Delhi District Court
Sh. Bhawani Singh vs National Insurance Co. Ltd on 11 September, 2013
1
IN THE COURT OF SH. AJAY KUMAR JAIN:
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL:
SOUTH EAST DISTRICT/ SAKET COURTS: NEW DELHI
Suit No. 382/11/08
FIR No: 442/08
PS OIA
Unique Identification no. 02403C0946632008
Injury Case
Sh. Bhawani Singh
S/oSh. Ram Abhilakh
R/o HR190/05, Pul Prahlad Pur, New Delhi
And Vill. Baruei, PostGondha, PSKotwali Dehat,
Distt, Gonda,U. P.
.................. Petitioner
Versus
1. National Insurance Co. Ltd.
R/o1, Jeevan Bharti Building, 4th floor,
TowerII, Connaught Place, New Delhi1,
2. Lami Narayan Tiwari (Owner)
S/o Sh. Madhav Prasad Tiwari
R/o DDA,237 Janta Flat, Pul Prahladpur
New Delhi
3. Vishwanath Yadav(Driver)
S/o Sh. Ram Chander Yadav,
R/o Vill. Dhai Nabdali P.S. Lal Bagh,
Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 1 of 18
2
Distt, Darbhanga, Bihar,
.....................Respondents
Initial date of Institution : 15.11.2008 Date of reserving the judgment : 07.09.2013 Date of pronouncement : 11.09.2013 Judgment:
1. Present claim proceedings arose on the basis claim petition filed U/s 166/140 of Motor Vehicles Act .
2. Brief facts of the case are that on the intervening night of 03.10.2008 to 04.10.2008, when petitioner was dragging his cycle at ICD container depot. OIA, PhaseI, New Delhi, one truck bearing No. HR55B3529, driven by respondent no.3 in a rash and negligent manner, hit the petitioner due to which he sustained grievous injuries and was removed to Trauma Centre AIIMS New Delhi.
3. An FIR no. 442/08, u/s 279/338 IPC PS OIA was registered on the statement of petitioner. During investigation police recorded the statement of the witness, prepared the site plan of the place of occurrence, seized the offending truck trailer and bicycle, conducted mechanical inspection, collected the medical treatment documents of the injured along with XRay plates, and Xray reports. On completion of investigation found respondent no.3 Vishwa Nath Yadav accused of rash and negligent driving, hence, chargesheeted Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 2 of 18 3 him for commission of offence u/s 279/338 IPC.
4. During inquiry respondent no.1, insurance company filed his reply and stated that the said offending truck was duly insured in the name of the respondent no.2. Despite service by way of publication respondent no.2 & 3 did not appear before the court. Application u/s 170 MV Act filed by the insurance company was allowed.
1. During inquiry, following issues framed:
1. Whether the petitioner received grievous in the accident which took place on 04.10.2008 at about 12.00 PM caused by offending vehicle i.e Truck container bearing no. DL HR55B3529 due to rash and negligent driving of respondent/driver, owned by respondent/owner insured by respondent insurance company? OPP
2. To what amount of compensation the petitioner is entitled to claim and from whom ?
3. Relief.
5. During evidence petitioner examined himself as PW1, Dr. Piyush Rajan Senior Research Surgeon AIIMS hospital as PW2. Respondent No.1, insurance company examined R1W1 Sh. K.R. Verma Account Officer of National Insurance company.
6. Material Exhibits: ExPW1/1 is a discharge summary of the petitioner showing he was admitted in AIIMS Trauma Centre on Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 3 of 18 4 04.10.2008, got operated on 04.10.2008 and discharged on 10.01.2008. As per diagnosis "complete perineal tear, pelvis fracture, urethral injury with involvement of anal sphincter"Ex PW1/2, to ExPW1/48, are the OPD Card and the other treatments records of the petitioner at AIIMS hospital. ExPW1/30, OPD Card shows that " patient have tight stricture in anal canal so patient have to keep permanent colostomy and no further surgical intervention needed for surgery site. ExPW1/50 is the certificate issued from surgery department of AIIMS Hospital which shows his anal canal (stool passage) can not be restored and need life long, permanent diversion of his passage. ExPW1/55 to ExPW1/107 are the medical bills regarding the treatment of the petitioner. ExPW1/108 and ExPW1/109 is the Aadhaar Card as well as ration card of the petitioner ExPW1/110 is ExPW1/123 are documents of criminal case.
7. Pursuant to order dated 17.05.2012 passed by this tribunal, Safdarjung hospital constituted a medical board as per medical board report dated 09.06.2012, the petitioner was found with pelvis fracture and is on supra pubic catharization and diverting colostomy, however, pelvis examination (locomotor) is within normal limits and opined that petitioner do not qualify for disability certificate as per gazette Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 4 of 18 5 notification issued by Ministry of Social Justice and Empowerment, Govt. of India.
8. After hearing arguments and considering the material on record of the case, my issue wise finding is as follows: Issue no. 1 (Negligence):
9. PW1 petitioner in his affidavit of evidence Ex. PW1/A categorically stated that when he was dragging his bicycle at ICD container deepot, in the intervening night of 03.10.2008 and 04.10.2008, the offending truck driven by respondent no.3 in rash and negligent hit the petitioner along with bicycle, due to which he was suffered grievous injuries. Thereafter he was removed to AIIMS Truama Centre. In crossexamination, he improved and stated that driver R3 hit him deliberately, but has not lodged any FIR for intentional and deliberate hitting.
10. Police during investigation recorded the statement of injured arrested R3, prepared site plan, sized the offending Truck Trailer, collected MLC and other documents. On completion of investigation found respondent no.3 accused of rash and negligent driving hence chargesheeted him u/s 279/338 IPC. Though the petitioner in his cross examination deposed that he was deliberately hit by the respondent no3 but neither stated this fact in his affidavit of evidence nor before the police, hence his testimony of deliberate hitting can Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 5 of 18 6 not be relied upon, however, his testimony over the fact that the accident was caused due to the rash and negligent driving of R3 is found reliable.
11. 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 "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 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 Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 6 of 18 7 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.
12. In view of the above discussion, further as no contrary evidence came against the petitioner, it stands proved that petitioner has suffered grievous injuries due to rash and negligent driving of the respondent No.3. Accordingly the issue no. 1 is decided in favour of the petitioner and against the respondents.
Issue no. 2 (Compensation):
13. Medical Expenses: Petitioner suffered the accidental injuries on the intervening night of 03.10.2008 to 04.10.2008 and immediately removed to AIIMS hospital. As per the discharge summary he received pelvis fracture,urethral injuries, complete perineal tear, For appreciating the severity of injuries, the testimony of PW2 Dr. Piyush Ranjan Senior Resident Associate AIIMS reproduced as under:
"Today I have brought the summoned record which is already Ex PW1/1 discharge summary in the name of Bhawani Singh @ Bhawani prasad and other relevant medical documents of injurd Bhawani Singh. Injured has been admitted in our hospital Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 7 of 18 8 JPNATC, AIIMS ON 04.10.2008 with alleged history of RTI patient was operated for complete perinel tear pelvis fracture unrethral injury with involvement of anal sphincter. Perineal packing with supra public cystostomy and sigmoid loop. Colostomy was done. He was discharged with the same on 13.10.2008. On subsequent examinations in OPD it was found that colostomy closure is not possible because of anal stricture. As per the record which is already ExPW1/30 patient may have permanent colostomy i.e for whole life as restoration is not possible. In simple terms patient had severe injury of anal canal so faecal matter has to be diverted through large intestine may be permanently. Patient is currently under treatment of urology department AIIMS on OPD basis ans as per records they have planned surgery for restoration for urinary passage if feasible. In the state of injury it is difficult for the patient to do the job as a cycle vendor.
XXXXXXXX By Sh. Piyush Sharma ld. Counsel for the insurance company.
I am authorized by doctor Subodh. Through not any written authority was given. I am working under Dr. Subodh who is additional Professor, Surgery, JPNATC, AIIMS. Initially, I was not involved in the treatment of the patient. I have examined the Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 8 of 18 9 patient in the OPD. This certificate ExPW1/50, was issued by some doctor Amit Kumar. However, I do not know about him but the certificate is issued on the basis of query by the patient
14. The medical record of the petitioner clearly suggest the he received grievous injuries in which his both the pelvic bones were fractured, and his urinary and stool track was damaged. The petitioner is under treatment till date i.e for about five years and during the hearing he come to the court carrying stool bag and it will continue with him for entire life. PW2 Dr. Piyush Ranjan Senior Research Associate Surgery, JPNATC AIIMS categorically deposed in the court that petitioner suffered pelvic fracture and on subsequent examination in OPD, it was found that colostomy closure is not possible because of anal stricture. In simple terms he stated that patient had severe injury of anal canal so faecal matter has to be diverted through large intestine may be permanently and petitioner is currently under treatment at OPD of urology department of AIIMS.
15. The testimony of this witness along with medical documents categorically shows that petitioner has lost his anal track from where stool has to come out, therefore, his faecal (stool) matter has to be diverted for entire life through large intestine into the urinary bag and PW2 categorically stated that there is hardly any possibility of restoration of urinary track. The statement of PW2 was recorded in Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 9 of 18 10 the court on 05.08.2013 ie after about five years of the accident and till date the petitioner anal track was not restored, and there is no likelyhood of the restoration of the same throughout life.
16. The petitioner was examined for disability by Safdarjung hospital doctors who also noticed the above disease but opined that petitioner do not qualify for disability certificate, as per gazette notification issued by the Ministry of Social Justice & Empowerment.
17. As per medical record petitioner anal track can not be restored, through this is not notified disability but for the purpose of accidental claim his injuries falls in the category of permanent disability entitling him for compensation for permanent disability.
18. The petitioner filed total bills of Rs.5,791/towards his medical expenses though ld. counsel for the petitioner submits that he has spent much more money on medical expenses. The petitioner is under treatment for last five years, therefore it can be presumed that he has incurred huge amount an medical treatment therefore, a sum of Rs. 30,000/ is granted toward medical treatment.
19. Pain and Suffering: In the present case petitioner suffered grievous fracture pelvic injury due to which anal track was damaged and there is no likelyhoood and restoration of the same. Petitioner is under treatment for last five years, and treatment likely to continue for entire future life also. Keeping in view the nature of the injuries, Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 10 of 18 11 duration of the treatment and trauma of accident, hence a sum of Rs. 1,00,000/ is granted towards pain and suffering.
20. Loss of Amenities: Petitioner has already discussed, suffered grievous fracture injuries and has to remain dependent on urinary bag for entire life for release of feacal matter, this will hamper his enjoyment of life, and also not able to effectively enjoy the daily life activities, hence a sum of Rs. 1,00,000/ is granted towards loss of amenities and enjoyment of life.
21. Loss of present and future income: Petitioner in his affidavit of evidence stated that at the time of the accident he was earing Rs. 5,000/ as a tea vendor and sole bread earner in his family. There comes nothing in crossexamination of the petitioner that he was not a tea vendor and not earning Rs.5,000/ per month at the time of accident. The medical record suggest that petitioner was still under treatment.
22. PW2 doctor categorically stated that petitioner unable to work as cycle vendor from this it could be inferred that he must have suffered 50% loss of earning capacity. Date of birth of the petitioner as per Aadhaar Card ExPW1/108 is 20.10.1965, therefore, he is around 43 years of age on the date of accident. Thus, future loss of earning will be calculated as follows:
a) Annual income before the accident= Rs. 5,000/X12=60,000/ Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 11 of 18 12
b) Loss of future earning per annum(50% of annual income)=30,000/.
c) Multiplier applicable with reference to age of 43 years is 14.
d) Loss of future earnings =30,000X14=4,20,000/. Hence petitoner, is awarded for a sum of Rs. 4,20,000/ is granted towards present and future Loss of income.
23. Compensation for Special Diet and Conveyance: The petitioner in his affidavit of evidence categorically stated that he spent amount of Rs.50,000/ on convenience and Rs.1,00,000/ on special diet, but not filed any documents in this regard. However, keeping in view of the fact that petitioner is under treatment for about five years a sum of Rs. 50,000/ is granted towards conveyance charges and a sum of Rs.
1,00,000/ is granted towards attendant charges. Further, a sum of Rs. 50,000/is granted towards special diet. Thus, total sum of Rs. 2,00,000/ granted under this head.
24. Future Medical Expense: Petitioner has to move entire life with urine beg for release of faecal matter and required acute medical attention throughout life, hence, a sum of Rs. 1,00,000/ is granted toward future medical expenses.
25. Disfigurement. Petitioner has to carry urinary bag for releasing the feacal matter for entire life, this caused disfigurement of entire Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 12 of 18 13 body,therefore, a sum of Rs.50,000/ is granted towards disfigurement.
26. Thus, the total compensation to which petitioner is entitled comes as under:
27.
S.No Details Amount
1 Compensation for medical expenses Rs.20,000/
Compensation for special diet, conveyance Rs. 2,00,000/ 2 and attendant charges 3 Compensation for pain and sufferings Rs. 1,00,000/ 4 Loss of amenities and enjoyment of life Rs. 1,00,000/ 6 Loss of present and future income Rs. 4,20,000/ 8 Disfigurement Rs.50,000/ 9 Future medical expenses Rs.1,00,000/ Total 10,00,000/
28.Relief:The petitioner is hereby awarded a sum of Rs. 10,00,000/ (Rs. Ten Lacs only) alongwith interest @ 9% per annum from the date of filing of the present petition till the date of realization in favour of petitioner against the respondents on account of their liability being joint and several.
29. The driver R3 is the principal tort feasor whereas R2 and R3 being the owner and the insurer are the joint tort feasor and are jointly Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 13 of 18 14 and vicariously liable to pay the award to the petitioners.
30. Liability The main plea of the insurance company is that driver was holding fake licence at the time of accident. In this regard insurance company examined R1W1 Sh. K. R. Verma ,AO of the National Insurance company who deposed that despite sending notice to driver and owner O/R12 Rule 8 they have not produced the DL and the insurance policy, and as per the investigator report, the DL of the driver was found fake. Driver and owner not appearing since beginning neither filed any reply nor led any evidence. In these circumstances adverse inference is to be drawn against the owner and driver, thus owner is found to have willfully breached the policy condition. Hence insurance company able to prove its defence. Thus, insurance Company is given rights to recover the award amount after discharging its liability within 30 days, from driver and owner.
31. In view of the above discussion, the insurance company is directed to discharge the liability of the award amount within a period of 30 days from today alongwith the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay.
32.Release of awarded amount: A sum of Rs. 10,00,000/(Rs. Ten Lacs only) alongwith proportionate interest thereon, is awarded to the petitioner. Out of this amount, Rs.50,000/ alongwith proportionate interest be immediately released to the petitioner on realization. And Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 14 of 18 15 for balance amount of Rs.9.5 Lacs alongwith proportionate interest thereon be kept in form of FDR in the following phased manner :
1. Rs. 50,000/ for a period of 1 year
2. Rs. 1,00,000/ for a period of 2 years
3. Rs.1,00,000/for a period of 3 years
4. Rs.1,00,000/for a period of 4 years
5.Rs.1,00,000/for a period of 5 years
6.Rs.1,00,000/for a period of 6 years
7.Rs.1,00,000/for a period of 7 years
8.Rs.1,00,000/for a period of 8 years
9.Rs.1,00,000/for a period of 9 years
10.Rs.1,00,000/for a period of 10 years
33.Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi
34. 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.
35. 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. Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 15 of 18 16 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 claimants.
36. 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, insurance company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners. Within a period of 30 days from today, failing which respondent no.3 Insurance company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
37. 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 claimants/ petitioners after due verification and the Bank shall issue photo identity Card to claimants/ petitioners to facilitate identity. Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 16 of 18 17
(iii) No cheque book be issued to claimants/ petitioners 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 claimants/ petitioners alongwith photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to claimants/ petitioners 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 Bank of India, Saket Courts Complex Branch, New Delhi.
38.Directions for the respondent No. 1 (Insurance company):The Respondents1 is 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 Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 17 of 18 18 today.
39. The Respondent shall intimate to the claimants/ petitioners about it having deposited the cheques in favour of petitioner in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
40. Copy of this award/judgment be given to all concerned.
41. Put up the matter for compliance on 22.10.2013.
Announced in open Court ( AJAY KUMAR JAIN)
Dated : 11.09.2013 PO : MACT02, (SOUTH EAST DISTRICT)
SAKET COURTS/NEW DELHI
11.09.2013
Bhawani Singh Vs National Insurance co. Ltd. Suit no.382/11/08, Page 18 of 18