Delhi District Court
Sh. Lal Mani S/O Sh. Prem Chand vs Sh. Satya Narain S/O Sh. Inder Singh on 18 October, 2014
1
IN THE COURT OF MS. PREETI AGRAWAL GUPTA:
ADJCUMJUDGE MACT(NORTH): ROHINI: DELHI
Case No. 114/10
Unique Case ID No. 02404C0040962010
Sh. Lal Mani S/o Sh. Prem Chand
R/o99, Akash Ganga Apartment,
Pocket4, Sector24, Rohini, Delhi.
......Petitioner
Versus
1. Sh. Satya Narain S/o Sh. Inder Singh
R/o V& PO Kheri Sampa , District Rohtak,
Haryana.
2. Sh. Swaroop Singh S/o Sh. Chandgi Ram
R/o H.No. 435 & 694, Village Garhi Sampla,
District Rohtak, Haryana.
3. ICICI Limbard General Insurance Company Ltd.
5th Floor Birla Tower, Connaught Place, New Delhi.
....Respondents
DATE OF INSTITUTION : 19.02.2010: JUDGMENT RESERVED ON : 17.10.2014: DATE OF JUDGMENT: 18.10.2014: AWARD:
1. The petitioner has filed the present claim petition by way of the present petition under Section 166 and 140 of the Motor Vehicle Act seeking compensation for permanent disability caused by the accidental injuries sustained by the Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
2 petitioner. It is the case of the petitioner, as averred in the petition, that on the intervening night of 4/5.03.2009 at about 12.30 a.m., he was travelling in Car NO. UP17C7777 alongwith other occupants. The said car was driven by his driver at a very high speed, rashly and negligent and without caring the traffic rules. It is the case of the petitioner that when the car reached at Dividing Road of Sector 21 & 22, Rohini, Delhi then a truck bearing no. HR46L0612 started reversing the said truck in a negligent manner, without any indication. It is alleged that due to rash and negligent driving on the part of car driver as well as due to reversing of truck by its driver, in a negligent manner, without giving any indication or light, the car in which the petitioner was travelling, struck against the truck in question. As a result of forceful impact, the petitioner and other occupants of the car sustained fatal/grievous injuries. As regards the petitioner, it is alleged that he sustained serious head injuries, open compound fracture of frontal and orbital bone, serious facial injuries besides other grievous injuries on various part of his body thereby , making his unconscious. The petitioner was removed to Sanjay Gandhi Memorial Hospital by police officials. It is averred that the petitioner was shifted to Jaipur Golden Hospital by his father as his condition was Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
3 very critical at that time.
2. As per the claim, the petitioner is 33 years of age at the time of accident. It is the case before the court that the petitioner suffered multiple and grievous injuries due to the road accident and underwent prolonged treatment incurring a huge medical expenditure. The petitioner has claimed that he was self employed and earning a net income Rs. 34,000/ per moth but due to the accident in question, till date, he is unable to resume his work. It is averred that the petitioner has suffered mentally, physically as well as financially and has prayed for compensation for the permanent disability, pain and agony, conveyance, special diet and loss of income, etc. claim of Rs.10,00,000/ is claimed by the petitioner.
3. In the facts of the present case, date of accident is intervening night of 4/5.03.09 whereby on intimation of the accident by wireless operator, DD entry bearing no. 5B of PS Aman Vihar was recorded. The FIR No. 84/2009 under Section 279/338/304A IPC at PS Aman Vihar was registered against the deceased drivercumowner of the Hyundai Verna Car bearing no. UP17C7777 in which the petitioner was travelling. As per police case, the offending vehicle is the car bearing no. UP17C7777 in which the petitioner was travelling and the driver of the car was also Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
4 the owner of the car and the drivercumowner of the said car died in the accident itself. However, as per petition, both the car and truck involved in the accident have been alleged as offending vehicles. The claim has been filed and pursued against the truck bearing no. HR46L0612 as well as the car bearing no. UP17C7777 as offending vehicles and driver and registered owner of the truck in question, as respondents no. 1 & 2 respectively. The insurer/ insurance company of the alleged offending truck and the Hyundai Car in question is respondent no.3. Incidentally, the car involved in the accident in which the petitioner was travelling, was also insured with the same insurance company, as that of the truck. The drivercumowner ( through LRs) of the car have not been impleaded in the array of respondents. It is also not out of place to observe that the claims of other victims of the accident who are injured Ajay Vishwas, deceased Naveen Kumar (through his LRs), deceased Parvesh Kumar ( through his LRs), have already been settled on 18.10.12 and that of deceased Kuldeep ( through his L Rs) has been judicially settled on 28.02.2013. All the above detailed four claim petitions have been settled with the insurance company/respondent no. 3 as insurer of the offending vehicle as per police case which is the car in question. The Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
5 compensation stands paid, without dispute, by respondent no. 3 as insurer of the offending car bearing no. UP17C7777 It is the case of the insurance company alleging contributory/composite negligence upon the occupants of the car in question as six persons were travelling against allowed five occupants as per Motor Vehicle Rules. Therefore, am amount of Rs.80,000/ has been paid as compensation to injured Ajay Vishwas as sixth occupant of the car which has been deducted from the compensation payable to all other occupants/victims of the car in question. Hence, a sum of Rs. 16,000/ has been held as the deductable contributory amount payable by each of the victims in the road accident in question which shall be considered in the present claim petition also.
4. Accordingly, for the purpose of determination of this claim, the offending vehicle is alleged as both vehicles i.e. truck bearing no. HR46L0612 and the car bearing no. UP17C7777 The drivercumowner of the car in question is deceased and was shown as accused in the FIR bearing no. 84/09 arising out of the road accident in question and the car in question is the offending vehicle as per police case. However, it is the case of the petitioner that the Truck in question was being driven by respondent No. 1 in a rash, Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
6 negligent and reckless manner, as a result of which it hit the car in which the petitioner was travelling alongwith other occupants. It is also the case of the petitioner that the car in question was also being driven rashly and negligently, thereby causing the accident in question which resulted in grievous injuries resulting in permanent disability.
5. The respondent No.1 is the driver and the respondent No.2 is the owner of the offending vehicle/Truck bearing no. HR46L0612. They filed their written statement denying the alleged cause of the accident in question. It is however, admitted that the respondent No.1 is the driver and the respondent No.2 is the registered owner of the offending vehicle, which is stated to have been insured with respondent No.3/Insurance company for the relevant period of the accident. It is denied that the petitioner is entitled to get any compensation from the respondents and that respondent no. 1 & 2 have been falsely implicated in this case just to extort money from them. The respondent no. 1 & 2 have alleged that the car bearing No. UP17C7777 being driven by its driver at a very high speed and by driving it in wrong side, hit the rear side of the truck. The respondents no. 1 & 2 have further alleged that the truck was already being driven at a very slow speed and alleged that the Hyundai Verna Car Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
7 bearing no. UP17C7777 hit the truck due to rash and negligent driving of driver of Verna car. It is averred that the accident in question was not caused due to rash and negligent driving of driver of offending Truck No. HR46 L0612, thereby denying their liability. It is, however, averred that the alleged offending truck was duly insured with respondent no. 3/ insurance company.
6. The respondent No.3/Insurance Company filed written statement taking preliminary objection that it had no liability, in case of any statutory breach in terms of section 149 (2) Motor Vehicle Act. It is, however, not denied that both the involved vehicles i.e. the car and the truck in question , were duly insured with it as on the date of accident. It is alleged that the accident in question was caused because of rash and negligent driving on the part of the driver of the car in which the petitioner was travelling. The insurer has claimed deduction on account of alleged contributory /composite negligence of the petitioner. The claim of the petitioner has been denied and its own liability has also been denied.
7. From the pleadings of the parties, following issues were framed vide order dated 14.02.2011:
1. Whether the petitioner received grievous injuries in the road side accident caused on 4/5.03.2009, at dividing road of Sector21 & 22,Rohini, Delhi due to rash and negligent Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
8 driving of R1/driver of offending vehicle ( Truck)bearing registration No. HR46L0612?OPP.
2. Whether petitioner is entitled to compensation if so, to what extent and from which of the respondents? OPP
3. Relief.
8. The petitioner/injured appeared as PW1 and tendered his affidavit in evidence vide Ex. PW1/A, duly identifying his signatures thereupon. PW1 tendered in evidence the documents i.e. medical treatment record which are collectively exhibited as Ex. PW1/1 ( running in to 121 sheets), Medical bills collectively as Ex.PW1/2 ( running into 160 sheets), Medical certificates from doctors in respect of future treatment as Ex.PW1/3 & Ex.PW1/4 , copies of his income tax returns for the assessment year 200708 & 200809 as mark A & B ( affidavit Ex.PW1/A refers to the ITRs as Ex.PW1/5 & 6 which are being treated as marked documents as they were objected on the mode of admissibility.)
9. It is pertinent to mention that at the time of crossexamination, the court took notice of the claimed aspect of total hearing loss by the petitioner and therefore, the petitioner was allowed to read the questions written and shown by counsel for respondent for the purposes of recording crossexamination. The joint questionnaire of ld. Counsels for respondents has been taken up on record as Ex.PW1/R1 ( running into 4 sheets).
Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
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10. In crossexamination, witness has denied the suggestion that he has not been recommended future medical treatment of Ex.PW1/3 & Ex.PW1/4. The objection pertaining to the mode of proof shall be determined, as per facts of the case and law, hereinafter, at the time of consideration of the claim in discussion in issue no. 2. PW1 has also denied the suggestion that future medical estimates are false and fabricated or that bills of accue pressure are false and fabricated. PW1 further denied the suggestion that he has not suffered any permanent disability.
11. The handwritten questions Ex.PW1/R1 have been put to the witness to which the petitioner deposed that there were six people in the car / Hyundai Verna bearing no. UP17C7777 which was being driven by Sh. Pramod Rana. PW1/petitioner was crossexamined about the mannerism and purpose of travelling in the car with the suggestion that the petitioner alongwith five other persons were travelling in the Hyundai Car to follow antisocial elements which has been admitted. The witness has further volunteered that there were two eve teasers who were troubling the passer by ladies to which the petitioner protested and accompanied other people to dissuade and catch hold of the trouble makers. He explained that he was travelling in car bearing Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
10 no. UP17C7777 accordingly. PW1 deposed that he was sitting on the back seat behind the driver and admitted that the concentration of all the occupants of the car was towards catching the eve teasers. However, PW1/petitioner has denied the suggestion in question no. 5 that the car in which he was travelling was being driven rashly and negligently. The witness has volunteered that the offending truck was reversing without switching on the tail lights or giving any indication and hit the car in which he was travelling. The witness has denied the suggestion that the car driver was driving on the wrong side of the road or that the accident did not occur due to rash and negligent driving of the offending truck.
12. The petitioner as PW1 was further crossexamined on the aspect of alleged income and alleged expenses incurred on his medical treatment. The petitioner deposed that that he was working with Secure Life Insurance Company but did not have Identity Card. The petitioner explained that work of insurance agent involves commission work on the basis of clients solicited by an agent and there was no employment card or identity card. The petitioner was specifically cross examined about his nature of work to which petitioner deposed that he used to work with a corporate agent Secure Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
11 Life which was an agent of Reliance Life insurance company, at the relevant time. The petitioner admitted that he was not getting any commissions as his licence has been revoked and that the commissions were taken by the Corporate Agent only. Witness has denied the suggestion that he was receiving any commission from his past policies bookings. He denied that he did not file any ITRs for the years 20032004, 200405, 200506 & 200809.
13. During further crossexamination on the aspect of medical treatment, PW1/petitioner has deposed that while in hospital, his mother was withdrawing money from her joint account with him. He further deposed that substantially, medical expenses have been borne in cash. PW1 has further deposed that his younger sister Neeraj suggested to his wife about a good accupressure expert at Okhla,namely Dr. M.J.Akbar and he went for his treatment for four months expecting recovery of his hearing loss and difficulty of legs but when no recovery was shown and he discontinued the treatment. He further explained that, though, the consultation of Dr. Sushil Bhasin was higher, he was paying Rs. 500/ per visit on compassionate ground.
14. Further, petitioner as PW1 denied contrary suggestion put to him and supported the averments in his Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
12 chief examination vide affidavit Ex.PW1/A. PW1 /petitioner denied that the accident in question was caused due to negligence of the car in which he was travelling and denied that he did not incur the claim expenditure on various heads.
15. The second witness examined by the petitioner is Dr. Smita Gupta who is an ENT at Sant Parmanand Hospital, Delhi. She has appeared in the witness box to depose in respect of certificate dt. 13.03.2013 issued by her to the petitioner who was under her treatment for hearing loss following head injuries and has tendered her certification of Ex.PW1/3 and duly identified her signatures thereupon. In her chief examination, PW2 has deposed that the petitioner did not show any improvement even after 6to 8 months of treatment for hearing loss and advised him to go for cochlear implant surgery. She has deposed regarding the approximate costs of implant and maintenance thereof.
16. PW2 was crossexamined at length, jointly by counsel for respondents on the aspect of reliability of the opinion of the deposing doctor as regards issuance of Ex.PW1/3. PW2 admitted that the petitioner did not visit her for any further treatment or evaluation after the issuance of her opinion while Ex.PW1/3. She was crossexamined about her experience or personal knowledge about any cochlear Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
13 implant performed on an adult and about its success rate. PW2 admitted that she did not have knowledge about any known case of post traumatic cochlear implant performed in India on an adult. She also explained that cochlear implants were generally performed on young children of age group 4 to 6 years in cases of genetic deafness. PW2 also deposed that certificate Ex.PW1/3 was not final evaluation of possibility of cochlear implant upon the patient which could only be recommended after further detailed evaluation associated with clinical diagnosis.
17. PW3 Dr. Deepika Sethi, specialist ENT, Ambedkar Hospital, as a summoned witness being member of medical board which examined the petitioner for assessment of his permanent disability. The disability certificate issued to the petitioner is proved as Ex.PW3/A after identifying the signatures of the members of the board and the petitioner. It is deposed that the petitioner was opined as post traumatic partial optic Atrophy with macular scarring with 40 % visual impairment with 100 % hearing impairment involving both ears. As per disability certificate, the patient has also suffered 50% neurological impairment. In crossexamination, the medical witness admitted that neurological impairment of the Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
14 petitioner has led to visual and hearing impairment. She has tendered the details of medical parameters as Ex.PW3/B.
18. PW4 SI Karamvir has appeared from PS Aman Vihar to tender the summoned record pertaining to the charge sheet in the road accident in question. The certified copies of charge sheet has been tendered as Ex.PW4/1. PW4 deposed that the charge sheet was filed against deceased Pramod Rana U/s 279/338 /304A IPC, as abated as the accused died in the road accident in question. With leave of the court, PW4 has been crossexamined by counsel for petitioner itself for putting the suggestion pertaining to involvement of the offending truck in the road accident in question. The witness denied any knowledge regarding the investigation as he was not the |IO.
19. Vide orders of the court, petitioner's evidence was thereafter, closed. Both counsels for respondents no. 1& 2 as well as counsel for R3/ insurance company did not wish to lead any respondents evidence.
20. The court has duly heard the Ld. Counsel for the petitioner and respondents and has also duly appreciated the pleadings and material on record along with the evidence tendered before the court.
21. The issues in the petition are being adjudicated as Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
15 under:
ISSUE NO 1: Whether the petitioner received grievous injuries in the road side accident caused on 4/5.03.2009, at dividing road of Sector21 & 22,Rohini, Delhi due to rash and negligent driving of R1/driver of offending vehicle ( Truck)bearing registration No. HR46L0612?OPP.
22. According to the petitioner, the accident was caused by rash and negligent driving by respective drivers of the car bearing no. UP17C7777 in which he was travelling as well as the Truck bearing no. HR46L0612. The petitioner /injured in his evidence of affidavit as PW1 has specifically testified that the respondent no. 1 was driving the alleged offending truck, aforedetailed and that he started reversing the truck in a negligent manner, without any indication, thereby colliding with the afore detailed car in which the petitioner was travelling. It is deposed that the car in question was also being driven by its drivercum owner, in a rash and negligent manner due to which the two said vehicles collided and as a result of the impact, the petitioner and other occupants of the car sustained serious/grievous injuries. The drivercumowner of the car in question, died in the same road accident due to the impact.
23. As per criminal case record, FIR No.84/09 U/s Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
16 279/338/304A CPC was registered in respect of the accident in question against the said car involved in the accident wherein the accused Pramod Kumar Rana who died in the road accident in question. The charge sheet has been filed in the FIR against the deceased drivercumowner Pramod Kumar Rana, as abated. As per record, both the Verna Car bearing no. UP17C7777 and the truck bearing no. HR46 L0612 were seized during investigation on registration of the FIR for the road accident in question. The driver/respondent no. 1 was already expired and hence, not arrested.
24. The petitioner has tendered his affidavit as Ex. PW1/A and his testimony is consistent and supporting the averments in the claim petition. He has been crossexamined, at length. The crossexamination of the petitioner was conducted after a questionnaire was prepared on behalf of counsel for respondent which forms part of record as Ex.PW1/R1. The petitioner suffered total loss of hearing but was capable and competent to give clear answers during crossexamination which were accordingly, recorded. During crossexamination, petitioner as PW1 admitted that there were six persons travelling in the offending car bearing no UP17C7777, which was being driven by deceased Pramod Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
17 Rana. PW1 has categorically admitted that all the occupants of the car in question were concentrating on apprehending the eve teasers whom they were following. It is, reiterated, that the alleged offending truck was being driven rashly and negligently by reversing the same, without any indication. As such, the testimony of the petitioner as PW1 is consistent and supports the averments in the petition.
25. On the aspect of "rash and negligent driving"law has been well settled in this regard. The Hon'ble High Court of Delhi in National Insurance Company Ltd. Vs. Gita Bindal & Ors. in MAC APP. No. 179/2004 vide judgment dt. 12.10.2012 has passed binding guidelines on the principle of "Doctrine of Res Ipsa Loquitur". The Hon'ble High Court of Delhi have been pleased to discuss the law of Res Ipsa Loquitur and has been pleased to summarize the principles.
It has been held that "Res ipsa Loquitur means that the accident speaks for itself. In such cases, it is sufficient for the plaintiff to prove the accident and nothing more". ...
It has been further laid down that"Res ipsa Loquitur is an exception to the normal rule that mere happening of an accident is no evidence of negligence on the Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
18 part of the driver. This maxim means the mere proof of accident raises the presumption of negligence unless rebutted by the wrongdoer." ...
It has been further observed that"in some cases considerable hardship is caused to the plaintiff as the ture cause of the accident is not known to him, but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident, but can not prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of res ipsa loquitur is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more." ...
It has been further appreciated that"the effect of doctrine of 'res ipsa loquitur' is to shift the onus to the defendant in the sense that the doctrine continues to operate unless the defendant calls credible evidence which explains how the accident of mishap may have occurred without negligence, and it seems that the operation of the rule is not displaced merely by expert evidence showing, theoretically, possible ways in which the accident might have happened without the defendant's negligence. The doctrine of 'res ipsa Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
19 loquitur, therefore, plays a very significant role in the law of tort and it is not the relic of the past, but the living force of the day in determining the tortuous liability."
26. The defence taken by the respondents no. 1 & 2 is that the respondent no. 1 that the alleged truck was already being driven at a very slow speed and alleged that the Hyundai Verna Car bearing no. UP17C7777 hit the truck due to rash and negligent driving of driver of Verna car and respondent no. 1 has been falsely implicated in the case. However, the averments of respondents no. 1 & 2 who are the driver and owner of the alleged offending truck in question, respectively are only to put forth a bald defence which is not substantiated or proved by any material or evidence on their behalf. In crossexamination of petitioner as PW1, specific suggestion has been put to the petitioner in this regard but the same was denied categorically by the petitioner.
27. It is the defence put forth by respondent no. 3/insurance company on the aspect of alleged contributory/composite negligence of the driver of the Verna car in question, in which the petitioner was travelling. Ld. Counsel for insurance company has placed reliance upon the police case and the charge sheet Ex.PW4/1 to contend that Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
20 there is absence of any proof to show the alleged rash and negligent driving of the truck in question. It is the case of insurance company /R3 that only the car in question has been impleaded as offending vehicle, as per investigation carried out consequent to the registration of the FIR in the road accident in question and that its driver who was the driver cumowner was himself deceased in the accident.
28. The averments in the petition and the deposition of the petitioner in Ex.PW1/A is unbreached and uncontroverted on the aspect of the occurrence of the accident and the involvement of the offending truck which hit the offending car in which the petitioner was travelling. The petitioner has categorically denied all suggestions that the accident did not take place due to negligent driving by the driver of the alleged offending truck who was reversing the same without any indication. The defence taken by respondents no. 1 & 2 that the accident did not take place due to rash and negligent driving of respondent no. 1 is not established. It is not denied that respondent no. 1 was the driver of the alleged offending truck bearing no. HR46 L0612 at the time of accident. It is also a proved case, as per charge sheet U/s 279/338/304A IPC in FIR No. 84/09, PS Aman Vihar in respect of the accident in question that the Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
21 alleged offending car bearing no. UP17C7777, driven by deceased Pramod Kumar Rana was being driven rashly and negligently at the time of accident. Both the vehicles have been seized during investigation, though, the truck in question is not the offending vehicle, as per police case. It is also relevant to note that the charge sheet has been filed abated as the driver of the offending car died in the accident.
29. There is nothing on record whether in evidence or otherwise to disbelieve the testimony of PW1 who is the petitioner/injured himself. The appreciation of entire material of criminal investigation record as produced by the PW4 as Ex.PW4/1 shows and proves that the offending car bearing no. UP17C7777, in which the petitioner was travelling, was being driven rashly and negligently by its deceased driver. Further, the unbreached testimony of the petitioner/himself as PW1, duly proves the alleged factum and manner of accident. PW1 has duly proved that the accident in question was also caused due to negligence of the offending truck involved in the accident which collided with the offending car in question. It is evidently established on record that the accident in question was caused by the collision between offending truck bearing no. HR46L0612 which was being driven by respondent no. 1 in a rash and negligent manner Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
22 and the offending car bearing no. UP17C7777 in which the petitioner was travelling alongwith other persons. It is proved that the petitioner sustained grievous injuries in the said road accident on the intervening night of 4/5.03.09 at about 12.30 a.m. at dividing road of Sector 21 & 22, Rohini, within the jurisdiction of PS Aman Vihar, thereby causing injuries upon the petitioner of the grievous nature which have led to permanent disability.
30. As regard the medical treatment record for the injuries suffered by the petitioner, the entire medical record has been placed which has been carefully appreciated. The medical record is not disputed. The discharge summary of the petitioner at Jaipur Golden Hospital forms part of the record which shows that the petitioner remained admitted in the abovesaid hospital from 05.03.2009 to 21.03.2009 where he was operated upon by the doctors for his head and facial injuries. It is the case of the petitioner that his regular medical treatment continued till June, 2012 and that had to undergo repeated hospitalisation at Jaipur Golden Hospital in June 2012. The disability certificate of the petitioner Ex. PW3/A is duly proved. It is duly established that the petitioner received injuries in the road accident caused by offending truck bearing no. HR46L0612 due to rash and Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
23 negligent driving by respondent no. 1. It is also established that the car bearing no. UP17C7777 was also being driven rashly and negligently by its deceased driver against whom the FIR was registered.
31. In the peculiar facts of the case, though, the issue has been framed against the involvement of the offending truck bearing no. HR46L0612, this court, in exercise of its inherent powers, finds it proper and in the interest of justice, to crystallize the actual proved facts of the accident, as the court of law.
32. The claim has been filed and pursued against the truck bearing no. HR46L0612 as well as the car bearing no. UP17C7777 as offending vehicles and driver and registered owner of the truck in question, as respondents no. 1 & 2 respectively. The insurer/ insurance company of the alleged offending truck and the Hyundai Car in question is respondent no.3. Incidentally, the car involved in the accident in which the petitioner was travelling, was also insured with the same insurance company, as that of the truck. The drivercumowner ( through L Rs) of the car have not been impleaded in the array of respondents. It is also not out of place to observe that the claims of other victims of the accident who are injured Ajay Vishwas, deceased Naveen Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
24 Kumar ( through his L Rs), deceased Parvesh Kumar ( through his L Rs), have already been settled on 18.10.12 and that of deceased Kuldeep ( through his L Rs) has been judicially settled on 28.02.2013. All the above detailed four claim petitions have been settled with the insurance company/respondent no. 3 as insurer of the offending vehicle as per police case which is the car in question. The compensation stands paid, without dispute, by respondent no. 3 as insurer of the offending car bearing no. UP17C7777 It is the case of the insurance company alleging contributory/composite negligence upon the occupants of the car in question as six persons were travelling against allowed five occupants as per Motor Vehicle Rules. PW1 has admitted, in crossexamination, that six persons were travelling in the car in question. Therefore, an amount of Rs. 80,000/ which has been paid as compensation to injured Ajay Vishwas as sixth occupant of the car which is the least value compensation, is liable to be deducted from the compensation payable to all other occupants/victims of the car in question. Hence, a sum of Rs. 16,000/ shall be liable to be the deductable contributory amount from the share of the petitioner. Subject to this deduction of Rs. 16,000/, petitioner has duly proved his case to claim compensation as Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
25 "third party" for the accident suffered by him due to rash and negligent driving of respondent no. 1 of the offending truck and also of the deceased drivercumowner of the offending car. Although, L Rs of deceased drivercumowner are not granted opportunity to contest the claim but owing to the fact of the same insurance company of both the involved vehicles, no prejudice shall be caused adversely to the interest of non parties. Hence, the issue as above discussed stands adjudicated in favour of the petitioner and against the respondents.
ISSUE NO.2:
Whether petitioner is entitled to compensation if so, to what extent and from which of the respondents? OPP
33. The court is now to decide on quantum of compensation i.e. payable to the petitioner and is to ascertain and decide such compensation i.e. just and reasonable in the facts and circumstances of the case.
19. The guiding principles for assessment of "just and reasonable compensation" in injury cases has been laid down by Hon'ble Delhi High Court, in III (2007), ACC 676 titled as Oriental Insurance Co,. Ltd., Vs. Vijay Kumar Mittal & Ors that: " The possession of one's own body is Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
26 the first and most valuable all human rights and while awarding compensation for bodily injuries this primary element is to be kept in mind. Bodily injury is to be treated and varies on account of gravity of bodily injury.
Though it is impossible to equate money with human suffering, agony and personal deprivation, the Court and Tribunal should make an honest and serious attempt to award damages so far as money can compensate the loss. Regard must be given to the gravity and degree of deprivation as well as the degree of awareness of the deprivation. Damages awarded in personal injury cases must be substantial and not token damages".
34. It has been further held by the Hon'ble High Court that:
"the general principle which should govern the assessment of damages in persons injury cases is that the Court should award to injured persons such a sum as will put him in the same position as he would have been in the same position as he would have been in if he had not sustained injuries".
35. In the road accident in question, in the facts of the case, the petitioner has suffered permanent disability vide disability certificate Ex.PW3/A, in respect of hearing impairment involving both ears to the extent of 100 %, visual disability involving both eyes to the extent of 40% and has Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
27 also suffered from 50% neurological impairment. The disability certificate Ex.PW3/A has been issued by the medical board of duly competent Government hospital and the medical witness /ENT specialist doctor has been examined before the court as petitioner's witness as PW3. However, PW3 has expressed her inability to certify the whole body disabled of the petitioner and the effect of such disablement on the earning capacity of the petitioner. PW3 has also testified that the petitioner was assessed with the opinion on permanent disability after detailed evaluation tendered as Ex.PW3/B and that the neurological disability of the petitioner was the cause for hearing and visual disability.
36. In this light, this court is to decide and ascertain the effect of permanent disability on the actual earning capacity of the petitioner. We have to examine the impact of the permanent disability suffered by the petitioner upon his functional capacity. The functional aspect of a human being covers both aspects of personal well being and capacity to earn. Admittedly, the medical opinion in respect of medical disability of the petitioner does not refer to "whole body disablement" and also does not take into account loss of earning capacity of an individual. The Hon'ble Apex Court in Raj Kumar Vs.Ajay Kumar & Anr. 2011, ACJ, 1 SC and Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
28 has laid down binding guidelines for ascertainment of the effect of the permanent disability on the actual earning capacity of an individual.
37. The court has taken into account the guidelines applicable in the facts of the present case. The petitioner has claimed that he was working as Insurance Agent, at the time of accident and was earning Rs.34,000/ per month out of the said work. As such, no documents or material has been put forth in respect of the work, employment or nature of engagement of the petitioner. PW1 has deposed that he was working with a corporate agent as commission agent of a life insurance company and that the petitioner was receiving commissions through the corporate agent. There was no fixed salary or remuneration and nothing pertaining to bank account of the petitioner has been shown to prove regular receipt of any fixed income out of the insurance agent work. Even, on the aspect of medical expenses, petitioner has deposed that his mother was withdrawing money to meet the expenses from the joint account held by her with him and that substantial medical expenses were borne by cash. In this backdrop, there is no reliable evidence to prove the claimed income of the petitioner.
38. The material and evidence on record has been Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
29 examined which shows that the petitioner was aged 33 years at the time of accident. The finding of age is supported by documents of income tax and educational qualifications. The petitioner has filed copy of ITR of financial year 20022003 showing net income of Rs. 1,07,000/ ( approx.) and that of ITR of financial year 2006 2007 with net income of Rs. 2,26,000/ ( approx.) Admittedly, no ITR for intervening years has been shown and no ITR for financial year 20082009 which is the relevant year of accident which took place on 4/5.03.2009, has been filed. Even the ITRs relied upon by the petitioner are only marked copies but are being considered to assess the factum of earning of the petitioner. The claimed income and ITRs are strongly disputed by respondents. However, keeping in view the age of the petitioner who was 33 years as an educated young man, the ITRs filed by the petitioner are considered reliable by the court for arriving at computation of just and proper compensation payable to the petitioner for loss of earnings. It is to be considered that no intervening income tax returns between 20022003 to 20072008 have been filed to presume that the petitioner had regular income. Therefore, to make a reasonable assessment, average earnings of the two ITRs are computed and the annual income of the petitioner is Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
30 assessed at Rs. 1,66,500/.
39. As regards the functional capacity, the petitioner has been rendered permanently disabled with total hearing loss , partial visual loss and neurological impairment. He is, however, an able bodied man who is able to comprehend and communicate for the purpose of his necessary functions of life and definitely, petitioner would not be able to perform the same quality of work for gain and earning as he was engaged with prior to the disability. Therefore, looking into the age of petitioner as 33 years and the nature of work, it is reasonable to assume that the petitioner would have suffered capacity of earning. It is also established that the disability certificate assessment of the petitioner does not certify whole body disablement, therefore, it is considered appropriate, proper and reasonable to assess the functional loss of capacity to earn of the petitioner by taking an average of different disabilities that have been opined. Since, the total hearing loss is 100%, visual impairment is 40 % and neurological impairment is 50%, the whole body functional capacity loss of the petitioner = 100% + 40%+50% divided by 3 and comes 63.999%. The petitioner is accordingly, granted loss of functional earning capacity assessed as 65% (after rounding off in favour of the petitioner). Hence, loss Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
31 of functional capacity of petitioner for the purposes of computation of loss of earning capacity shall be taken as 65 %.
40. The law of the land clearly lays down the principles of just and proper computation of compensation on account of loss of income after duly considering the future prospects of the deceased, as per the uniform multiplier schedule laid down in Sarla Verma's Case(Supra). In the present case, as afore discussed, the Annual income of the deceased has been assessed at Rs. 1,66,500/ per annum.
41. It is further relevant to take into consideration the law laid down by Hon'ble Supreme Court in case titled Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., SLP (C) No. 8648 of 2007, wherein it has been held that the claimants shall be entitled to addition on account of future prospects depending upon the facts of each case. Uniform guidelines have been laid down for computation of addition on account of future prospects depending upon the age of the deceased/disabled and nature of employment of the victim. The law has been further developed in by Hon'ble Supreme Court in its latest judgment in Santosh Devi Vs. National Insurance company Ltd. and ors. in Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
32 Civil Appeal NO.,. 3723 of 2012 arising out of SLP (C) No. 24489 of 2010. The Hon'ble Bench of Supreme Court has observed that aspect of future prospects shall be a relevant consideration in computation of just and proper compensation even in cases where the deceased was self employed or on a fixed salary without provisions for annual increments etc. The Hon'ble Supreme Court in Santosh Devi's case (Supra) allowed the addition of 30 % on account of future prospects in such cases.
42. The Hon'ble Supreme Court has been pleased to revisit the computation on account of future prospects, further developing the principle laid down in Santosh Devi's case ( Supra). The Hon'ble Apex Court has held in the latest binding law laid down by the Hon'ble Supreme Court in Rajesh & Ors. Vs. Rajbir Singh & Ors.; 2013 ( 6) SCALE ( pronounced by the Hon'ble Apex Court vide orders dt. April 12, 2013 ). "In the case of self employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects..... Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
43. This legal position has been appreciated and Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
33 applied in various precedents by our own Hon'ble High Court of Delhi and hence is binding upon this Court. In the present case, as afore discussed, the annual income of the petitioner has been assessed at Rs. 1,66,500/ per annum. The petitioner was a young active person of 33 years of age at the time of the accident. The addition on account of future prospects shall be 50% of the income of the petitioner as the petitioner was having bright future prospects and was very young. Accordingly, the monthly income of the petitioner after accounting future prospects comes out to Rs. 2,49,750/ (Rs. 1,66,500/ + 50 % of Rs. 1,66,500) which is rounded off to Rs. 2,50,000/
44. The permanent disability is treated at par with the death in order to calculate the amount of compensation in accordance with the extent of disability qua the whole body. Accident took place in the. The age of the petitioner is 33 years as proved. Hence in view of the decision of Hon'ble Supreme Court given in Sarla Verma vs. DTC 2009 ACJ 1298, multiplier of 16 has to be applied to compute his loss of earning capacity. Hence the total loss of earning capacity comes to Rs. 26,00,000/ as per the formula(Rs. 2,50,000 x16 x 65%). Accordingly petitioner is granted loss of Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
34 earning capacity at Rs. 26,00,000/. (Rupees Twenty Six Lakhs only)
45. The treatment of petitioner has been done at Jaipur Golden, Hospital Delhi. Perusal of medical record Ex.PW1/1 reveals detailed treatment undergone by the petitioner wherein he was hospitalised twice. The petitioner underwent hospitalisation at Jaipur Golden Hospital from the date of accident i.e. 05.03.2009 to 21.03.09 and again in June,2012. The petitioner has also claimed that he took accue pressure sessions on advise of a relative for 4 to 5 months but discontinued on seeing no improvement. The medical bills are collectively tendered as Ex.PW1/2. The medical treatment record and medical bills have been duly appreciated in detail. The claim of the petitioner for four bills each for Rs. 22,500/ issued by Akbar Nursing Home for alleged AccuPuncture treatment are hotly contested and denied by respondents as unreliable, inflated and unsupported by any medical advice. After duly considering the volume of medical treatment and medical expenses incurred by the petitioner, his medical expenses of Rs. 6,00,000/ have been duly proved and supported by material and duly proved bills on records. Therefore, petitioner is entitled to compensation of Rs. 6,00,000/ towards Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
35 medical expenses.
46. The claim has also been pressed for future medical expenses with the contention that the petitioner has been recommended for cochlear implant to cure him from disability of hearing loss. In this regard, PW2 has been examined who has tendered and supported a future medical estimate for cochlear implant surgery. However, the testimony of PW2 does not inspire confidence of the court as the opinion of PW2 is not supported by any medical protocol to show any successful case of cochlear implant upon an adult who has suffered hearing loss due to an accident. PW2, during crossexamination, deposed that the petitioner did not undergo detailed evaluation to even form any opinion about feasibility of the recommended surgery. The claim of the petitioner for future medical treatment is not duly established.
47. The petitioner has further claimed that he had spent Rs.75,000/ on special diet and conveyance Rs. 50,000/. There has been no documentary or otherwise evidence to show the actual expenses against these heads as claimed by the petitioner. As it has already been established that the petitioner underwent detailed treatment for considerable period and in view of the nature of injuries, a Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
36 sum of Rs. 25,000/ granted towards special diet and in absence of any bills, another sum of Rs. 25,000/ is granted towards conveyance. The petitioner has also claimed attendant charges but the same is disallowed as not supported by any reliable document or material.
48. In addition to the above assessment against various entitled heads of pecuniary damages, the petitioner is also entitled to nonpecuniary damages. After taking into account of the relevant facts, the Hon'ble Supreme Court of India has held in case Raj Kumar Vs.Ajay Kumar & Anr. 2011, ACJ, 1 SC, that "when compensation is awarded by treating the loss of future earning capacity as 100 % ( or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be award under the head of loss of amenities or loss of expectation of life , as otherwise there may be a duplication in the award of compensation."
49. In view of the binding latest authority of the Apex Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
37 court which lays down the law of the land, the petitioner will still be entitled to nonpecuniary damages under the head of compensation of pain and suffering. Though, nonpecuniary loss can not be assessed in terms of money, the petitioner is granted an amount of Rs. 1 lac towards pain and suffering, inconvenience, mental shock and trauma as a consequences of injuries. It is duly considered that the petitioner has suffered enjoyment of life and limitation in available opportunities in view of suffered permanent disability, a consolidated sum of Rs. 1 lac is also granted towards damages owing to permanent disability and loss of amenities.
50. Thus, the total compensation payable to petitioner is detailed as below:
Pecuniary Head:
1. Loss of earning capacity. Rs. 26,00,000/
2. Medical expenses. Rs. 6,00,000/
3. Special diet , Conveyance & Attendant Charges Rs. 50,000/ NonPecuniary Head:
4. Pain and sufferings Rs. 1,00,000/
5. Loss of damages owing to disability & loss of amenities of lifeRs. 1,00,000/ Total compensation Rs. 34,50, 000/
52. So far as the liability to pay compensation is concerned, it is to be considered that the claim has been filed Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
38 and pursued against the truck bearing no. HR46L0612 as well as the car bearing no. UP17C7777 as offending vehicles and driver and registered owner of the truck in question, as respondents no. 1 & 2 respectively. The insurer/ insurance company of the alleged offending truck and the Hyundai Car in question is respondent no.3. Incidentally, the car involved in the accident in which the petitioner was travelling, was also insured with the same insurance company, as that of the truck. The drivercum owner ( through L Rs) of the car have not been impleaded in the array of respondents. It is also not out of place to observe that the claims of other victims of the accident who are injured Ajay Vishwas, deceased Naveen Kumar ( through his L Rs), deceased Parvesh Kumar ( through his L Rs), have already been settled on 18.10.12 and that of deceased Kuldeep ( through his L Rs) has been judicially settled on 28.02.2013. All the above detailed four claim petitions have been settled with the insurance company/respondent no. 3 as insurer of the offending vehicle as per police case which is the car in question. The compensation stands paid, without dispute, by respondent no. 3 as insurer of the offending car bearing no. UP17C7777.
53. It is the case of the insurance company alleging Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
39 contributory/composite negligence upon the occupants of the car in question as six persons were travelling against allowed five occupants as per Motor Vehicle Rules. PW1 has admitted, in crossexamination, that six persons were travelling in the car in question. Therefore, an amount of Rs. 80,000/ which has been paid as compensation to injured Ajay Vishwas as sixth occupant of the car which is the least value compensation, is liable to be deducted from the compensation payable to all other occupants/victims of the car in question. Hence, a sum of Rs. 16,000/ shall be liable to be the deductable contributory amount from the share of the petitioner. Subject to this deduction of Rs. 16,000/, petitioner has duly proved his case to claim compensation as "third party" for the accident suffered by him due to rash and negligent driving of respondent no. 1 of the offending truck and also of the deceased drivercumowner of the offending car. Although, L Rs of deceased drivercumowner are not granted opportunity to contest the claim but owing to the fact of the same insurance company of both the involved vehicles, no prejudice shall be caused adversely to the interest of non parties.
54. Accordingly, in view of the discussion herein above, respondent no. 3/insurance company is liable to pay Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
40 compensation of the petitioner as insurance of both the offending vehicle involved in the road accident in question which led to grievous injuries resulting in permanent disability of the petitioner. Further, an amount of Rs. 16,000/ shall be deducted from the total amount of award payable by respondent no. 3 to the petitioner by way of this award.
RELIEF:
55. In view of the afore given reasons and findings, the petitioner is entitled to compensation in the sum of Rs. 34,50,000/ (Rupees Thirty four lakhs fifty thousand only) along with interest @ 9 % per annum from the date of institution of present petition till its realization. The amount so calculated be deducted with a sum of Rs. 16,000/ towards composite /contributory share of the petitioner.
56. Out of the awarded amount, in terms of the guidelines issued by Hon'ble Supreme Court of India in "General Manager, Kerala State RTC Vs. Mrs. Susamma Thomas and others" for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation, the amount is to be disbursed in favour of the petitioner accordingly. Out of the awarded amount, 75% Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
41 of the compensation along with proportionate interest shall be held in fixed deposits for a period of two, four, six, eight and ten years in equal proportions, in favour of the petitioner. Rest 25% along with proportionate interest be released to the petitioner.
57. The FDRs shall have no facility of loan or advance. Petitioner can withdraw the interest monthly/quarterly. The FDRs will not be encashed without permission of the court.
58. In view of the aforesaid findings and in terms of the award /order of this court, the petition is disposed off in aforesaid terms. Respondent no. 3/Insurance Company is directed to deposit the cheques in the name of the petitioner/claimant within 30 days before this Tribunal. Respondent No.3 is also directed to furnish certificate of TDS, if applicable. File be consigned to Record Room.
ANNOUNCED IN THE (PREETI AGRAWAL GUPTA)
OPEN COURT PO,MACT1 CumADJ1
th
On 18 day of October 2014. Cum Designated LAC Court, NORTH,ROHINI, DELHI A Miscellaneous file is directed to be prepared for the purposes of realisation of the award in favour of the petitioners.
(PREETI AGRAWAL GUPTA) PO,MACT1 CumADJ1 Cum Designated LA Court, NORTH,ROHINI, DELHI Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
42 Suit no. 114/10 18.10.2014:
Present: None.
Vide separate judgment, award is passed in favour of petitioner to a sum of Rs. 34,50,000/ (Rupees Thirty four lakhs fifty thousand only) as compensation along with interest @ 9 % per annum from the date of filing of present petition till its realization.The amount so calculated be deducted with a sum of Rs. 16,000/ towards composite /contributory share of the petitioner. Respondent no. 3/insurance company is directed to deposit the cheques in the name of the claimant within 30 days before this Tribunal. Petition is disposed off accordingly.
File be consigned to Record Room.
(PREETI AGRAWAL GUPTA) PO,MACT1 CumADJ1 Cum Designated LA Court, NORTH,ROHINI, DELHI A Miscellaneous file is directed to be prepared for the purposes of realisation of the award in favour of the petitioners.
Naib Nazir directed to make an entry in the realisation register and place the miscellaneous file before the undersigned Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.
43 for disposal and consignment to the record room on receipt and disbursement of the compensation, as per award.
Miscellaneous file to come for further proceedings for 22.11.2014. Parties to appear.
(PREETI AGRAWAL GUPTA) PO,MACT1 CumADJ1 Cum Designated LA Court, NORTH,ROHINI, DELHI Case No. 114/10 Lal Mani Vs.Satya Narain & Ors.