplier method for calculation of compensation for future loss of earning capacity which is as follows:
(a) Annual income= Rs.1875/X12=Rs.22,500/
(b) loss of future earning per annum (50% of the prior annual income)= Rs.22,500/ X 50% =Rs 11,250/
(c) Petitioner is found to be more than 14 years of age at the time of accident,. Therefore, applicable multiplier as per Sarla Verma Case is 18.
(d) Loss of future earnings= Rs 11,250X18= Rs. 2,02,500/ Thus, sum of Rs.2,02,500/ is granted towards loss of future income.
24. Attendant Charges: Petitioner suffered disability injuries and will require attendant for most number of occasions throughout entire life. Hence, a lump sum amount of Rs. 20,000/ is granted towards attendants charges.
25. Special Diet and Conveyance Charges: PW1 in his affidavit of evidence has not stated anything about under this head. However, this Tribunal is obliged to grant just compensation under this head. In such circumstances, a sum of Rs.5,000/ each is granted to the petitioner towards conveyance charges and Special diet. Thus, total sum of Rs.10,000/ is granted under this head.
26. Disfigurement: Petitioner suffered disability in relation to his whole body which causes disfigurement of the body, therefore a sum of Rs.10,000/ granted to him towards disfigurement.
27. The total compensation is assessed for injured as under: Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 11 of 15) 1 Compensation for medical expenses Rs.35,000/ 2 Compensation for pain & suffering Rs.15,000/ 3 Compensation for special diet & conveyance Rs.10,000/ 4 Loss of future earning capacity/future income Rs.2,02,500/ Compensation for loss of amenities and Rs.25,000/ 5 enjoyment of life 6 Attendant Charges Rs 20,000/ 7 Compensation for disfigurement Rs.10,000/ 8 Loss of study during treatment Rs.10,000/ Total Rs. 3,27,500/ Relief:
28. The petitioner is hereby awarded a sum of Rs. 3,27,500/ (Rupees Three lacs twentyseven thousand five hundred only) with interest @ 9% per annum from the date of filing of the present petition, till the date of realization of the amount in favour of petitioner and against the respondents on account of their liability being joint and several (excluding interest w.e.f. 04.07.2013 to 17.04.2014).
29. The driver R1 is the principal tort feasor whereas R2 and R3 being the owners vicariously liable for the acts of R1.
30. In view of the above discussion, the respondent no.1, 2 and 3 are directed to discharge the liability of the award amount within a period of 30 days from today along with the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay.
Release of awarded amount:
31. Share of petitioner (Jitender Kumar): A sum of Rs. 3,27,500/ (Rupees Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 12 of 15) Three lacs twentyseven thousand five hundred only) alongwith proportionate interest thereon, is awarded to the petitioner. Out of this amount, Rs.1,27,500/ alongwith proportionate interest be immediately released to the petitioner on realization. And for balance amount of Rs. 2 lacs alongwith proportionate interest thereon be kept in form of FDRs in the following phased manner :
1. Rs. 1,00,000/ for period of 1 year
2. Rs. 1,00,000/ for period of 2 years
32. Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
33. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
34. As per orders of Hon'ble High Court in case titled " New India Assurance Co.
Ltd. Vs. Ganga Devi & ors. Bearing MAC. App.135/2008" as well as in another case titled as "Union of India Vs. Nanisiri" bearing MAC Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimant.
35. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit/ savings account by Hon'ble High Court, respondent no. 1, 2 and 3 are directed to deposit the awarded amount in favour of the petitioner with State Bank of India, Saket Courts Complex Branch, against account of Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 13 of 15) petitioners. Within a period of 30 days from today, failing which respondent no. 1,2 and 3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
36. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "Fixed deposit/saving account" in the following manner:
(i) The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimant/ petitioner after due verification and the Bank shall issue photo identity Card to claimant/ petitioner to facilitate identity.
(iii) No cheque book be issued to claimant/ petitioner without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original pass Book shall be given to the claimant/ petitioner alongwith photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to claimant/ petitioner at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii) Half yearly statement of account be filed by the Bank in this court.
(viii) On the request of claimant/ petitioner, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimant/ petitioner shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, state Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 14 of 15) Bank of India, Saket Courts Complex Branch, New Delhi.
Directions for the respondent no. 1,2 and 3
37. The Respondent no. 1,2, and 3 are directed to file the compliance report of their having deposited the awarded amount with the State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
38. The Respondent no.1, 2 and 3 will intimate to the claimant/ petitioner about it having deposited the cheques in favour of petitioner in terms of the award, at the address of the petitioner mentioned at the title of the award, so as to facilitate him to withdraw the same.
39. Copy of this award/judgment be given to all concerned.
40. Put up the matter for compliance on 08.07.2016.
Announced in open Court Dated:09.05.2016 (Madhu Jain) POMACT02/(South East District) Saket, New Delhi/09.05.2016 Suit no. 94/10 Jitender Kumar Vs Main Pal Singh & Ors (Pg 15 of 15)