Delhi District Court
Sh Kabir S/O Sh Tasobar vs Mohd Rasid S/O Mohd Anis Khan on 16 March, 2012
IN THE COURT OF SH PREM KUMAR BARTHWAL,
PO:MACT (SE01): SAKET COURTS: NEW DELHI
Suit No: 557/10
Unique Case ID: 02406C0336982010
Sh Kabir S/o Sh Tasobar,
R/o Village Taran, PS Joki Haat,
District Arariya, Bihar.
...........PETITIONER
VERSUS
1. Mohd Rasid S/o Mohd Anis Khan,
R/o Village and Post Office Bhawanipur,
District Badaun, PS Sesman, UP [Driver]
2. Sh Rahul Sudan S/o Sh Sudhir,
R/o 104B, DDA Flat, Sunlight ColonyII,
Ashram, New Delhi [Owner]
3. M/s ICICI Lombard General Insurance Company Limited,
th
5 Floor, Birla House, Connaught Place, New Delhi
Reg Office: Zenith House, Keshav Rao Khadke Marg,
Mahalaxmi, Mumbai [Insurer]
.........RESPONDENTS
Suit No. 557/10 Page 1 of 18
Date of Institution of claim petition: 29.09.2010 Date on which the Award/judgment reserved: 14.03.2012 Date on which the Award/judgment pronounced: 16.03.2012 A W A R D:
1. This petition under Section 166 of the Motor Vehicle Act 1988 was filed by the petitioner claiming compensation of Rs.5,45,000/ for the injuries suffered by him in a road vehicular accident which took place on 17.07.2010 involving vehicle bearing no. HR47A0975 driven by respondent no. 1, Mohd Rasid S/o Mohd Anis Khan under Nehru Place Flyover, Outer Ring Road, Kalkaji, New Delhi. A Detailed Accident Report (DAR) was also filed by the police in respect of this accident (FIR No 331/10, PS Kalkaji) and the said DAR was also clubbed with the present claim petition vide proceedings dated 29.09.2010.
2. The Respondents no. 1, 2 and 3 are respectively the driver, owner and insurer of the offending vehicle. The respondent no 1 and 2 have filed a joint written statement denying the claim of the petitioner. The respondent no 3/Insurance company has also filed its written Suit No. 557/10 Page 2 of 18 statement denying the claim of the petitioner but admitting that the Container bearing no. HR47A0975 was insured with it in the name of the respondent no. 2 vide policy no. 3003/A/54875262/01/000 valid for the period 03.09.2009 to 02.09.2010.
3. From the pleadings of the parties following issues were framed for consideration on 26.11.2010:
1. Whether the petitioner suffered injuries in an accident that took place on 17.07.2010 at about 04.30 Am due tot rash and negligent driving of vehicle bearing no. HR47A0975 driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
4. In order to prove his claim, the petitioner, Sh Kabir has got himself examined as PW1. The Ld counsel for the petitioner has closed evidence on behalf of the petitioner vide his statement recorded on 15.02.2012. The respondent no. 1, Mohd Rashid has got himself examined as R1W1 in his defence and the Ld counsel for the respondents No. 1 and 2 closed evidence on behalf of said respondents Suit No. 557/10 Page 3 of 18 vide his statement recorded on 02.03.2012. The Ld counsel for the respondent No. 3/Insurance company also closed evidence vide her statement recorded on 15.02.2012.
5. I have heard the Ld counsels for the parties and perused the testimonies of the witnesses filed on record. My findings to the issues are as under : ISSUE NO. 1:
6. Since the present petition is under Section 166 of M V Act, it was the bounden duty of the petitioner to prove that the respondent No. 1 was rash and negligent in driving the vehicle at the time of accident. In order to prove this issue, the Ld. counsel for the petitioner has relied upon the statement of PW1, Sh Kabir who has deposed that on 17.07.2010 at about 04.30 AM while he was sleeping on the foot path at Tikona Point, near Veer Savarkar Senior Secondary School, near Nehru Place Flyover then all of a sudden a container bearing no. HR47A0975 driven by respondent no. 1 at high speed and in a rash and negligent manner without following the traffic rules first hit a water tanker then a TSR and passed over both the legs of the petitioner resulting in multiple grievous injuries to him. This witness was cross Suit No. 557/10 Page 4 of 18 examined by the Ld counsels of R1 and R2 as well as R3/Insurance Company but nothing beneficial to the respondents has emerged nor any doubt to disbelieve his version regarding the manner in which the accident has taken place has emerged from the crossexamination of the said witness. The respondent no 1, Mohd Rashid S/o Mohd has got himself examined as R1W1 and has deposed that the accident had taken place due to negligence of the petitioner and a false case has been registered against him. However, during his crossexamination on 02.03.2012, the R1W1 has admitted that he is facing trial in the criminal case pertaining to FIR No. 331/10 PS Kalkaji and that he had been released on bail in the said case. The respondent no. 1, Mohd Rashid, R1W1 has also deposed that he has not filed any written complaint regarding his false implication in the accident. The testimony of the R1W1 is not reliable as no compliant has been filed by him before any authority against his alleged false implication in this accident. On the other hand, the statement of PW1, Sh Kabir also stands corroborated by the Detailed Accident Report and the copy of the Final Report U/s 173 CrPC filed by the police in respect of this accident (FIR No 331/10, PS Kalkaji) against the R1/ driver of the offending vehicle for his trial of Suit No. 557/10 Page 5 of 18 offences U/s 279/337/338 IPC. The copies of FIR, Site Plan, Seizure Memo of DL and Arrest Memo of R1/ driver of the offending vehicle, Seizure Memo and Mechanical Inspection Report of the offending vehicle have also been filed on record. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled in Basant Kaur & Ors. Vs. Chattar Pal Singh & Ors., 2003 ACJ 369 M.P. (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 the judgment titled "Kaushnumma Begum and others V/s New India Assurance Company Limited(2001 ACJ 421 SC) that the issue of wrongful act or omission on the part of driver of the motor vehicle involved in an accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and Suit No. 557/10 Page 6 of 18 negligence as finds mention in the Indian Penal Code. This is because of the fact that the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one. It is also a settled law that while deciding the culpability and involvement of a vehicle in an accident, the tribunal is not required to be too technical but should decide the cases on preponderance of evidence. The present petition is on a better footing for the reason that there is eye witness to the accident whose testimony is on record and even the copy of Final Report U/s 173 CrPC filed by the police in respect of this accident (FIR No 331/10, PS Kalkaji) against the R1/ driver of the offending vehicle for his trial of offences U/s 279/337/338 IPC also clearly reveals involvement of the offending vehicle and causing of injuries to the petitioner due to rash and negligent driving of respondent no. 1.
7. In view of the above discussions, it stands proved on record that the petitioner, Sh Kabir had suffered injuries due to rash and negligent driving of respondent no 1. Accordingly, the issue no. 1 is decided in favour of the petitioner and against the respondents. ISSUE NO. 2 (COMPENSATION):
8. The petitioner has claimed Rs.5,45,000/ as compensation Suit No. 557/10 Page 7 of 18 on account of the injuries sustained by him in the accident. The Hon'ble Supreme Court of India in case titled "R D Hatangadi Vs Pest Control (India) Pvt Ltd" [AIR 1995 SC 755] has laid down principles that "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money whereas nonpecuniary damages are those which are not capable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant; (i) medical attendance;
(ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and sufferings 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) Suit No. 557/10 Page 8 of 18 inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life". Let me now assess the amount of compensation to be given to the petitioner under different heads:
COMPENSATION FOR THE REIMBURSEMENT OF MEDICAL EXPENSES:
9. The petitioner has filed on record original medical bills, Ex.PW1/C(Colly). The total of these original bills relating to the treatment of the injuries suffered by the petitioner in this accident comes out to be Rs. 36,809/ and which is rounded off to Rs. 37,000/. Therefore, I hereby award a sum of Rs. 37,000/ towards reimbursement of medical expenses keeping in view the nature of injuries suffered by the petitioner in this accident. COMPENSATION FOR PAIN, SUFFERINGS AND LOSS OF AMENITIES OF LIFE:
10. Let me now assess the compensation to be paid to the petitioner for pain, suffering and loss of amenities of life. It is settled law that a particular amount can not be fixed for pain and sufferings for all the cases as it varies from case to case. As per the medical record of the petitioner i.e. MLC bearing no. 218520 dated 17.07.2010 issued Suit No. 557/10 Page 9 of 18 from JPN Apex Trauma Center, New Delhi, the doctor examining the petitioner after the accident has opined about the nature of injuries suffered by the petitioner to be grievous in nature. As per the Discharge Summary dated 29.07.2010 issued from Safdarjung Hospital, New Delhi, the petitioner, Sh Kabir was admitted in the said hospital on 17.07.2010 and was discharged on 29.07.2010 and was diagnosed with traumatic fracture of shaft of femur and compound Gd II fracture of both th th th bones of left leg and fractures of 5 ,6 and 7 Rib. The petitioner has also been treated at Jeevan Jyoti Orthopedic Clinic, Araria, Bihar. Judicial notice can also be taken on the fact that since the petitioner had suffered grievous injuries, he must have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy doses of antibiotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the compensation for pain and sufferings, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain V/s Jai Kishan (FAO No: 709/02 decided on 02.02.2007) wherein it was held that: "On account of pain and suffering, suffice would it Suit No. 557/10 Page 10 of 18 be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objective corelation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment."
11. The learned counsel for the petitioner submits that the petitioner has suffered permanent disability to the extent of 20% in relation to his both lower limbs due to this accident. In my considered opinion the said disability suffered by the petitioner will affect his efficiency and in fact his daytoday life has been adversely affected due to the injuries suffered by him in this accident and, hence the petitioner is entitled for loss of amenities/loss of expectation of life and for the inconvenience which the petitioner has to undergo for his remaining life due to his physical impairment suffered by him due to this accident. Keeping in view the guidelines passed by the Hon'ble Supreme Court as well as Hon'ble High Court of Delhi and in view of the nature of injuries suffered by the petitioner, I am of the opinion that a sum of Rs. 50,000/ as compensation for mental and physical shock, pain and Suit No. 557/10 Page 11 of 18 sufferings of the petitioner which he has already suffered or is likely to suffer in his remaining life and Rs. 50,000/ as compensation for the loss of amenities i.e. inability to walk/ run in a normal manner, disfiguration, frustration and mental stress in life due to the injuries suffered by the petitioner in this accident will be sufficient to meet the ends of justice.
COMPENSATION FOR CONVEYANCE:
12. The Ld counsel for the petitioner has claimed compensation for expenses incurred by the petitioner on conveyance. Though, there is no cogent evidence on record regarding the amount spent by the petitioner on conveyance but keeping in mind the fact that the petitioner had suffered grievous injuries and was hospitalized and has also visited the hospital number of times for his treatment, I am of the opinion that a sum of Rs. 10,000/ as compensation on account of conveyance will meet the ends of justice.
COMPENSATION FOR SPECIAL DIET & ATTENDANT CHARGES:
13. The Ld counsel for the petitioner has claimed compensation for expenses incurred by the petitioner on special diet & attendant charges for early recovery of the petitioner. Though, there is no cogent Suit No. 557/10 Page 12 of 18 evidence on record regarding the amount spent by the petitioner on special diet and attendant charges but keeping in mind the fact that the petitioner had suffered injuries in this accident and he would have spent some amount on special diet & attendant charges during his treatment, I am of the opinion that a sum of Rs. 20,000/ as compensation on account of special diet & attendant charges will meet the ends of justice. COMPENSATION FOR PERMANENT DISABILITY & LOSS OF INCOME:
14. The Ld. counsel for the petitioner has submitted that the petitioner has suffered permanent disability to the extent of 20 % and has placed reliance on the Disability Certificate, ExPW1/E, issued from Pt Madan Mohan Malviya Hospital, New Delhi, where the petitioner was examined for ascertaining the extent of his permanent physical disability due to this accident, pursuant to the directions passed by this Tribunal vide order dated 16.07.2011. The said disability certificate was directly sent by Medical Superintendent/Chairman, Disability Board, Pt Madan Mohan Malviya Hospital, New Delhi to this Tribunal and has not been challenged by either party. Let me now assess the compensation to which the petitioner is entitled to on the ground of permanent disability? Suit No. 557/10 Page 13 of 18
15. Admittedly, the Disability Certificate, ExPW1/E of petitioner refers to 20 % disability in relation of his both lower limbs and the doctors examining the petitioner have also opined that the condition of the petitioner is likely to improve and reassessment has been recommended after a period of two years. The petitioner has failed to examine the concerned doctors who had examined the petitioner or issued the said disability certificate or had treated the petitioner. The doctor could have thrown light on the question whether the physical disability suffered by the petitioner is in relation to whole body or not. I am of the opinion that for arriving at just and reasonable compensation, this Tribunal has to examine the question as to what will be the affect of disability on the working capacity of the petitioner. The petitioner has claimed to be working as labourer with M/s Gutpa Contractors, Bhogal, Jungupra but has not filed any document regarding his avocation, educational qualifications or monthly earnings. No witness has been got summoned from his employer nor any official from M/s Gutpa Contractors has been got examined. The petitioner has not been able to establish his avocation with the help of any cogent or reliable Suit No. 557/10 Page 14 of 18 evidence. However, if the petitioners' statement is believed and it is presumed that he used to work as a labourer, I am of the opinion that disability suffered by him will adversely affect his working capacity to the extent of 10 % only as he can still carry on his work though not with the same efficiency with which he was working earlier. The petitioner has claimed his earnings to be Rs.7,500/ per month but has not filed on record any document regarding his avocation, monthly income or educational qualifications. In the absence of any cogent documentary evidence in respect of monthly earnings of the petitioner, the same can be taken to be the minimum wage of an unskilled workman as notified by Delhi Government and the same was Rs. 5,278/ on the date of accident (17.07.2010). As per the Election ICard, ExPW1/A, the petitioner was aged about 45 years as on 01.01.2003, hence he was about 52 years old on the date of accident (17.07.2010) for which the appropriate multiplier applicable for the age group of 5155 is 11, in terms of judgment of the Hon'ble Supreme Court of India in case titled "Sarla Verma Vs Delhi Transport Corporation" [2009 (6) Scale 129]. Therefore, the total loss of future earnings on account of disability of the petitioner comes to be Rs. 5,278/ X 12 X 11 X 10/100 = Rs. 69,669.60/ Suit No. 557/10 Page 15 of 18 which is rounded off to Rs. 70,000/. Keeping in mind the fact that petitioner had suffered grievous injuries and was also hospitalized due to the injuries suffered by him in this accident, he could not have done any work for about 04 months. The compensation for the loss of income during this period, therefore, comes to Rs. 21,112/ (Rs. 5,278/ x 04) which is rounded off to Rs. 22,000/. The petitioner is, therefore, entitled to a total sum of (Rs. 70,000/ + Rs. 22,000/) = Rs. 92,000/ as compensation for loss of income and future earnings due to the injuries suffered by the petitioner in this accident.
16. Thus, the total compensation to which the petitioner is entitled to now comes as under : THE TOTAL COMPENSATION IS ASSESSED AS UNDER:
1. Compensation for medical expenses: Rs. 37,000/
2. Compensation for Pain, sufferings and loss of amenities of life/ expectation of life /disfiguration, disappointment etc: Rs. 1,00,000/
3. Compensation for conveyance: Rs. 10,000/
4. Compensation for special diet charges and attendant charges: Rs. 20,000/
5. Compensation for loss of income and future earnings on account of permanent disability: Rs. 92,000/ Total: Rs.2,59,000 / Suit No. 557/10 Page 16 of 18 RELIEF:
17. In view of the aforesaid discussions, it is hereby held that petitioner is entitled to a sum of Rs.2,59,000/ along with interest @ 7.5% per annum inclusive of interim compensation, if any, from the date of filing of the present petition i.e. 29.09.2010 till the notice under Order 21 Rule 1 CPC is given by the respondents (excluding interest for the period w.e.f 26.11.2010 till 15.02.2012 in terms of the order dated
06.04.2011), in favour of the petitioner and against the respondents on account of their liability being joint and several. APPORTIONMENT OF LIABILITY:
18. The respondent No. 3, being the insurer of the offending vehicle at the time of accident, is jointly and severally liable with the other respondents. Accordingly, the respondent No. 3 i.e M/s ICICI Lombard General Insurance Company Limited is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
19. In terms of the directions passed by the Hon'ble High Court of Delhi in its latest judgment titled as "Amod Kumar Ray & Ors Vs Suit No. 557/10 Page 17 of 18 Raj Kumar Chauhan & Ors" {CM(M) 649/2011 decided on 25.05.2011}, the Insurance company is directed to deposit the award amount in the State Bank of India, District Courts Saket, New Delhi in the name of the petitioner in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the Insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank. The copy of this award be given to the insurance company as well as to the petitioner free of cost.
20. Put up for compliance to be filed by the Insurance company on 14.05.2012. The petition stands allowed and disposed off accordingly. The Inquiry file be consigned to record room after completion of necessary formalities.
Announced in the open court (PREM KUMAR BARTHWAL) on 16.03.2012 POMACT, SE01, SAKET COURTS NEW DELHI Suit No. 557/10 Page 18 of 18