Delhi District Court
Gulab Singh Son Of Sh. Karan Singh vs Satpal S/O Daya Nand on 14 February, 2014
1
IN THE COURT OF MS. PREETI AGRAWAL GUPTA:
ADJCUMJUDGE MACT(NORTH): ROHINI: DELHI
Case No. 80/09
Unique Case ID No. 02404C0436142007.
Gulab Singh son of Sh. Karan Singh
Resident of H.No. 84, Village Safiyabad,Pana
Papshiyan, Tehsil & District Sonepat, Haryana
....Petitioner
Versus
1. Satpal S/O Daya Nand
Resident of 1056B, Pana Paposian
Narela, Delhi110040.
2. Ram Niwas S/O Suraj Mal
R/o 490, Pana Udyan,
Narela,Delhi110040.
3. The New India Assurance Company Ltd.
At: A2/3, Lusa Tower, Azadpur, Delhi33.
....Respondents
DATE OF INSTITUTION : 17.08.2007: JUDGMENT RESERVED ON : 04.02.2014: DATE OF JUDGMENT: 14.02.2014: AWARD:
1. The petitioner has filed the present claim petition by way of the present petition under Section 166 and 140 of the Motor Vehicle Act seeking compensation for permanent Case No. 80/09 Gulab Singh Vs. Satpal etc. 2 disability caused by the accidental injuries sustained by the petitioner. It is the case of the petitioner that on 14.07.2007 at about 8.30 p.m., on main road Narela, near Narela Singhu Border Delhi, he was going on his motorcycle no. DL8S Q8938 alongwith his two friends, when the alleged offending bus bearing no. DLIPB5472, being driven by respondent no. 1 came at a fast speed and in a rash and negligent manner and hit their motorcycle which was driven by petitioner.
2. It is the case of the petitioner that as a result of forceful impact, all the occupants of the motorcycle in question including the petitioner fell down on the road and received serious/grievous injuries all over the body. It is averred that in this accident, he sustained fractures of both bones of right leg, fracture of right knee cap, fracture of right arm and crush injuries on right hand and wrist, with bleeding wounds over nose and on left eyebrow besides abrasion over the body. It is further averred that after the accident, offending bus was stopped and he was removed to Satyawadi Raja Harish Chander Hospital, where first aid was given and thereafter, the petitioner was shifted to LNJP hospital where he remained admitted from 15.07.07 to 28.07.07. During hospitalization, an operation was done on Case No. 80/09 Gulab Singh Vs. Satpal etc. 3 his body to fix the fractures. K wire was also fixed and then plaster was applied. After discharge from the hospital, his treatment continued as outdoor patient till Jan.2008 and during that period, stitches were removed and dressings were done. His treatment continued for about 8 months. It is further the case of the petitioner that due to the accident, petitioner sustained grievous injuries resulting in permanent disability as he could not move without the help of others. It is claimed that he incurred expenses of about Rs 35,000/ on his treatment. The FIR No.388/2007 under Section 279/337 IPC at PS Narela was registered against the driver/respondent No.1, and the driver was arrested. Subsequently, the driver/ respondent no. 1 has been charge sheeted U/s 279/338 IPC in respect of road accident in question. It is the case of the petitioner that the offending bus was being driven by respondent No. 1 at a very high speed in a rash, negligent and reckless manner, as a result of which, it hit the petitioner causing him to fall down on the road thereby sustaining grievous injuries resulting in permanent disability.
3. The petitioner was 32 years of age at the time of accident. It is the case before the court that the petitioner suffered multiple and grievous injuries due to the road Case No. 80/09 Gulab Singh Vs. Satpal etc. 4 accident and underwent prolonged treatment incurring a huge medical expenditure. The petitioner has claimed that he was an expert tailor and was operating his own shop and was earning Rs. 6,000/ per month but due to the accident in question, he is unable to do any work and has suffered loss of income @ Rs. 6,000/ per month. It is averred that the petitioner has suffered mentally, physically as well as financially and has prayed for compensation for the permanent disability, pain and agony, conveyance, special diet and loss of income, etc. claim of Rs.5,00,000/ is claimed by the petitioner.
4. The respondent No.1 is the driver and the respondent No.2 is the owner of the offending vehicle/bus bearing no. DLIPB5472. They filed their joint written statement denying the occurrence of the very accident in question due to rash and negligent driving of respondent no. 1. It is, however, admitted that the respondent No.1 is the driver and the respondent No.2 is the owner of the offending vehicle, which is stated to have been insured with respondent No. 3/Insurance company for the relevant period of the accident. It is denied that the petitioner is entitled to get any compensation from the respondents as there were three persons on the motorcycle on which the petitioner/injured Case No. 80/09 Gulab Singh Vs. Satpal etc. 5 was pillion rider. It is further averred that the respondent no. 1 & 2 have been falsely implicated in this case just to extort money from them. The respondent no. 1 & 2 have alleged that accident was caused due to rash and negligent driving of the motorcycle rider as it is the driver of the motorcycle who had not seen the stationary bus and collided with it.
5. The respondent No.3/Insurance Company filed written statement taking preliminary objection that it had no liability, in case of any statutory breach. It has denied its liability to pay any compensation on the ground of contributory /composite negligence at the ends of petitioner. It is, however, not denied that the offending vehicle was duly insured with it, as on the date of accident. The claim of the petitioner has been denied and its own liability has also been denied.
6. From the pleadings of the parties, following issues were framed vide order dated 13.05.08:
1. Whether on 14.07.07 at about 8.30p.m. on main road Narela, motorcycle no. DL8SQ8938 on which petitioner was riding was hit by bus no. DLIPB5472 which was being driven in a rash and negligent manner and caused injuries to petitioner?OPP.
Case No. 80/09 Gulab Singh Vs. Satpal etc. 6
2. Whether the motorcycle was being driven rashly and negligently,if so, its effect?OPR.
3. Whether motorcyclist tried to overtake the tractor trolly and hit the offending vehicle which was stationary? OPR
4. Whether R1 held valid and effective DL?OPR 1 & 2.
5. Whether petitioner is entitled to compensation, if so, to what amount and from whom?OPP.
6. Relief.
7. The petitioner/injured appeared as PW1 and tendered his affidavit in evidence vide Ex. PW1/A. PW1 has proved medical treatment record and expenses incurred vide medical bills which are exhibited as as Ex. PG1 to Ex. PG23. PW1 also tendered permanent Disability Certificate Ex. PG24, copy of voter card Ex. PG 25 and certified copy of MLC as Ex. PG26. The witness has been crossexamined by counsel for respondents no. 1 & 2. PW1 has deposed, in crossexamination, that he was driving motorcycle callibar Bajaj bearing no. DL8SQ8938 and he was not under the influence of liquor at the time of driving. During cross examination, PW1 has deposed that he was coming from Singhu Border on his motorcycle alongwith his two other friends and he was having his driving licence. PW1 has categorically denied the suggestion that the offending bus Case No. 80/09 Gulab Singh Vs. Satpal etc. 7 bearing no. DLIPB5472 was stationary. PW1 has also denied the suggestion that he over the tractor trolley and struck against the back side of the bus. PW1 has deposed that he does not know who had taken him to hospital as after the accident, he was unconscious. PW1 has deposed that he had taken treatment from LNJP hospital. The petitioner denied the suggestion that he that he has filed a false case to implicate the respondents.
8. PW2 Suresh Kumar, record clerk from Satyawadi Raja Harishchander Hospital, Narela has been examined. PW2 has produced the summoned record and tendered the MLC No. 521/07 dated 14.07.07 of patient Gulab Singh/petitioner which is proved as Ex. PW2/A. In crossexamination, PW2 has deposed that patient was discharged on the same day from the hospital and that he was not aware of the extent of injuries suffered by the patient /petitioner.
9. PW3 Balbir Singh, Record clerk, LNJP Hospital has also been examined who produced the complete case sheet of admission of patient Gulab Singh/petitioner. PW3 deposed, as per record, that the petitioner remained hospitalised in LNJP hospital from 15.07.07 to 28.07.07 vide CR No. 660055 which is proved vide certified copy Ex.PW3/A. In crossexamination, PW3 admitted that he has Case No. 80/09 Gulab Singh Vs. Satpal etc. 8 no personal knowledge about the case.
10. Record Clerk Govind Ram, from General Hospital, Sonepat, Haryana has been examined as PW4 . PW4 has proved the handicapped certificate record of patient Gulab Singh issued by General Hospital, Sonepat, Haryana as Ex.PW4/A. PW4 has been crossexamined by ld. Counsel for respondent no. 3/insurance company. PW4 has testified in crossexamination that he has no personal knowledge about the nature of disability and denied the suggestion that the certificate Ex.PW4/A does not pertain to any government hospital.
11. PW5 Dr. S.P. Sharma, Orthopaedic Surgeon, Civil Hospital is the medical witness from the Disability Board who has been examined in respect of disability certificate already exhibited as Ex. PG24 and duly identified his own signatures at Mark "A". PW5 has testified in support of issuance of permanent disability certificate in relation to fracture to malunited fracture of lower end radius of right Tibia with stiffness of right wrist with malunited fracture of right Tibia with stiffness of right knee. In cross examination, PW5 has deposed that treatment of patient was not done by him that only disability certificate was issued by him. PW5 has expressed his inability to say that Case No. 80/09 Gulab Singh Vs. Satpal etc. 9 disability was related to the accident or not.
12. The petitioner's evidence was closed after examining 5 witnesses hereinabove details. Subsequently, during course of hearing, the court directed to reexamine the petitioner for assessment of his permanent disability as insurance company had put at a serious dispute regarding the reliability of disability assessment by outstation Medical Board. Hence, on court directions, the petitioner was examined by the Medical Board of BSA Hospital.
13. PW6 Dr. Amreshwar Narain, Addl. Medical Sudpt., BSA Hospital has as appeared as medical expert witness and has duly proved permanent disability certificate which is exhibited as Ex.PW6/1 and duly identified his own signatures at point "A", as the member of medical board. PW6 identified the photograph at point "C" and signatures of petitioner at point "B" with 43 % permanent physical disability in relation to right upper and lower limb. In cross examination, doctor/witness has testified that physical disability assessment of the patient is in respect of right lower limb as per the guidelines of social welfare deptt. issued from time of time. The doctor, however, expressed his inability to ascertain the whole body disability in absence of guiding parameters.
Case No. 80/09 Gulab Singh Vs. Satpal etc. 10 14 . On the court query, PW6 has duly explained that the extent of permanent liability was opined in respect of lower right limb of the petitioner and not on the basis of functional capacity. The medical expert further explained that the petitioner was capable of lifting light weight with his right upper limb but has difficulty in folding hands. It was further testified that the the petitioner was able to perform all normal functions of lifting light weight objects with his left arm and was capable of walking , climbing, running, kneeling down, sitting on the floor with his right lower limb but requires support to stand upon the affected leg and also had difficulty in squatting without support.
15. No further witness in support of petitioner's case. The petitioner's evidence was thereafter closed. The insurance company has not examined any witness to show any breach or violation of the terms and conditions of the insurance policy.
16. The court has duly heard the Ld. Counsels for the petitioner and respondents and has also duly appreciated the pleadings and material on record along with the evidence tendered before the court. The court has also considered at length the applicable legal provisions and judicial precedents of Hon'ble Superior Courts applicable to the facts of the Case No. 80/09 Gulab Singh Vs. Satpal etc. 11 present case.
17. The issues are accordingly, determined as under:
18. There are three issues that have arise from the pleadings on the aspect of occurrence of the accident. Issues no.1 to 3 pertain to the facts of the occurrence of the accident. The onus to prove issue no. 1 is upon the petitioner and onus to prove issues no. 2 & 3 is upon the respondents. However, the consideration of the issues is based upon the facts which are intrinsically connected and can not be determined independent of the finding on the other issues. Therefore, for the sake of convenience, in order to bring clarity of discussion and to avoid unnecessary repetition these three issues no. 1 to 3 shall be jointly determined as under: ISSUES NO 1 to 3:
1. Whether on 14.07.07 at about 8.30p.m. on main road Narela, motorcycle no. DL8SQ8938 on which petitioner was riding was hit by bus no. DLIPB5472 which was being driven in a rash and negligent manner and caused injuries to petitioner?OPP.
2. Whether the motorcycle was being driven rashly and negligently,if so, its effect?OPR.
3. Whether motorcyclist tried to overtake the tractor trolley and hit the offending vehicle which was stationary? OPR Case No. 80/09 Gulab Singh Vs. Satpal etc. 12
19. According to the petitioner, the accident was caused by rash and negligent driving of respondent no. 1/driver of the offending bus bearing no. DLIPB5472. The petitioner has deposed as PW1 and has specifically identified the driver/respondent no. 1 as driver of the offending vehicle. The petitioner /injured in his examination in chief vide Ex.PW1/A and deposition before the court, has specifically testified that the respondent no. 1was driving the offending bus at an uncontrollable speed and hit the motorcycle on which the petitioner was driving with two pillion riders. It is the case of the petitioner that all the three persons on the motorcycle, sustained serious grievous injuries and that the very same alleged offending bus took the injured to Satyawadi Raja Harishchander Hospital. The other co injured coinjured/Dhanpat is the complainant of FIR bearing no.388/07 U/s 279/337 IPC PS Narela was registered on the same day of accident. As per FIR of the case, the petitioner/ Gulab Singh was driver of the motorcycle and there were two pillion rider namely Dhanpat and Ved Parkash on his motorcycle. It is the case of the petitioner that the petitioner was going on the motorcycle bearing no. DL8SQ8938 from Narela Singhu Border towards Narela when on reaching Neel Tara Form House, the offending bus Case No. 80/09 Gulab Singh Vs. Satpal etc. 13 bearing no. DLIPB5472 came from opposite side at a very high speed, being driven by its driver who is respondent no. 1 causing all the occupants of the accident to fall. The offending vehicle bus bearing no. DLIPB5472 was found in accidental condition outside from Satyawadi Raja Harishchander Hospital from where it was seized by the police. The motorcycle of the petitioner was found at the accident spot in accidental condition from where it was seized by the police. The mechanical inspection of the offending bus was conducted and the vehicle was found fit for road test. The driver/respondent no. 1 has been arrested by the IO. His driver licence was also seized. The testimony of the petitioner and material on record is consistent and corroborated the averments in the claim petition.
20. On the aspect of "rash and negligent driving" law has been well settled in this regard. The Hon'ble High Court of Delhi in National Insurance Company Ltd. Vs. Gita Bindal & Ors. in MAC APP. No. 179/2004 vide judgment dt. 12.10.2012 has passed binding guidelines on the principle of "Doctrine of Res Ipsa Loquitur". The Hon'ble High Court of Delhi have been pleased to discuss the law of Res Ipsa Loquitur and has been pleased to summarize the principles.
Case No. 80/09 Gulab Singh Vs. Satpal etc. 14 It has been held that "Res ipsa Loquitur means that the accident speaks for itself. In such cases, it is sufficient for the plaintiff to prove the accident and nothing more". ...
It has been further laid down that"Res ipsa Loquitur is an exception to the normal rule that mere happening of an accident is no evidence of negligence on the part of the driver. This maxim means the mere proof of accident raises the presumption of negligence unless rebutted by the wrongdoer." ...
It has been further observed that"in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him, but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident, but can not prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of res ipsa loquitur is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more."....
It has been further appreciated that"the effect of doctrine of 'res ipsa loquitur' is to shift the onus to the defendant in the sense that the doctrine continues to operate Case No. 80/09 Gulab Singh Vs. Satpal etc. 15 unless the defendant calls credible evidence which explains how the accident of mishap may have occurred without negligence, and it seems that the operation of the rule is not displaced merely by expert evidence showing, theoretically, possible ways in which the accident might have happened without the defendant's negligence. The doctrine of 'res ipsa loquitur, therefore, plays a very significant role in the law of tort and it is not the relic of the past, but the living force of the day in determining the tortuous liability."
The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it, even when the fact bearing in the matter are at the outset unknown to him and often within the knowledge of the defendant.
21. The onus to prove issue no. 1 in discussion, is upon the petitioner who is required to discharge the onus by proving that the offending bus in question was being driven rashly and negligently, hit the motorcycle which was driven by the petitioner, thereby causing him injuries. As has been discussed hereinabove, Doctrine of "Res Ipsa Loquitur"
requires the examination of case of the petitioner for the purpose of appreciating if the petitioner/injured has proved Case No. 80/09 Gulab Singh Vs. Satpal etc. 16 the occurrence of accident. Once the petitioner is able to reasonably proved before the court about how the accident happened, then the very nature of occurrence of the accident will speak for itself , so as to determine if the case is made out to raise a presumption of negligence against the offending vehicle or not. The averments in the petition and the deposition of the petitioner in Ex.PW1/A is unbreached and uncontroverted on the aspect of the occurrence of the accident and the involvement of the offending bus which hit the petitioner. FIR No. 388/07 IPC, U/s 279/338 IPC, PS Narela was registered in respect of the accident in question in which respondent no. 1/driver is the accused. The offending vehicle which is a bus bearing no. DLIPB5472 was seized from outside the Satyawadi Raja Harishchander Hospital from where the petitioner was taken alongwith other injured person by the very same offending bus after the occurrence of the accident. The offending bus was found to be mechanically fit for plying on record. It is the admitted case of the respondents that respondent no. 1 was the driver of the offending bus in question at the time of accident. There is nothing on record whether in evidence or otherwise to disbelieve the testimony of PW1 who is the petitioner/injured himself. The appreciation of entire material Case No. 80/09 Gulab Singh Vs. Satpal etc. 17 of criminal investigation record has been tendered by PW1 which includes the copy of charge sheet as against respondent no. 1 U/s 279/338 IPC which is the copy of FIR, site plan, seizure memo of the offending vehicle and motorcycle, mechanical inspection report. The medical treatment record is tendered as PG1 to PG23 and the MLC of the petitioner Ex. PG26. The testimony of the petitioner/himself as PW1 duly establishes the factum and manner of occurrence of the accident in question. It is evidently established on record that the accident in question was caused by the offending bus which was being driven by respondent no. 1 in a rash and negligent manner thereby causing the road accident on 14.07.2007 at about 8.30 p.m., on main road Narela, near Narela Singhu Border Delhi within the jurisdiction of PS Narela thereby causing injuries upon the petitioner of the grievous nature and permanent disability and also injuring the other two occupants of the same motorcycle in question. The issue no. 1 is decided in favour of the petitioner and against the respondents.
22. As regards issues no. 2 & 3 in discussion, the defence taken by the respondents no. 1 & 2 is that the petitioner is not entitled to get any compensation from the respondents as there were three persons on the motorcycle Case No. 80/09 Gulab Singh Vs. Satpal etc. 18 driven by the petitioner/injured whereas according to rules, only one person is allowed alongwith a rider. The respondent no. 1 & 2 have alleged that accident was caused due to rash and negligent driving of the motorcycle rider/petitioner as he had not seen the stationary bus, thereby hit the stationary bus thereby causing the accident.
23. The discussion involves two aspects:
i) It is to be examined if the motorcycle in question was being driven rashly and negligently. It is to be seen if the respondents have been able to show that the accident occurred due to rash and negligent driving of the motorcycle driver/petitioner and it also needs to be examined that if the mere fact of triple riding of the motorcycle in question would suffice, to assume contributory /composite negligence upon the petitioner.
ii) It is be examined if the respondents have brought forth any evidence to support their allegations that the motorcyclist hit the offending bus when it was stationary and that it was trying to overtake a tractor trolley, as alleged.
24. The respondents have failed to lead any respondent's evidence despite opportunity, in order to prove the defence putforth by them. As discussed hereinabove, Case No. 80/09 Gulab Singh Vs. Satpal etc. 19 the effect of "Doctrine of Res Ipsa Loquitur" shifts the onus from the respondents to lead credible evidence to show that the accident occurred without any negligence of the offending vehicle or that it occurred due to reason of rash and negligence act/driving of the petitioner himself. Since, the respondents have not led any respondent's evidence, it shall be relevant to consider the crossexamination of the petitioner/PW1 himself as all other five petitioner's witness pertain to the record of treatment of the petitioner. In cross examination, PW1 has categorically denied that the motorcyclist was trying to overtake any vehicle or that there was any tractor trolley. There is no other evidence or suggestion which could bring forth any contradiction or inconsistency in the testimony of PW1 in regard to the occurrence of the accident. The respondents have failed to discharge the onus laid upon them, by law to suggesting their defence that the motorcycle hit the stationary bus or that the motorcycle in question trying to overtake any other vehicle rashly and negligently.
25. During the course of arguments, ld. Counsel for insurance company has contended that the motorcycle in question was carrying two pillion riders and that the very fact was in itself tentamount but contributory negligence Case No. 80/09 Gulab Singh Vs. Satpal etc. 20 on the part of the motorcylist. After going through the legal position, the authority of Hon'ble High Court of Delhi in MAC APP. NO. 97/2012 in case titled as 'Darwan Singh Aswal & Ors. Vs. The United India Insurance Company Ltd.& Ors.' , is binding upon this court wherein it has been laid down that:
" Triple riding on a two wheeler is in contravention of the provisions of the Motor Vehicle Act, 1988 (the Act). Appropriate punishment is provided for triple riding on a two wheeler under Section 128 read with section 177 of the Act. However, there is no persons are riding on a two wheeler. The negligence has to be established as a fact. In the instant the two eye witnesses produced by the Appellants. The Claims Tribunal in cross examination on record simply on the ground that three persons were riding on the two wheeler concluded that there was contributory negligence. The conclusion of contributory negligence, therefore, cannot be sustained."
The above cited authority is exactly applicable to the facts of the present case. Since the respondents have failed to establish negligence upon the petitioner or upon the motorcyclist, the mere fact of triple riding on Case No. 80/09 Gulab Singh Vs. Satpal etc. 21 the motorcycle in question will not suffice the assumption of any contributory /composite negligence upon the petitioner.
26. In view of the aforesaid discussion, issue no.2 & issue no. 3 are decided in favour of the petitioner and against the respondents. Issues no. 1 to 3 are accordingly, disposed of in favour of the petitioners and against the respondents.
ISSUE NO. 4:
Whether R1 held valid and effective DL?OPR 1 & 2.
27. The onus to prove this issue is upon the respondents no. 1 & 2. As per statutory requirement, the insurance company/respondent no. 3 is liable to 'the third persons' for any liability arising due to this MACT claim and the only exception to this statutory obligation is by way of any legal breach in the terms and conditions of the insurance policy which may allow the insurance company to take recourse to Section 149 (2) of Motor Vehicle Act. During investigation, the driving licence of respondent no. 1 has been seized and tendered as vide testimony of PW1. As per record, respondent no. 1 was having a valid and effective driving licence of the appropriate category, as on the date of accident. The insurance company has not proved any Case No. 80/09 Gulab Singh Vs. Satpal etc. 22 statutory exclusion to get absolved from its liability to pay the compensation, as per this award in favour of the petitioner. The statutory liability shall, therefore, lie upon insurance company to pay the compensation to the petitioner. The issue is accordingly, disposed of in favour of respondents no. 1 & 2 and against the insurance company. ISSUE NO. 5:
Whether petitioner is entitled to compensation if so, to what extent and from which of the respondents? OPP
28. The court is now to decide on quantum of compensation i.e. payable to the petitioner and is to ascertain and decide such compensation that is just and reasonable in the facts and circumstances of the case.
29. The guiding principles for assessment of "just and reasonable compensation" in injury cases has been laid down by Hon'ble Delhi High Court, in III (2007), ACC 676 titled as Oriental Insurance Co,. Ltd., Vs. Vijay Kumar Mittal & Ors that: " The possession of one's own body is the first and most valuable all human rights and while awarding compensation for bodily injuries this primary element is to be kept in mind. Bodily injury is to be treated and varies on account of gravity of bodily injury.
Case No. 80/09 Gulab Singh Vs. Satpal etc. 23 Though it is impossible to equate money with human suffering, agony and personal deprivation, the Court and Tribunal should make an honest and serious attempt to award damages so far as money can compensate the loss. Regard must be given to the gravity and degree of deprivation as well as the degree of awareness of the deprivation. Damages awarded in personal injury cases must be substantial and not token damages".
30. It has been further held by the Hon'ble High Court that:
"the general principle which should govern the assessment of damages in persons injury cases is that the Court should award to injured persons such a sum as will put him in the same position as he would have been in the same position as he would have been in if he had not sustained injuries".
31. In the road accident in question, in the facts of the case, the petitioner has suffered permanent physical disability in respect of his right upper and lower limb, as per permanent disability assessment by the medical board of duly competent Government hospital which is Baba Saheb Ambedkar hospital. In this regard, PW6, the medical witness /orthopaedic doctor has been examined before the court as he was a chair person of the medical board and he has testified that the injured/petitioner has been opined as "post Case No. 80/09 Gulab Singh Vs. Satpal etc. 24 traumatic stiffness of right knee, ankle and right wrist with limb length difference in right lower limb with 43 % permanent physical disability in relation to right upper and lower limbs." PW6 has been crossexamined the as the medical expert in regard to the assessment based on functional capacity of the petitioner and in regard to disability of the petitioner in relation to whole body. PW6/ medical member of the disability board has explained that the assessment of permanent disability of an individual is done as per the guidelines issued by the social welfare deptt., from time of time and that there were no parameters/guidelines for assessment of permanent disability of whole body. PW6 explained that the petitioner had difficulty in folding hands and standing with weight on the affected leg, without support. However, the petitioner was able to perform all normal functions of lifting light weight objects with his left arm and was capable of walking , climbing, running, kneeling down, sitting on the floor and standing on both legs without support.
32. This court is to decide and ascertain the effect of permanent disability on the actual earning capacity of the petitioner. It is also to be examined, if the petitioner has suffered functional disability due to the injuries sustained in Case No. 80/09 Gulab Singh Vs. Satpal etc. 25 the road accident in question to the extent thereof. Admittedly, the medical opinion in respect of medical disability of the petitioner does not refer to "whole body disablement" and also does not take into account loss of earning capacity of an individual. The Hon'ble Apex Court in Raj Kumar Vs.Ajay Kumar & Anr. 2011, ACJ, 1 SC and has laid down binding guidelines for ascertainment of the effect of the permanent disability on the actual earning capacity of an individual. The court has taken into account the guidelines applicable in the facts of the present case. The petitioner has claimed that he was running a tailor shop and was self employed as a tailor and earning Rs.6,000/ per month out of the said work. As such, no documents or material has been put forth in respect of the work, employment or nature of engagement of the petitioner. Nevertheless, PW1 has duly supported the averments of the petition in respect of nature of his work for gain as self employed. There is no material contradiction in the case of the petitioner whereby the averments in the petition are duly supported by his own unbreached testimony in this regard. However, there is no evidence, on behalf of the petitioner, to show that he had been rendered in capable of continuing the same nature of work which he was engaged with or to show Case No. 80/09 Gulab Singh Vs. Satpal etc. 26 that he has been incurring extra expenditure of employing some other expert to run his tailor shop.
33. As regards the functional capacity, the petitioner has been rendered permanently disabled posttrauma stiffness in his right upper limb and right lower limb, due to which the petitioner has difficulty in picking up heavy weight objects and in folding hands as well as difficulty in standing with weight on his right lower limb. The petitioner is capable of carrying out, all normal functions of body required for leading a normal life and for making necessary efforts for making an earning for living. Appreciation of record reveals that the petitioner was aged 32 years at the time of accident. His age is not disputed and stands duly supported by material on record. It is not established that the petitioner has suffered relative loss of employment/loss of earning, to the extent or more than, the assessed permanent disability of 43 % in relation to his right upper and lower limb. Looking into the nature of work for gain of tailor self employed shop, in which the petitioner was engaged at the time of accident, it shall be appropriate and reasonable to hold that the petitioner has definitely suffered loss of earning capacity which he would have earned but for the accident. Therefore, court deems it appropriate and Case No. 80/09 Gulab Singh Vs. Satpal etc. 27 reasonable to assess that the petitioner has suffered loss of earning capacity of 25 %. Loss of earning capacity is accordingly, assessed at 25 %.
34. The petitioner has failed to prove the regular income of Rs. 6,000/ per month while running a tailor shop as claimed. He has also not proved any educational or vocational skills. However, since the petitioner is aged about 32 years, it shall be reasonable to assume that the petitioner was earning at the rate of minimum wages applicable to semiskilled worker @ Rs. 3,682/. The income of petitioner is, therefore, assessed at Rs. 3,682/ per month. The law of the land clearly lays down the principles of just and proper computation of compensation on account of loss of income after duly considering the future prospects of the deceased, as per the uniform multiplier schedule laid down in Sarla Verma's Case(Supra). In the present case, as afore discussed, the monthly income of the petitioner/disabled has been assessed at Rs. 3,682/ per month.
35. The Hon'ble High Court of Delhi has duly considered and appreciated the various relevant decisions of the Hon'ble Supreme Court of India and discussed the applicable aspects of law pertaining to "additions" in the minimum wages on account of inflation for computation of compensation in its Case No. 80/09 Gulab Singh Vs. Satpal etc. 28 detailed orders dated 19.03.2012, passed in considerable number of cases involving similar question of law alongwith MAC APP. No. 997/2011 in case titled Smt. Dhaneshwari & Anr. Vs. Tejeshwar Singh & Ors. It has been held that there shall be no addition in the minimum wages on account of inflation for computation of compensation.
36. It is further relevant to take into consideration the law laid down by Hon'ble Supreme Court in case titled Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., SLP (C) No. 8648 of 2007, wherein it has been held that the claimants shall be entitled to addition on account of future prospects depending upon the facts of each case. Uniform guidelines have been laid down for computation of addition on account of future prospects depending upon the age of the deceased/disabled and nature of employment of the victim. The law has been further developed in by Hon'ble Supreme Court in its latest judgment in Santosh Devi Vs. National Insurance company Ltd. and ors. in Civil Appeal NO.,. 3723 of 2012 arising out of SLP (C) No. 24489 of 2010. The Hon'ble Bench of Supreme Court has observed that aspect of future prospects shall be a relevant consideration in computation of just and proper compensation even in cases where the deceased was self employed or on a fixed salary without provisions for annual increments etc. The Hon'ble Supreme Court in Santosh Devi's case (Supra) allowed the addition of 30 % on Case No. 80/09 Gulab Singh Vs. Satpal etc. 29 account of future prospects in such cases.
37. The Hon'ble Supreme Court has been pleased to revisit the computation on account of future prospects, further developing the principle laid down in Santosh Devi's case ( Supra). The Hon'ble Apex Court has held in the latest binding law laid down by the Hon'ble Supreme Court in Rajesh & Ors. Vs. Rajbir Singh & Ors.; 2013 ( 6) SCALE ( pronounced by the Hon'ble Apex Court vide orders dt. April 12, 2013 ). "In the case of self employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects..... Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
38. This legal position has been appreciated and applied in various precedents by our own Hon'ble High Court of Delhi and hence is binding upon this Court. In the present case, as afore discussed, the monthly income of the petitioner has been assessed at Rs. 3,682/ per month. The petitioner was a young active person of 32 years of age at the time of the accident. The addition on account of future prospects shall be 50% of the income of the petitioner as the petitioner was having bright future prospects and was very young. Accordingly, the monthly income of the petitioner after accounting future prospects comes out to Rs. 5,523/ per month (Rs. 3,682/ + 50 % of Rs. Case No. 80/09 Gulab Singh Vs. Satpal etc. 30 3,682/).
39. The permanent disability is treated at par with the death in order to calculate the amount of compensation in accordance with the extent of disability qua the whole body. Accident took place on 14.07.2007. The age of the petitioner has been proved 32 years. Hence in view of the decision of Hon'ble Supreme Court given in Sarla Verma vs. DTC 2009 ACJ 1298, multiplier of 16 has to be applied to compute his loss of earning capacity. Hence the total loss of earning capacity comes to Rs. 2,65,104/ as per the formula Rs. 5,523/x12 x 16 x 25% ( after taking 25 % loss of functional capacity for earning). Accordingly petitioner is granted loss of earning capacity at Rs. 2,65,104 /.
40. As regards the period of loss of earning, the petitioner underwent hospitalization and suffered permanent disability of both right upper and lower limbs. It is claimed that the petitioner underwent treatment for about 4 months. In such nature of injuries, the petitioner would have not been able to restore himself and came to terms with reality of having suffered permanent disability for the rest of his life, it shall be just and proper to allow loss of income for a period of six months from the date of accident. The petitioner shall be entitled to loss of income during treatment for Rs. 22,092/ (Rs. 3,682 x 6).
41. The treatment of petitioner has been done at Lok Case No. 80/09 Gulab Singh Vs. Satpal etc. 31 Nayak Hospital, New Delhi. The medical treatment record Ex.PG1 to PG23 reveals that the petitioner incurred substantial medical expenditure but does not have supporting documents of more than Rs. 5,000/ approximately. At the stage of evidence, PW1 has deposed that due to this accident, he remained bed ridden for about 4 months and he had spent approximately Rs. 35,000/ on his treatment , medicines and physiotherapy sessions. Although, the petitioner has not been able to tender documentary evidence to show claimed medical expenditure, it is reasonable to allow an amount of Rs. 25,000/ against the expenditure on medical treatment as the same is not excessive. The petitioner is, therefore, entitled to a sum of Rs. 25,000/ towards medical expenses.
41. The petitioner has further claimed that he had spent Rs. 5,000/ on special diet and another sum of Rs. 5,000/ on conveyance expenses. Though, the quantum of ancillary expenses are not proved but looking into the nature of injuries, period of treatment and permanent disablement of the petitioner, it shall be reasonable and appropriate to allow the composite sum of Rs. 20,000/ for special diet, conveyance and ancillary expenses .
42. In view of the binding law of the land, the petitioner will still be entitled to nonpecuniary damages under the head of compensation of pain and suffering. Though, non pecuniary loss can not be assessed in terms of money, the Case No. 80/09 Gulab Singh Vs. Satpal etc. 32 petitioner is granted an amount of Rs. 50,000/ towards pain and suffering, inconvenience, mental shock and trauma as a consequences of injuries. It has been duly considered that the petitioner has suffered permanent disability of right lower and upper limbs, it shall be just and reasonable to allow the compensation of Rs. 50,000/. In the facts and circumstances, a consolidated sum of Rs. 50,000/ is granted towards damages owing to disability and loss of amenities.
43. Thus, the total compensation payable to petitioner is detailed as below:
Pecuniary Head:
1. Loss of earning capacity. Rs. 2,65,104/
2. Loss of income during treatment Rs. 22,092/ & during recovery period.
3. Medical expenses. Rs. 25,000/
4. Special diet , Conveyance & Attendant Charges Rs. 20,000/ NonPecuniary Head:
5. Pain and sufferings Rs. 50,000/
6. Loss of damages owing to disability & loss of amenities of life Rs. 50,000__ Total compensation Rs. 4,32,196/
44. So far as the liability to pay compensation is concerned, there is no defence of the insurance company to show any violation of terms and conditions of the insurance policy as discussed hereinabove discussed in issue no. 4. In these circumstances, respondent no.1 being the driver is primarily Case No. 80/09 Gulab Singh Vs. Satpal etc. 33 liable to pay the compensation. Respondent no. 2 and 3 being owner and insurer are vicariously liable to pay the compensation. Compensation is payable by respondent no. 3 being insurer, as vehicle was duly insured as on the date of accident. The issue is disposed of accordingly.
RELIEF:
45. In view of the afore given reasons and findings, the petitioner is entitled to compensation in the sum of Rs. 4,32,196/ along with interest @ 9 % per annum from the date of institution of present petition till its realization.
46. Out of the awarded amount, in terms of the guidelines issued by Hon'ble Supreme Court of India in "General Manager, Kerala State RTC Vs. Mrs. Susamma Thomas and others" for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation, the amount is to be disbursed in favour of the petitioner accordingly. Out of the awarded amount, 75% of the compensation along with proportionate interest shall be held in fixed deposits for a period of two, four, six, eight and ten years in equal proportions, in favour of the petitioner. Rest 25% along with proportionate interest be released to the petitioner.
47. The FDRs shall have no facility of loan or advance. Case No. 80/09 Gulab Singh Vs. Satpal etc. 34 Petitioner can withdraw the interest monthly/quarterly. The FDRs will not be encashed without permission of the court.
48. In view of the aforesaid findings and in terms of the award /order of this court, the petition is disposed off in aforesaid terms. Respondent no. 3/Insurance Company is directed to deposit the cheques in the name of the petitioner/claimant within 30 days before this Tribunal. Respondent No.3 is also directed to furnish certificate of TDS, if applicable. File be consigned to Record Room.
ANNOUNCED IN THE (PREETI AGRAWAL GUPTA)
OPEN COURT: JUDGE MACT: ROHINI (NORTH)
on 13th day of Feb. 2014. DELHI
Case No. 80/09 Gulab Singh Vs. Satpal etc.
35
Suit no. 80/09
14.02.2014:
Present: None.
Vide separate judgment, award is passed in favour of petitioner to a sum of Rs. 4,32,196/ as compensation along with interest @ 9 % per annum from the date of filing of present petition till its realization. Respondent no. 3/insurance company is directed to deposit the cheques in the name of the claimant within 30 days before this Tribunal. Petition is disposed off accordingly.
File be consigned to Record Room.
(PREETI AGRAWAL GUPTA) JUDGE, MACT (NORTH) ROHINI : DELHI Case No. 80/09 Gulab Singh Vs. Satpal etc.