Delhi District Court
Smt. Kalawati W/O Late Sh. Chhotu Ram vs Sh. Jagmohan S/O Shri Naider Singh on 25 February, 2010
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IN THE COURT OF SHRI GURVINDER PAL SINGH
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL(WEST)
TIS HAZARI COURTS,DELHI
Suit No. 194/09
Smt. Kalawati w/o Late Sh. Chhotu Ram
R/o B-412, Budh Bazar Road, Camp No.2,
Nangloi, Delhi-110041
........PETITIONER
VERSUS
1. Sh. Jagmohan s/o Shri Naider Singh
R/o H.No.258, Village Mundhela Khurd,
Post Office, Najafgarh,
New Delhi-110073. (driver)
2. Sh. Dilbagh Singh s/o Sh. Chandgi Ram
R/o RZ-80, Rajeev Vihar, Najafgarh, New Delhi-43(owner)
3. The New India Assurance Co. Ltd.
902-905, Hemkunt House, Rajendra Place,
New Delhi-8(Insurer)
.........RESPONDENTS
Date of filing of the petition : 07/08/07
When reserved for judgment : 03/02/10
Date of final judgment/ award : 25/02/10
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JUDGMENT / AWARD
Petitioner has claimed Rs. 16,00,000/- (Rupees Sixteen Lakhs) as compensation vide claim petition u/s 166/140 of Motor Vehicles Act, for grievous injuries sustained on 12/03/07 at about 12.05 p.m, in front of Plot No.1, Naresh Park, Najafgarh Road, Nangloi, Delhi, resulting in permanent disability when she was in the process of getting down from the front gate of the stationary bus bearing No. DL-1PA-1813 at the bus stop, when it was suddenly driven by respondent No.1 rashly and negligently without caring for petitioner to alight safely, resulting in the fall of the petitioner on the road and her right leg came under the rear wheel of the left side of the bus.
2. Respondents No.1,2,& 3 are the driver, owner and insurer respectively of the offending vehicle.
3. Respondents were served with the summons.
4. All the respondents filed the written statement and denied the claim of the petitioner.
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5. Respondent No.3, insurer has however, admitted the fact that vehicle i.e. Bus bearing registration No. DL-1PA-1813 was insured with it vide Policy No. 312300/31/06/00005373 valid from 28/12/06 to 27/12/07.
6. Vide order dated 23/01/08, following issues were framed by my Ld. Predecessor.
1. Whether the petitioner had sustained injuries on 12.03.2007 at about 12.05 p.m infront of Plot No.1, Naresh Park, Najafgarh Road, Nangloi, Delhi due to rash and negligent driving of respondent No.1 Sh. Jagmohan while driving Bus bearing registration No. DL-1PA-1813?
2. Whether the petitioner is entitled to any compensation. If so, to what amount and from whom?
3. Relief.
7. Vide order dated 20/03/08 of my Ld. Predecessor, the petitioner was awarded interim compensation of Rs. 25,000/- alongwith interest @ 7.5% per annum from the date of filing of the petition till its realization. 4
8. Petitioner as PW-1; Sh. Suresh Kumar as PW-2, Sh. K.D. Sharma as PW-3; Dr. Sanjay as PW-4 and Sh. Gaurav Saingar as PW-5 are the examined petitioner witnesses
9. For non-appearance, respondents no.1 & 2 were proceeded exparte vide order dated 18/08/08 of my Ld. Predecessor.
10. No respondent evidence was led despite opportunity.
11. I have heard Ld. Counsels for the parties, perused the record and given my thoughts to the rival contentions put forth. My issue wise findings are as under:-
ISSUE NO.1
12. PW-1 testified that on 12/03/07 at about 12.05 p.m she was in bus No. DL-1PA-1813 at Nangloi Bus Stand at Najafgarh Road. While she was in the process of alighting from the front gate of stationary bus, suddenly, respondent No. 1 drove the bus at high speed in rash and negligent manner. Petitioner No.1 fell down on the road and right leg of PW-1 came under the 5 rear wheel of the left side of the bus. Respondent No.1 stopped the bus at a distance of 20/25 meters from the place of accident.
13. Neither respondent No.1 has entered into the witness box to testify in contrary to the version of PW-1 nor there is any evidence on record to disbelieve or discredit PW-1 in toto or in particular.
14. The version of PW-1 is lent corroboration by the version emanating from the attested copy of the charge-sheet, Ex. C-1(colly.) of case FIR No. 213/07, u/s 279/338 IPC, P.S. Nangloi, in terms of which the investigating agency opined that the respondent No.1 had committed the said offences and was responsible for the grievous injuries on the person of petitioner caused by his rash and negligent driving.
15. A driver behind wheels of a mechanically propelled heavy vehicle is under bounden duty to observe necessary caution while alighting and getting down of the passengers. Having failed to observe such bounden duty and having caused grievous injuries on the person of petitioner,, 6 respondent No.1 was berserk locomotion and thus negligent.
16. In view of the above discussion, I am of the considered opinion that petitioner has been able to prove that she sustained grievous injuries due to rash and negligent driving of respondent no.1. Issue No.1 is decided in favour of the petitioner and against the respondents. ISSUE NO.2
17. The petitioner has claimed Rs 16,00,000/- as compensation for the sustained grievous injuries and disability suffered by her. Let me now assess the compensation to which the petitioner is entitled to under different heads?
Compensation for the expenses incurred on medical treatment.
18. The petitioner has placed on record the medical bills, Ex. PW1/21 (colly.). Total of these bills comes to Rs. 32,209/-. The petitioner is, therefore, entitled to sum of Rs. 32,209/- as compensation for her medical expenses.
Compensation for conveyance
19. Sh. Suresh Kumar as PW-2, Record Clerk of Sanjay Gandhi 7 Memorial Hospital, Mangol Puri has proved the copy of the medical treatment record of the petitioner as Ex. PW2/A. In terms thereof, the petitioner was admitted in Sanjay Gandhi Memorial Hospital on 12/03/07 till 21/03/07.
20. Sh. K. D. Sharma, Record Clerk of Maharaja Agrasen Hospital, Punjabi Bagh has proved the copy of the treatment record of the petitioner as Ex.PW3/A. In terms thereof, the petitioner was admitted on 21/03/07 in Maharaja Agrasen Hospital till 14/04/07. As per discharge slip, Ex. PW1/3 of Maharaja Agrasen Hospital, the petitioner was again admitted there on 23/07/07 till 04/08/07. The petitioner in terms of her medical treatment record had suffered compound, grade three fracture of shaft of femur, degloving injury in right foot and below knee amputation of her right lower limb.
21. Though there is no cogent evidence on record for the money spent by the petitioner for conveyance,yet considering the nature of injuries 8 suffered by the petitioner elicited above, treatment papers of petitioner on record and hospitalization of the petitioner, I am of the considered opinion that petitioner must have spent some sum under this head. Petitioner is accordingly held entitled for sum of Rs. 15,000/- for expenses incurred on conveyance.
Compensation for special diet charges
22. Though there is no cogent evidence on record for the money spent by the petitioner for special diet, yet considering the nature of injuries suffered by the petitioner elicited above, treatment papers of petitioner on record and hospitalization of the petitioner, I am of the considered opinion that petitioner must have spent some sum under this head. Petitioner is accordingly held entitled for sum of Rs. 15,000/- for expenses incurred on special diet.
Compensation for attendant charges
23. Though there is no cogent evidence on record for the money spent by the petitioner for attendant charges, yet considering the nature of injuries suffered by the petitioner elicited above, treatment papers of petitioner on record and hospitalization of the petitioner, I am of the 9 considered opinion that petitioner must have spent some sum under this head. Petitioner is accordingly held entitled for sum of Rs. 15,000/- for expenses incurred on attendant charges.
Compensation for loss of earning capacity
24. As per Ex. PW1/23, the copy of ration card of the petitioner, her year of birth was 1966. She was accordingly of age 41 years as on the date of accident.
25. PW-1, petitioner testified of working as maid servant and earning Rs. 5000/- per month.
26. Petitioner has not placed on record any document regarding her education qualification, employment or monthly earnings nor has examined any witness to prove the same by any cogent evidence.
27. In absence of any cogent evidence on record regarding the monthly earnings of the petitioner,the monthly earnings of the petitioner are taken as per the minimum wage of an unskilled workman as notified by Delhi 10 Government which were Rs. 3470/- as on the date of accident.
28. Noting that to neutralize increase in cost of living and price index, minimum wages are increased from time- to-time. Minimum wages tend to increase by 100% every 10 years.
29. It is now well settled that while estimating future loss of income, the Court has to take into account future prospects of the injured and the increase in cost of living and price index.[ See (1) K. Narsimha Murthi V. The Manager, Oriental Insurance Co. Ltd. & Anr.,reported in 2004 ACJ 1109; (2)Oriental Insurance Co. Ltd. Vs. Vijay Kumar Mittal, reported in III(2007)ACC 676 and (3) Santosha Devi Vs. Abdul Kareem & Ors, in MAC Appeal No. 440/09 decided on 08/10/09 by Hon'ble Mr. Justice J.R. Midha]
30. Thus, Tribunal has to consider future increase in minimum wage while awarding compensation qua loss of earning capacity of injured.
31. Benefit of future increase in the income of the petitioner/ injured is 11 to be given. Thus mean average income of the injured is determined as Rs. 5205/- per month [{minimum wage+ double the minimum wage} divided by 2] for purpose of computation of compensation in this case.
32. In the case of Oriental Insurance Co. Ltd. Vs. Rajinder Kumar & Others,reported in III (2007)ACC 19, Hon'ble Mr. Justice, Pradeep Nandrajog had held that when the injured, a qualified stenographer suffered permanent disability resulting in 44% functional disability on left arm crushed under bus, there was no infirmity found in the award recompensating loss of future earning due to disability suffered by injured as a result of accident,even though the petitioner had not suffered any cut in salary and was employed with the same employer. Also was held that if as a result of the accident, human anatomy is shattered or a limb is damaged, as far as possible, loss occasioned in terms of money to the victim of the unfortunate road mishap has to be recompensed. Damages have to be full and adequate. In case of personal injuries, the assessment of damages have to take into consideration the restriction of future earning capacity. The loss of chance of better employment or prospects have also to 12 be examined and assessed. The impairment of the body as a whole has to be considered and its resultant impact on the earning or earning capacity as also future prospects in increasing the earning capacity have to be considered.
33. PW-4 Dr. Sanjay, Ortho Surgeon, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi testified that being member of the Disability Board, he had examined the patient, petitioner and had issued the permanent disability certificate, Ex. PW4/A. In terms thereof, the petitioner had suffered 60% permanent disability in relation to her right lower limb since it was a case of below knee amputation of the right lower limb. PW-4 further elicited since the petitioner was engaged in the work of maid servant, she will have difficulty in doing such work because of amputation as such work involves walking etc.
34. The vocation of the petitioner as a maid servant requires active and agile movement, going from her home to her different places of work viz., residential houses where she was engaged as maid servant, doing such 13 work there requiring walking, sitting, squatting,climbing stairs and kneeling. Considering the condition of the petitioner, since she suffered such amputation, I am of the considered opinion that the petitioner not only would face extreme hardship in doing such work of maid servant but would also in fact be incapacitated or unable to do such work. Since, for the work of part time maid servant, the requirements of employers of such workers would be qua demand of active and agile movement from their such employee for performing such work speedily, in time and actively. The permanent disability would come in the way of the petitioner while discharging such work of the maid servant and she would not at all be able to do any such work in future.
35. The petitioner would accordingly face 100% functional disability due to the suffered permanent disability.
36. In terms of law laid in the case of ' Smt. Sarla Verma & ors Vs. Delhi Transport Corporation & Anr, reported in III (2009) ACC 708 (SC), it was held that in a claim petition u/s 166 of the Motor Vehicles Act, 1988, the 14 multiplier of 14 is to be applied for assessing the compensation for the victim of the road accident(for the age group of 41 to 45 years). Since the petitioner was of age 41 years as on the date of accident, here also the multiplier of 14 is to be adopted in this case for assessing the compensation for petitioner.
37. In view of the aforesaid, the petitioner has suffered loss of earning capacity to the tune of Rs. 8,74,440/- ( Rs. 5205/- x 12 x14). Compensation for fitment of endolite below knee system
38. PW-5 Sh. Gaurav Saingar testified that he was Prosthetist and Orthotist Engineer, Endolite, P& O Centre. He has proved the authorisation given by his concern in his favour, Ex. PW5/A; Quotation dated 11/02/09, Ex.PW5/B, in terms of which cost of fitment of endolite below knee system was to the tune of Rs. 74,400/-. PW-5 testified on 21/12/09 that even that day, the costs of the fitment of endolite below knee system would be same as aforesaid. In terms thereof, the petitioner is entitled for sum of Rs. 74,400/- under this head.
Compensation for future cost of replacement of parts of endolite below 15 knee system
39. PW-5 testified that the socket of said system of endolite below knee system required replacement within 6 to 8 months, for first two years and later the limb comes into proper shape and such system works for 5/6 years and requires replacement thereafter.
40. In the decision reported as Naggapa Vs. Gurudayal Singh & ors reported in III(2002) ACC 766(SC), noting that artificial leg implanted on the leg of the injured would have to be changed every 2 to 3 years, Hon'ble Supreme Court awarded compensation in sum of Rs. 1 Lakh to meet the said future expenses. In terms thereof, the petitioner is entitled for sum of Rs. 1 Lakh under this head.
Compensation for loss on account of conveyance(future expenses)
41. In the case of Patti Ram Vs. Kushal Pal Singh in MAC Appeal No. 358/08, decided on 04/11/09 by Hon'ble Mr. Justice J.R. Midha, it had been held that permanently disabled was entitled for the loss on account of conveyance, to be computed also on multiplier basis. 16
42. Due to the suffered permanent disability and the amputation of the right lower limb, for all her remaining life, the petitioner would be incapacitated to travel by public transport and she will always have to incur extra expenses on travel. Relying upon law laid in the case of Patti Ram(supra), the petitioner is accordingly held entitled for the loss on account of conveyance @ Rs. 500/- per month which would be Rs. 84,000/- ( Rs. 500/- X 12x14).
Compensation for pain and suffering
43. One cannot over look the fact that realigned bones would cause life long pain to the petitioner during winter and rainy season. It is settled law that no amount of compensation can be adequate for the physical dis- comfort, mental pain and suffering. The Hon'ble Supreme Court in The Divisional Controller, KSRTC Vs. Mahadeva Shetty & Anr, reported in AIR 2003 SC 4172, has made the following observations regarding compensation for pain and suffering:-
"It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Merries in West Vs. Shepard, (1964 AC 326). Justice requires that it should be equal in value, although not alike in kind. Object of providing compensation is to place the claimant as far as possible in the same position 17 financially as he was before accident."
It is thus, difficult to exactly compensate the injured in terms of money for pain and suffering. In the present case, keeping in mind the facts and circumstances of the case and fact that petitioner is suffering from permanent disability, I am of the opinion that a sum of Rs. 1,00,000/- as compensation for pain and suffering will be sufficient to meet the ends of justice. Compensation for loss of amenities of life
44. The petitioner would be facing difficulty in properly walking, sitting, bending, squatting, kneeling and also in climbing the stairs. Keeping in mind the permanent disability suffered, the restrictions put on the active and agile movement of the petitioner due to the suffered permanent disability, I am of the opinion that a sum of Rs. 1,50,000/- as compensation for loss of amenities of life will be sufficient to meet the ends of justice. Compensation for physical disfigurement due to disability
45. Petitioner lost right lower limb below knee due to amputation, resultant from the present accident in question. The physical disfigurement cannot be recompensed in terms of money. Till one is alive,even one cannot face herself in the mirror, if is suffering from physical disfigurement. The 18 tribunal is enjoined to award just compensation for non pecuniary damages under this head as well. I am of the considered opinion that Rs. 50,000/- as compensation under this head for the petitioner would be just and petitioner is entitled for the same.
46. In view of the above discussion , the total compensation to which the petitioner is entitled to comes as under:-
1. Compensation for incurred medical expenses Rs. 32,209/-
2. Compensation for conveyance charges Rs. 15,000/-
3. Compensation for special diet Rs. 15,000/-
4. Compensation for attendant charges Rs. 15,000/-
5. Compensation for loss of earning capacity Rs. 8,74,440/-
6. Compensation for fitment of endolite below knee system Rs. 74,400/-
7. Compensation for cost of replacement of parts of endolite below knee system Rs. 1,00,000/-
8. Compensation for loss on account of Conveyance(future expenses) Rs. 84,000/-
9. Compensation for pain and suffering Rs. 1,00,000/
10.Compensation for loss of amenities of life Rs. 1,50,000/-
11.Compensation for physical disfigurement
due to permanent disability Rs. 50,000/-
____________
Rs . 15,10,049/-
Less interim compensation paid - Rs. 25,000/-
____________
Balance payable sum Rs. 14,85,049/-
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47. In view of the above discussions, Issue No.2 is decided in favour of the petitioner and against the respondents. Petitioner is thus, entitled to Rs. 14,85,049/- as compensation and interest @ 7.5 % per annum on sum of Rs. 13,10,649/- from the date of filing of the petition till its realization from the respondents, payable by Insurer.
Relief
48. In view of the aforesaid discussions, it is hereby held that petitioner is entitled to a sum of Rs. 14,85,049/- and interest payable on sum of Rs. 13,10,649/- @ 7.5 % per annum from the date of filing of the present petition till its realization from the respondents, payable by the Insurance Company respondent No.3.
49. Since the amount awarded should not be frittered away by beneficiaries owing to the ignorance, illiteracy etc., the Hon'ble Supreme Court of India in a case titled 'G. M. Kerala State Road Transport 20 Corporation Vs. Susamma Thomas' reported in 1994(2) SCC 176, has laid guidelines pronouncing that in a case of compensation, it is appropriate that Tribunals do keep in mind the principles enunciated by this court in 'Union Carbide Corporation Vs. Union of India', 1991(4) SCC 584, in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. Guidelines inter alia included of investment of share of the claimants in FDRs in nationalized banks with conditions that bank will not permit any loan or advance on the fixed deposits and interest on the amount invested is paid monthly / periodically directly to the claimant and such investment may be made in more than one fixed deposit. In case of any exigency, claimants are at liberty to apply to Tribunal for withdrawal of such investment.
50. In terms thereof, out of the award sum, 80% be invested in 16 FDRs (almost in equal share) in name of petitioner in State Bank of India. One FDR be invested for a period of 1 year; One FDR be invested for a period of 2 years;One FDR be invested for a period of 3 years;One FDR be 21 invested for a period of 4 years;One FDR be invested for a period of 5 years;One FDR be invested for a period of 6 years;One FDR be invested for a period of 7 years;One FDR be invested for a period of 8 years;One FDR be invested for a period of 9 years;One FDR be invested for a period of 10 years;One FDR be invested for a period of 11 years;One FDR be invested for a period of 12 years;One FDR be invested for a period of 13 years;One FDR be invested for a period of 14 years;One FDR be invested for a period of 15 years;One FDR be invested for a period of 16 years. The FDRs shall have no facility of loan or advance. Petitioner can withdraw the interest monthly. In case of exigency, petitioner can move application for premature withdrawal before this Tribunal, as per law.
51. State Bank of India,Tis Hazari, has agreed to open Special Fixed Deposit Account for the victims of road accidents.
52. Aforesaid fixed deposits are to be made by State Bank of India, Tis Hazari in the following manner:-
(1) The State Bank of India,Tis Hazari, shall open separate 22 Savings Account in the name of claimant and the entire interest on the aforesaid fixed deposits be credited in the said account. The fixed deposits shall be automatically renewed till the period prescribed by the court. (2) The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Account. (3) Withdrawal from the aforesaid account shall be permitted to the claimant after due verification and the Bank shall issue phot identity Card /Pass Book with attested photographs to claim to facilitate her identity.
(4) No cheque book be issued to the claimant without the permission of this Court.
(5) Half yearly statement of accounts be filed by the Bank in this Court.
(6) The original FDRs shall be retained by the Bank in the Safe custody. However, the original Pass Book shall be given to the claimant alongwith the photocopy of the FDRs. (7) The original Fixed Deposit Receipts shall be handed over to the 23 claimant at the end of the fixed deposit period. (8) No loan, advance or withdrawal shall be allowed on the said FDRs without the permission of this Court.
(9) On the request of the claimant, the Bank shall transfer the Saving Account to any other branch of State Bank of India according to the convenience of the claimant.
53. In terms of directions contained in case of UOI Vs. Nanisiri, in MAC Appeal No. 682/2005, order dated 13/01/2010, of Hon'ble Mr. Justice J. R. Midha, Respondent No.3 is directed to directly deposit the award sum with State Bank of India (SBI), Tis Hazari within 30 days through its nodal officer Mr. H.S. Rawat, Relationship Manager, Tis Hazari Branch (Mb:
09717044322) and the Manager concerned of SBI, Tis Hazari Court to keep the specified amount aforesaid in fixed deposits in terms of the award and release the balance amount by transferring the same to the Saving Bank Account of the victim/ claimant. Insurance Company to also file proof of deposit of award sum, also within said period. Manager SBI, Tis Hazari to also furnish compliance report within 15 days of deposit of award sum. Claimant to do the necessary formalities in respect of the bank account. 24
File be consigned to Record Room.
Announced in open court (Gurvinder Pal Singh)
today i.e.25/02/10 Judge, MACT(West)
Delhi.