Delhi District Court
Hari Pal S/O Sh. Jag Roop Singh vs ) Sh. Shiv Kumar S/O Sh. Shyam Lal on 10 April, 2012
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IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT &
SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT
CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
(MACT No. 583/10/09)
Hari Pal S/o Sh. Jag Roop Singh
R/o House no.133, 'H' Block, Old Seema Puri,
Shahdara, Delhi. -----------Petitioner
Versus
1) Sh. Shiv Kumar S/o Sh. Shyam Lal
R/o E-2, Sector-7, Noida (UP).
2) M/s Rakman Industry Ltd.,
(Through its Director)
E-2, Sector-7, Noida,
Distt. Gautam Budh Nagar.
3) Reliance General Insurance Company,
13th Floor, 1308 Ansal Tower, 38, Nehru Place,
New Delhi -------Respondents
Date of institution---23.01.2009
Date of decision------10.04.2012
(Application u/s 140 and 166 of Motor Vehicles Act
for grant of compensation)
********************************
JUDGMENT:-
Petitioner Hari Pal Singh aged about 30 years used to drive his own vehicle. It is stated that on 10.09.2007 at about 12.30night the petitioner was driving his Maruti Van no.DL-5CB-6777 at a very nominal speed, while taking up all the necessary precautions of traffic rules. The petitioner was coming from Azadpur Mandi and was going towards Shahbad Dairy via Sector-18 of Rohini, Delhi, and when the Van passes through -2- Nehar Bawana Road, Opposite Badli Industrial Area, suddenly a Truck bearing no.UP-16L-8655, being driven by the respondent no.1 in a rash and negligence manner coming from Shahbad Dairy side and the truck had taken wrong turn and hit against the Maruti Van with a great force. The impact was so powerful, the Maruti Van was completely and badly damaged and the petitioner had suffered multiple injuries on his body. The petitioner was removed to Babu Jagjivan Ram Hospital in the first instance and from where he was referred to St. Stephen Hospital, by his relatives. Respondent no.1 taking the advantage had tried to fled away from the hospital after seeking the relatives of the petitioner. However, later on the offending truck was apprehended by the police.
It is further alleged that the petitioner has suffered permanent disability on account of the injuries sustained by him in the aforesaid accident. It is further stated that the accident was caused due to rash and negligent driving on the part of driver of the offending vehicle. A criminal case under section 279/337 IPC was registered against respondent no. 1 vide FIR No. 701/07 in police station Samaypur Badli, Delhi.
Petitioner alleged that at the time of accident he was self employed and was earning Rs.8,000/- per month. He claimed sum of Rs.15 lakhs alongwith interest @ 18% p.a. as compensation from the respondents being owner, insurance company and driver of offending vehicle under various pecuniary and non pecuniary heads.
Respondent no. 1 and 2 filed a joint written statement and totally denied happening of accident with his vehicle. Respondents no. 3 insurance company in its written statement admitted existence of insurance policy in respect of offending vehicle but tried to avoid its liability on various technical grounds.
-3-On the basis of pleadings of the parties, following issues were framed on 25.02.2010 by my Ld. Predecessor:
1) Whether the petitioner received injuries in the roadside accident occurred on 10.09.2007 at about 12.30 in the night at opposite Bali Industrial Area near Nehar Bawana Road, Delhi, due to rash and negligent driving of R-1/driver of offending truck no. UP-16L-8655? OPP
2) Whether the petitioner is entitled to compensation as prayed for, if so, to what extent and from which of the respondents? OPP.
3) Relief.
In order to prove his case, petitioner examined three witnesses namely Dr. Arun Yadav as PW1, Sh. Liazley Roburt Illias, record clerk, St. Stephene hospital as PW2 and himself as PW3. PW3 injured / complainant has disclosed how and in which manner accident took place. He stated that he was removed to Babu Jagjeevan Ram Hospital from where he was referred to St. Stephen Hospital where he was diagnosis with fracture on right shoulder, Rib Fracture of right lower limb and number of stitches had been applied on his forehead and later on he underwent number of surgical operations and external affixation was applied on his leg. Since the injuries were so grevious, inspite of best treatment, he is not fully cured from the injuries sustained to him in this accident. He is facing difficulties in movement. Such as walking, climbing, sitting and even cannot fold his legs while sitting on floor and for that he approached the Medical Supdt. Hindu Rao Hospital for getting him examined before the medical board in order to access the disability and Medical board had issued a disability certificate showing him a permanent disabled person. Photocopy of disability certificate is Ex.PW3/1. He had incurred an amount of more than Rs. 3,00,000/- on his medicines, payments made to the hospitals alongwith -4- OPD Cards the same are exhibited as Ex.PW3/2 and Ex.PW3/3. Petitioner has also filed his election identity card, driving licence and the summary of the bills and the same are Ex.PW3/4 and 3/5 respectively.
Petitioner has further deposed that as a result of that accident his personal life had been badly affected. He has lost his confidence to enjoy normal life and even travel in a car and there is no question of driving by him in future. In the cross examination by counsel for R-1 & 2, petitioner stated that he is driver by profession and was running his own vehicle/cab in two different schools, however he has no proof regarding the deployment of vehicle in said schools. He denied the suggestion that he was under the influence of liquor at the time of accident and that he has wrongly noted down the number of the offending vehicle. He admitted that the road on which accident took place is a one way road and there is no cut or side road at the spot of accident. He further denied the suggestion that driver of offending vehicle did not take any wrong turn and that he accident took place due to his own negligence and that he is deposing falsely. He further stated that he informed the number of the offending vehicle to the police after 2-3 days of the accident when he was admitted in the hospital. During the cross-examination by respondent no.3 / Insurance company he stated that he remained admitted in Babu Jagjeevan Ram Hospital for about 2-3 hours and thereafter his family members shifted him to St. Stephen Hospital and there he was got treated for 6-7months. Thereafter he was called for treatment from time to time. He further stated that he had not incurred the total expenses of about Rs.3.5lacs to Rs.4lacs including conveyance. He denied the suggestion that he had incurred about Rs.3.5lacs to Rs.4lacs on his treatment, conveyance and special diet. He denied the suggestion that he has not lost enjoyment of life and self confidence and not driving any vehicle and using the taxi an autos for -5- personal conveyance and that he has filed a false claim and deposing falsely.
Petitioner further examined PW-2 Sh. Liazley Roburt Illias, Record Clerk, St. Stephen Hospital, who has brought the treatment record of the patient Hari Pal Singh S/o Sh. Jag Rup Singh w. e. f. 10.09.2007 (containing 76pages), 30.01.2008 to 01.02.2008 (containing 18 pages) and 02.04.2008 to 04.04.2008 (Containing 18 pages) and proved photocopies of the same collectively as Ex.PW2/1.
Petitioner also examined Dr. Arun Yadav, Sr. Orthopaedic Surgeon, Hindu Rao Hospital, Delhi as PW-1, who stated that he was a member of the Handicapped Board, which had issued the Medically Handicapped Certificate bearing no.1538 dated 20.06.2009 to injured Hari Pal Singh. He further stated that the patient was assessed to have suffered the permanent disability of 45% in relation to right upper limb and right lower limb. He proved copy of disability certificate signed by him at point-A as Ex.PW1/A. No cross examination of the said witness was conducted by the respondents no.1 and 2. During the cross-examination PW1 denied the suggestion that the alleged disability had not occurred due to the injuries suffered in the accident.
Two witnesses namely Sh. Ram Chander Yadav and Sh. Prem Kumar have been examined on behalf of respondent nos. 1 and 2, as R2W1 and R2W2. He proved on record his authority letter as Ex.R2W1/1 and copy of invoice as Ex.R2W1/2. During cross-examination by petitioner he admitted the fact that offending vehicle was seized by the police. However, he do not know the name of the driver of the offending vehicle on 10.09.2007. He stated that he has brought the carbon copy of Ex.R2W1/2 which is in loose condition and he has not brought the compete booklet.
-6-During cross-examination by respondent no.3 he stated that stamp affixed on Ex.R1W1 at point-A is of Noida Toll Tax Authority dated 09.09.2007. R2W2 Sh. Prem Kumar has brought the original invoice book of M/s Rakman Industries Ltd. Bearing Srl. no.176 to 200 and 201 to 225. He stated that he is the authorized signatory of the company. He further stated that four copies of invoices are prepared out of which two are retained and two are sent through the truck one for buyer and one for transport company and these invoices are relating to excisable goods and date and timing of loading as well as dispatch time is mentioned on the invoices. As per invoices no.200 date 09.09.2007 the loading of vehicle no.UP-16L-8655 was started at 1500Hrs. And the vehicle left for Aligarh on 1600 Hrs.. The name of the consignee of invoice no.200 is M/s Fabrico India Pvt Ltd., 36, Krishna Puri, Meerut, UP and the material was dispatched for Aligarh at the site office of the consignee. In the cross-examination by counsel for petitiner he stated that sometimes buyers do not taken their copy, so their copies have left in the booklet. He further stated that invoices are not prepared in his hand and invoice in question bearing no.200 was not prepared in my presence. Loading and leaving of truck also did not take place in his presence and he deposed on the basis of records only. Respondent no.3 / Insurance company has also examined two witnesses namely Sh. Manotsh Kumar Field Officer of investigator Vivek Kumar as R3W1 and Sh. Rakesh Sonkar, Manager (Legal), of Reliance General Insurance Co. Ltd, as R3W2. R3W1 has brought the photocopy of the investigation report submitted by Vivek Kumar. He stated that he visited the RTA, Ghaziabad for verification of the D/L of the driver but he do not remember the name of the driver or licence number. One officer, whose name he do not remember now, had informed him that the record which he wanted to inspect was not traceable. During cross-examination by petitioner he stated that he did not give any written report to Sh. Vivek Kumar and verbally informed him. The investigation report is not signed by him. He admitted that the -7- investigation report was prepared as per his version but it was not prepared in his presence. R3W2 Sh. Rakesh Sonkar , Manager (Legal) of respondent no.3 deposed that he has brought the attested copy of policy no. 1305372314100161 in respect of vehicle bearing no.UP-16L-8655 for the period 31.12.2006 to 30.12.2007 and proved the same as Ex.R3W2/1. He further stated that they also got the notice u/o 12 Rule 8 CPC issued to the owner and driver of the aforesaid vehicle and proved copy of notice as Ex.R3W2/2 and postal receipts as Ex.R3W2/3 (Colly. 2 sheets). He was neither cross-examined on behalf of the petitioner nor by the respondents no.1 and 2 despite opportunity given.
I have heard counsel for the parties and perused the material on record. My decision on the above mentioned issues is as under:
Issue no. 1:-
The principles to be followed in the case of motor accident claims has been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. Bani Chakraborty and Ors. 1999 ACJ 634 by Hon'ble Guahati High Court that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the -8- Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
N.K.V. Bros (P) Ltd. vs. M.Karumai Ammal & Ors. (1980) 3 SCC 475 Hon'ble Supreme Court has observed as under:-
"In Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".-9-
Petitioner/injured as PW-3 in his evidence disclosed how and in which manner the accident took place. Nothing adverse could come in the cross-examination of the witness to discard his version. It is not the case of the respondent no.1 that he knew either the petitioner or the IO before hand or that IO has any grudge against him, though he is facing prosecution. There is nothing on record to show that respondent no.1 and 2 had lodged any complaint to any higher authority regarding alleged false implication of respondent no.1 in criminal case. There is also no evidence on record to point out that respondent no.1 and 2 had any enmity with injured or his family members or investigation officer to create possibility of false implication of respondent no.1 in criminal case. Invoice showing truck has checked in at Vijay Nagar, Noida with stamp is failed to prove that vehicle reached at Aligarh. Ld. counsel for the respondent has argued that offending vehicle had checked out from Noida factory for going to Aligarh. It does not prove that after paying sales tax at Noida vehicle had infact gone to Aligarh. In fact only one invoice is brought on record while there are three invoices in the receipt book of the company to sent the mall. Version of the petitioner regarding accident has remained unrebutted and unchallenged and I find no ground to disbelieve him in this regard. There is nothing on record to point out that there was any negligence on the part of the petitioner. However, during cross-examination,counsel for respondents no.1 and 2 has put a suggestion that petitioner was under the influence of liquor at the time of accident, which was specifically denied by the petitioner. In this regard Ld. counsel for the petitioner has relied upon the judgment of G. Ramulu @ Venkat Ramulu Vs APSRTC, Hyderabad, Hon'ble Andhra Pradesh High Court reported in 2010 (4) TAC 975 (AP), wherein it is held that "actual extent of alcohol in the blood, and as to whether it exceeded the permissible limits of 30mg per 100 litre of blood so as to make appellant incapable of exercising proper control over the vehicle". In this regard Ld. Counsel for the petitioners has also relied upon -10- the judgment of Hon'ble High Court of Delhi in U. P. State Road Transport Corporation Vs Munni Devi reported in 2010 ACJ 2753, as per which "corporation bus at fast speed came on to wrong side of its road and hit a car coming from opposite direction resulting in death of 3 persons and injuries to 5 persons - defence that driver was driving bus at normal speed on his correct side and driver of car under influence of liqour came to his wrong side while overtaking a truck and struck against the bus". In view of judgment cited by counsel for petitioners and as alcohol content in the blood have not been specified in the MLC simple smelling of alcohol will not make it a case of driving under the influence of liqour, hence I am of the view that injured was capable of exercising proper control over the vehicle and the plea taken by respondents that injured was driving under the influence of liquour, is hereby declined. Petitioner has also placed on record the copies of criminal case which shows that police after investigation found that accident took place due to rash and negligent driving of the offending truck by respondent no. 1. No effective cross examination of the petitioner's witness was conducted by the respondents, so its adverse inference has to be taken against them. Police investigation also prima facie reveals the involvement of respondent no.1 in causing the accident due to driving offending vehicle in rash and negligent manner. Hence it is held that the accident took place due to rash and negligent driving of truck by respondent no. 1. Accordingly, this issue is decided in favour of petitioner and against the respondents.
Issue no. 2:-
Hon'ble Supreme Court in Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has observed as under:-11-
"The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term "compensation" used in section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under Sections 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of the compensation in such cases should invariably include pecuniary and non- pecuniary damages. In R.D. Hattangadi v. Pest Control (India) Private Limited MANU/SC/0146/1995: (1995) 1 SCC 551, this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in -12- Ward v. James (1965) - All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed:
"Broadly speaking while fixing an 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 non-pecuniary damages are those which are incapable 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 for non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, 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) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life".
In the same case, the court further observed:
-13-"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards".
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka MANU/SC/0803/2009: (2009)6 SCC 1, the three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs. 15 lakhs to Rs. 1 crore, the Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
"At the same time we often find that a person injured in an accident leaves his family in greater distress vis-...-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity".-14-
In Reshma Kumari v. Madan Mohan Manu/SC/1303/2009:
(2009) 13 SCC 422, this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the Judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
In Arvind Kumar Mishra v. New India Assurance Co.
Limited Manu/SC/0777/2010: (2010) 10 SCC 254, the Court considered the plea for enhancement of compensation made by the Appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:
"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as ho was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered".-15-
In Raj Kumar V. Ajay Kumar Manu/SC/1018/2010: (2011) 1 SCC 343, the court considered some of the precedents and held:
"The provision of the Motor Vehicles Act, 1988, ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as for as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and hie inability to earn as much as he used to earn or could have earned".
In our view, the principles laid down in Arvind Kumar Mishra vs. New India Assurance Company Ltd. (supra) and Raj Kumar vs. Ajay Kumar (supra) must be followed by all the Tribunals and the High Court in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should -16- always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident".
The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages):
Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising;
a) Loss of earning during the period of treatment;
b) Loss of future earnings on account of permanent disability.
c) Future medical expenses.
Non Pecuniary damages (General damages):
a) Damages for pain suffering and trauma as a consequence of
the injuries.
b) Loss of amenities (and/or loss of prospects of marriage).
c) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), iii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent -17- disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
We shall now consider whether the compensation awarded to the petitioner is just and reasonable or he is entitled to enhanced compensation under any of the following heads:
i) Loss of earning and other gains due to the amputation of leg.
ii) Loss of future earnings on account of permanent disability.
iii)Future medical expenses.
iv)Compensation for pain, suffering and trauma caused due to the accident.
v) Loss of amenities including loss of the prospects of marriage.
vi)Loss of expectation of life.
Hon'ble Supreme Court in Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has further observed as under:
"In this view of the matter, in our view, it would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, the court has to arrive at a reasonable estimate on the basis of the evidence brought on record."
"After the aforesaid judgment, the cost of living as also the cost of artificial limbs and expenses likely to be incurred for periodical replacement of such limb has substantially increased. Therefore, it will be just and proper to award a sum of Rs. 2,00,000/- to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing -18- on it will take care of the cost of artificial limb, fees of the doctor and other ancillary expenses."
"The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the Appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met awarding him a sum of Rs. 1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg."
"The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with one artificial leg. The Appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs. 1,50,000/- for the loss of amenities and enjoyment of life."
Pecuniary damages (Special damages):
-19-Vehicle of the injured/petitioner was permanently deployed in the school and the petitioner/injured was having permanent job and was a self employed person. He was aged about 30 years at the time of accident. Hon'ble Delhi High Court in Sajha Vs. National Insurance Co. 2010 ACJ 627 and New India Assurance Co. Vs. Raja Ram MAC. APP. No. 175/06 decided on 25.8.2009 held that keeping in view the trend of increase of minimum wages of semi skilled worker from time to time and rises in price index and inflation, it can be said that minimum wages of semi skilled worker would get almost double over a period of next ten years and thus future prospects should be given upon minimum wages also. In this regard the petitioner has relied upon the judgment of Hon'ble High Court in case titled Shiddhi Gopal Dixit Vs Siya Ram & Others reported in 2012 ACJ 165. Thus applying the formula given in these judgments, the monthly income of the petitioner can be held at Rs.5523/- (3682 + 50%).
As per the case of injured, he is completely disabled in relation to right upper limb and right lower limb to the extent of 45%. He is not working because being not capable of working and in that very nature of the things the functional disability is 100% more than 70% physical disability. Hence disability on injured in relation to right upper limb and right lower limb to the extent of 45%, is assessed to 100% functional disability. Counsel for the petitioner has cited judgment passed by Hon'ble Supreme Court of India titled as Raviraj Udupa Vs United India Insurance Co. Ltd. & Others 2012 ACJ 286 decided on 16.08.2011.
It is the claim of the petitioner that at the time of accident he as about 30 years of age with good health and physique and was earning more than Rs.8000/- per month besides other income I.e overtime, etc due to said accident the injured lost his income and got 70% which amounts to complete functional disability of 100%, permanent disability as the -20- petitioner would not be in a position to travel in a car and there is no question of driving by him. Moreover, he spent on his treatment and the same is still going on. His job profile has also been hampered/affected badly due to this accident. He is having his family to look after. He is still spending on his treatment and compelled to travel by auto or taxi to cover the distance and the said expenses will be a permanent expenses in future. The life of the petitioner has become hell due to the conduct of respondent No.1 & 2 besides severe economic loss. The income of petitioner has also affected and he would not be able to live a normal life and most likely he would be entirely dependent upon his parents/brothers and other relations. However, I take the disability to 90% functional disability as per the judgment of Hon'ble Supreme Court reported in 2012 STPL (Web) CC Cases 12 SC.
Petitioner in the petition described his age as 30 years on the date of accident as per the election I-Card and driving licence of the injured. Hence in view of decision of Hon'ble Supreme Court of India in Sarla Verma Vs. DTC 2009 ACJ 1298, multiplier of 17 has to be applied to count loss of earning capacity.
Petitioner is completely disabled in relation to right upper limb and right lower limb to the extent of 45% and was operated upon and as per medical record remain admitted in hospital w.e.f. 10.09.2007 (containing 76pages), 30.01.2008 to 01.02.2008 (containing 18 pages) and 02.04.2008 to 04.04.2008 (Containing 18 pages) collectively as Ex.PW2/1.
Medical record shows that he visited the doctors from time to time. In such situation, I am of the view that petitioner is required to be reimbursed the amount towards loss of income for the period of one year which comes to Rs.66,276/- (Rs.5523x12).
-21-As no deduction from income has to be taken towards personal expenses in case of injury as per decision of Delhi High Court in Bimla Vs. Gopal MAC. APP No. 1028/2006 decided on 22.3.2010 so the total loss of future income or earning capacity comes to Rs. 10,14,022.80 paise as per the formula (5523 X 12 X 17 X 90%). Accordingly petitioner is granted loss of future income at Rs. 10,14,023/- (in round figure).
The petitioner has placed on record certain receipts and the medical bills which shows that he had incurred expenses of Rs.1,66,605/- upon medicines, tests etc.. No dispute regarding the correctness and genuineness of these bills is raised. Hence the petitioner is entitled to Rs.1,66,605/- towards the medical expenses.
Petitioner further averred that he spent on his treatment and the same is still going on. His job profile has also been hampered/affected badly due to this accident. He is having his family to look after. He is still spending on his treatment and compelled to travel by auto or taxi to cover the distance and the said expenses will be a permanent expenses in future. The life of the petitioner has become hell due to the conduct of respondent No.1 & 2 besides severe economic loss. The income of petitioner has also affected and he would not be able to live a normal life and most likely he would be entirely dependent upon his parents/brothers and other relations. There is no dispute with regard to the disability of the injured as well as the fact that his treatment will go on in further also. Hence, the petitioner / injured is entitled to Rs.25,000/- towards future medical expenses.
Special diet and conveyance charges:
No proof of spending upon conveyance and special diet is brought on record but it is a fact that normally in case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc is provided instead -22- of or in addition to the normal food. Accordingly I am of the view that maximum petitioner can be paid lump sum Rs. 20,000/- towards special diet and conveyance charges.
Non Pecuniary Damage:
Damages for pain, sufferings, fracture and trauma of amputation of limb, Hon'ble Supreme Court in case Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 held that, it is not possible for suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for quite a long period. It is not possible for the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the Appellant was a young man of 30 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, in my considered view following the above said judgment, I award a sum of Rs. 1,00,000/- in lieu of pain, suffering and trauma caused.
It can only be a matter of imagination as to how the injured will have to live for the rest of life with this functional disability of 90%. The injured can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. He is already a married man hence there is no question of the prospects of his marriage. Hence I award him a sum of Rs. 1,50,000/- for the loss of amenities and enjoyment of life.-23-
Insurance company has not raised any defence except the defence to the extent of damages. Admittedly as per the case of insurance company itself and as per the evidence on record notice u/o 12 Rule 8 CPC was duly served upon the respondents no.1 to produce driving license and permit of the offending vehicle. In response to that respondents no.1 and 2 have placed on record photocopy of driving licence and permit. Hence he was not a gratuitous passenger and insurance company is liable to make the entire payment to the injured.
In view of the above discussions this issue is decided in favour of petitioner and against the respondent by holding that he is entitled to get the following compensation from the respondent No.3:- Pecuniary damages (Special damages):
a) Medical expenses ------------------------Rs. 1,66,605/-
b) Future Medical Expenses --------------Rs. 25,000/-
c) Loss of future income etc. -------------Rs. 10,14,023/-
d) Special diet, conveyance etc............Rs. 20,000/-
e) Loss of Income for one year------------Rs. 66,276/-
Non-pecuniary damages (General damages):
f) 1. Pain and sufferings & trauma-----Rs. 1,00,000/-
e) 2. Loss of amenities & enjoyment of life--- Rs.1,50,000/-
____________________ Total : Rs. 15,41,904/-
ISSUE NO.3 : Relief Petitioner is entitled to a sum of Rs. 15,41,904/- paise alongwith interest @ 7.5%. from 23.01.2009 till the payment is made by -24- the insurance company within 30 days from the date of this award alongwith accrued interest. In addition to that the insurance company to pay a sum of Rs.50,000/- towards lawyer charges by making a cheque in the name of lawyer's Sh. V. K. Sharma, Enrl. No. D/236/79 and a sum of Rs. 20,000/- towards lawyer's charges by making a cheque in the name of lawyer Sh. Pramod Kumar, Enrl. No. D-3910/10 as per judgment of Hon'ble High Court of justice J.R. Midha.
Out of the total amount Rs.7 lakhs be kept in the form of FDR for a period of 5 years, Rs.3 lakhs be kept in the form of FDR for a period of 2 years and another Rs.2 lakhs for the period of one year in the form of FDR with liberty to the petitioner be awarded monthly interest from time to time. Out of the remaining amount be kept for future medical expenses alongwith accrued interest will be kept in the saving bank account of the injured with liberty to withdraw Rs. 6000/- per month towards actual extention till the amount deposited alongwith interest upto date is exhausted to the satisfaction of the identity of the injured by the bank manager concerned. FDR be not broken without the permission of this Tribunal and be renewed from time to time. No loan or advance be given against the FDR amount without the permission of this Tribunal. No ATM facility is being provided to the injured against the withdrawal of payment in cash. FDR be kept in the State Bank of India, Rohini branch. Ordered accordingly. File be consigned to Record Room.
Announced in the open (D.K.MALHOTRA)
Court on 10.04.2012 JUDGE, MACT (OUTER-II)
DELHI
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MACT No.: 583/10
10.04.2012
Present: Counsel for the petitioner.
Respondents no.1 and 2 are already ex-parte.
Counsel for respondent no.3
Fina arguments heard.
Vide separate judgment dictated and announced in the open court, award is passed and petition is disposed off accordingly.
File be consigned to Record Room.
(D.K. MALHOTRA) JUDGE, MACT (OUTER-2) ROHINI COURTS, DELHI 10.04.2012