Delhi District Court
Sh. Gauri Shankar vs Sh. Jagdish Singh (OwnerCumDriver) on 7 July, 2011
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IN THE COURT OF SH. S. S. MALHOTRA, ADDITIONAL DISTRICT
JUDGE/POMACT/EAST/KARKARDOOMA COURTS:DELHI
MACT No. : 658/06
Date of filing of petition : 14.11.2006
Date of transfer of petition to the Court : 25.03.2010
Date of Arguments : 23.05.2011
Date of Award : 07.07.2011
IN THE MATTER OF:
Sh. Gauri Shankar
S/o Late Sh. Jogi Dass Gupta
R/o 1/5138, Gali No. 5, Balbir Nagar,
P.S. Shahdara, Delhi ......Petitioner
Versus
1 Sh. Jagdish Singh (ownercumdriver)
S/o Sh. Bhowal Singh
R/o Village & P.O. Chhata,
District Mathura, U.P.
2 The Oriental Insurance Company Limited (insurer)
88, Janpath, Connaught Place,
New Delhi ......Respondents
AWARD UNDER SECTION 166 & 140 OF THE MOTOR VEHICLE ACT 1 Vide this award, I shall dispose of the petition of Sh. Gauri Shankar (herein after referred to be as ''the injured'') as filed by him under section 166 & 140 of M.V. GAURI SHANKAR VS. JAGDISH SINGH & ORS.
2/12Act against both the respondents i.e. the respondent no. 1, the ownercumdriver of Tata Tempo bearing registration no. UP85M9242 (hereinafter referred to be as 'the offending vehicle'), and the respondent no. 2, the insurance company of the said offending vehicle, thereby, claiming a compensation to the extent of Rs. 5 lacs along with interest @ 18% p.a. from the date of filing the petition till realization on account of grievous injuries/disability suffered by him on his person in road accident on 24.08.2006 due to the rash and negligent driving of the respondent no. 1. 2 Brief facts as stated by the petitioner in the petition are, that on 24.08.2006 at about 8.30 p.m. the injured/petitioner along with other passenger was travelling in Car bearing registration no. DL4CU5773 (hereinafter referred to be as 'the victim vehicle') and was proceeding towards Delhi and when the said victim vehicle reached at Barsana Chowk, Chhata Town, District Mathura, U.P. then the offending vehicle being driven by the respondent no. 1 in rash and negligent manner and without caring any traffic rules came and hit the victim vehicle in which the petitioner was travelling. As a result of forceful impact the petitioner and other copassenger suffered grievous injuries all over the body. It is further stated that due to this accident the petitioner suffered fracture on left shoulder, fracture on pelvis, serious injuries on forehand, abrasions and blunt injuries all over the body. It is further stated that an FIR No. 128/2006 under section 279/337/427 IPC was registered at P.S. Chhata, District Mathura, U.P. against the respondent no.1. It is further stated that the petitioner/injured at the time of accident/injury was 57 years of age and he was self employed and was earning Rs. 10,000/ per month. He has spent Rs. 3 lacs on his treatment. It is further stated that because of this accident he has suffered permanent GAURI SHANKAR VS. JAGDISH SINGH & ORS.
3/12disability, great loss, metal pain and agony and as such he has claimed a compensation of Rs. 5 lacs alongwith interest @ 18% p.a. from the date of filing the petition against both the respondents who are stated to be liable jointly and severally for paying the compensation to the petitioner.
3 The respondent no. 1 has filed written statement thereby denying all the contents with respect to age and earning capacity of the petitioner for want of knowledge. The fact that the answering respondent was driver as well as owner of the offending vehicle, however, is not denied. The fact that the vehicle of the answering respondent was duly insured with the respondent no. 2 is also not denied and it is submitted that the negligence was on the part of the driver of the car bearing registration no. DL4 CU5773. In additional plea, it is submitted that before succeeding, the petitioner is required to clarify the facts with respect to FIR, site plan and charge sheet and also his XRays reports, medical report and other documents showing permanent disability. It is further submitted that the answering respondent was having a valid driving licence at the time of accident and therefore, the liability, if any, is of the respondent no. 2 and it is further submitted that the claim sought by the petitioner is highly excessive, exaggerated and without any basis and it is prayed that the petition of the petitioner is liable to be dismissed and may kindly be dismissed against him. 4 Respondent no. 2 has filed separate written statement taking preliminary objections that the petitioner has no cause of action to file the present petition, the contributory negligence on the part of the driver of the victim vehicle can not be ruled out, the petition is bad for non joinder of parties and the claim sought is highly excessive, exaggerated, exorbitant and without any basis. The answering respondent GAURI SHANKAR VS. JAGDISH SINGH & ORS.
4/12would not be liable to pay any compensation if the driver of the offending vehicle was not holding any valid driving licence or was disqualified from holding or obtaining a valid and effective driving licence or if there would be any violation of terms and conditions of the insurance policy. He has also taken all the defences under section 170/149 of Motor Vehicle Act and he has reserved its right to amend his written statement, if new facts are brought to its notice. On merits, the facts are generally denied for want of knowledge. It is specifically denied that there was rash and negligent driving on the part of the respondent no. 1. The fact that the offending vehicle was duly insured with the answering respondent, however, is not denied and it is prayed that petition of the petitioner is liable to be dismissed and may kindly be dismissed at least against him.
5 After the completion of pleadings, following issues were framed on 18.05.2007:
i Whether Gauri Shankar, Narender Kumar, Smt. Veena Gupta, Rakhi Gupta, Sangita Sharma, and Akansha received injuries due to rash and negligent driving of the tempo no UP85M9242?
ii Whether the petitioners are entitled for any compensation, if so, from whom and of what amount?
iii Relief. 6 After the framing up of issues parties were directed to lead evidence to prove
their respective contentions/pleas. Accordingly, the petitioner has examined himself as PW1, PW2 Ms. Rakhi Gupta, the daughter of the petitioner, who was sitting in the same car i.e. victim vehicle whose petition has already been settled in the Lok Adalat, PW3 Sh. K.V. Singh, Medical Record Clerk, Hindu Rao Hospital, PW4 Dr. Rajinder GAURI SHANKAR VS. JAGDISH SINGH & ORS.5/12
Kumar, Sr. Consultant Department of Orthopedics, St. Stephen Hospital, Delhi, who has proved the medical record with respect to the treatment taken by the injured/petitioner at St. Stephen Hospital and PW5 Dr. Amit Pankaj, Associate Professor, Orthopedics, G.T.B. Hospital, Delhi, who has proved the disability certificate. The opportunity thereafter was given to the respondents to lead their evidence, but they have not led any evidence and the respondent's evidence was ultimately closed vide order dated 24.02.2011.
7 I have heard the arguments and perused the record. My issuewise findings are as follows: ISSUE NO.1:
8 The onus of this issue was upon the petitioners and they had to prove that Gauri Shankar, Narender Kumar, Smt. Veena Gupta, Rakhi Gupta, Sangita Sharma, and Akansha received injuries due to rash and negligent driving of the tempo no UP85 M9242.
9 This issue is with respect to the injury suffered by the present petitioner and other copassengers namely Narender Kumar, Smt. Veena Gupta, Rakhi Gupta, Sangita Sharma, and Akansha but the present petition relates to Sh. Gauri Shankar and to prove the fact that he suffered injuries, he has filed the documents with respect to his admission and treatment taken by him in the hospital. The accident otherwise is not denied. The defence of the respondent no. 1 was only that the rash and negligent driving was on the part of the driver of the said car and not of the respondent no. 1. I have perused the certified copy of the Charge Sheet as filed by the petitioner which is filed against the respondent no. 1. The respondent no. 1 has not disputed the pendency GAURI SHANKAR VS. JAGDISH SINGH & ORS.6/12
of the criminal case under section 227/338 IPC against him and the he even has not cross examined the PW1 and 2 who are eye witnesses and injured. Therefore, medical record speaks that the injured/petitioner has suffered grievous injuries/disability and filing of Charge Sheet against the respondent no. 1 proves that he was driving the offending vehicle in rash and negligent manner. Even otherwise the standard of proof which is required to be proved in the court of Ld. Magistrate where a full trial under section 279/304A IPC has to be under taken is on much stricter side whereas standard of proof in an enquiry under M.V. Act is not so strict and here only prima facie view of the negligence aspect is to be seen. and therefore, it is held that Gauri Shankar received injuries due to rash and negligent driving of the tempo no UP85M9242. This issue is decided accordingly in favour of the petitioner. ISSUE NO. 2:
10 The onus of this issue was also upon the petitioner that he had to prove that he is entitled for compensation, if so, from whom and of what amount. 11 Since the court has already held herein above that the petitioner has suffered injuries on his person due to the rash and negligent driving of the respondent no. 1, therefore, he is entitled for compensation.
12 How much compensation the petitioner is entitled to and from whom, are the facts which have to be discussed in view of the facts which have come on record. The law by now is well settled. The compensation depends upon various facts i.e. age of the injured, income of the injured, his loss towards earning capacity because of such incapacity to work, his liability towards the pecuniary loss which the family would have suffered and apart from that he may also be entitled for nonpecuniary GAURI SHANKAR VS. JAGDISH SINGH & ORS.7/12
compensation in the shape of mental pain and agony and loss of limb or loss of enjoyment of future life.
13 In this matter the petitioner has suffered disability and therefore, functional loss has to be calculated keeping in view the multiplier as well as the income of the injured.
14 Now coming to the multiplier aspect. The age of the petitioner is stated to be 57 years. There is no other document on record. However, his age on the medical prescriptions is written as 58 years. In these circumstances, the same is taken to his age and the relevant multiplier on the date of accident, therefore, would be 09. 15 Now coming to the income/salary of the injured. The injured has deposed that he was self employed and was earning Rs. 10,000/ per month but somehow he has not filed any document to prove his income. It is also not mentioned in the entire petition that whether he was having any educational qualification and if so upto what standard or whether he was a skilled person. In cross examination, he deposed that he does no have any document relating to his running shop at Kabool Nagar, Shahdara, Delhi. He volunteered that he has filed his income tax returns from this address by stating that his income is Rs. 10,000/ per month. However, he has not filed that income tax returns on court record and accordingly the petitioner has failed to prove that he was earning Rs. 10,000/ per month.
16 Accordingly, having no other evidence on court record, the court is presuming the income of the injured equal to the income of an unskilled person under Minimum Wages Act which was on the relevant time was Rs. 3,312/ per month. Since it is a case of disability, the court is not taking in account any future benefits to the petitioner GAURI SHANKAR VS. JAGDISH SINGH & ORS.
8/12nor is deducting anything with respect to his expenses to be incurred by him on himself and his actual age and actual income has to be taken on record. Therefore, his annual dependency allowance would be Rs. 39,744/ and since the multiplier is 09, the total dependency allowance would be Rs. 3,57,696/. This amount would have been payable to the injured if the petitioner would have lost his life but with the grace of the god, he has been saved and only had suffered permanent disability. 17 To prove the extent of disability the petitioner has examined PW5 who has deposed that he has brought the disability and has proved the disability certificate Ex.PW5/A and as per the same the petitioner has suffered permanent disability to the extent of 81% is with respect to both lower limbs. Keeping in view the settled provision of law this 81% of disability on the both lower limb has to be taken to the extent of 40.5% being 50% quo the whole body to be rounded of 41% and therefore, the allowance against the functional disability would come to Rs. 1,46,655.36/ (3,57,696 X 41%) to be rounded of Rs. 1,46,656/ i.e. 41% of the total dependency allowance. Further, the petitioner has deposed that he has spent an amount of Rs. 3 lacs on his treatment. However, he has tendered the bills worth Rs. 2,28,238/. The major amount is with respect to bill no. 93 worth Rs. 1,34,700/ which is of hip replacement and there are other bills filed PW3 and PW4 both have deposed that the petitioner was admitted in the hospital twice and the petitioner also examined witness from Hindu Rao Hospital as well as witness from St. Stephen Hospital. There appears to be reasonable proximity in between the injuries suffered and treatment taken as well as the time/duration during which the injured remained in the hospital. Therefore, petitioners is entitled for medical expenses of Rs. 2,28,238/ .
GAURI SHANKAR VS. JAGDISH SINGH & ORS.
9/1218 Apart from this keeping in view the nature of injury, the court presumes that the petitioner would not have been able to attend his duties at least for about 6 months and therefore, he is entitled for 6 months salary towards loss of income which come to Rs. 19,872/.
19 Apart from that, he is also entitled for non pecuniary damages as follows:
NON PECUNIARY DAMAGES:
i. towards special diet : Rs. 15,000/ ii. towards conveyance allowance : Rs. 15,000/ iii. towards mental pain, agony, loss of amenities
of life, happiness, frustration towards disfigurement and enjoyment of life keeping in view the age of injured: Rs. 1,00,000/ PECUNIARY DAMAGES:
i towards functional disability : Rs. 1,46,656/
ii Towards medical expense : Rs. 2,28,238/
iii Towards not being able to do his duties
for 6 months : Rs. 19,872/
20 The petitioner has claimed that he has spent Rs. 50,000/ on the physiotherapy.
However, there is no document to prove this fact on court record. Therefore, he is not entitled for the same. The petitioner has also claimed an amount of Rs. 2,000/ per month upto 1.01.2008 towards service of one attendant Sh. Amit Jain. However, the status of Sh. Amit Jain has not been explained and the petitioner has also not filed any documentary proof that Sh. Amit Jain ever work for his attendant. Therefore, he is not entitled to any amount towards attendant allowance. The petitioner has also claimed that the doctors have advised him for another surgery which is likely to cost of Rs. 2.5 GAURI SHANKAR VS. JAGDISH SINGH & ORS.10/12
lacs regarding change of hip joint. However, there is no document to that effect on court record. Therefore, the petitioner is also not entitled for the same. Accordingly, the petitioner is entitled to an amount of compensation to the extent of Rs. 5,24,766/ (Rs.15,000/ + Rs.15,000/ + Rs. 1,00,000/ + Rs. 1,46,656/ + Rs. 2,28,238 / + Rs. 19,872/). Although the petitioner has claimed a compensation of Rs. 5 lacs with interest but keeping in view all the discussion arising out of the facts and the evidence led by the petitioner, the court is of the opinion that granting of compensation more than the amount claimed by the petitioner is 'just compensation' under section 166 of the Motor Vehicle Act and no way can be termed as an excessive. LIABILITY:
22 Now coming to the next aspect i.e. as to who is liable to pay the compensation to the petitioner. It is not disputed that vehicle of respondent no. 1 was duly insured with respondent no. 2 and this fact otherwise has been admitted by respondent no. 2.
Although the liability of both the respondents is jointly and severally yet the liability of respondent no. 2 would remain primary.
RELIEF: 23 The respondent no. 2 is accordingly directed to pay the compensation of Rs. 5,24,766/ along with interest @ 8% per annum from the date of filing of the petition till the date of depositing the cheque in the bank, except for the period which is specifically excluded by the court and subject to adjustment of the amount paid towards interim award and interest, if any. The respondent no. 2 is further directed to deposit the amount of compensation by way of cheque after calculation within a period of one month of the award.
GAURI SHANKAR VS. JAGDISH SINGH & ORS.
11/1224 Petitioner is directed to open his individual saving bank account in his name either in UCO Bank or at SBI whichever is nearest to his residence and 50% of the amount of compensation shall be deposited by him as an FDR for a period of 5 years and 50% of the amount of compensation shall be credited in his saving bank account. The bank concerned is directed that interest on FDR shall be paid monthly to the petitioner.
25 In view of the judgment of own High Court, the following directions are also issued to Bank.
i Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original passbook shall be given to the claimant alongwith the photocopy of the FDR.
ii The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
iii Photo Identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the Identity Card of the claimant. iv No cheque book shall be issued to the claimant without permission of the court. v No loan advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
vi The claimant can operate the saving bank account from the nearest branch of UCO bank or SBI and on the request of the claimant, the bank shall provide the said facility.
26 A copy of this award be given dasti to the petitioner and to the Insurance Company/respondent no. 2 and one copy be sent to Bank Manager Concerned where GAURI SHANKAR VS. JAGDISH SINGH & ORS.
12/12the account would be opened & one copy be given to the petitioner free of cost. 27 File be consigned to the Record Room.
ANNOUNCED IN OPEN COURT (S.S. MALHOTRA)
ON 7th JULY 2011 ADDL. DISTRICT JUDGE/
POMACT/KARKARDOOMA
COURT/DELHI
GAURI SHANKAR VS. JAGDISH SINGH & ORS.