Delhi District Court
1 Phool Mehta vs . Shakir on 26 November, 2011
1 Phool Mehta Vs. Shakir
IN THE COURT OF SHRI SANJIV JAIN PO : MACT : SOUTH DISTRICT
SAKET COURTS : NEW DELHI.
In Suit No. : 4/11
1. Smt. Phool Mehta
W/o Sh. Arjun Dev Mehta
R/o Bhagwat Dham (Vridh Ashram/Old Age Home)
Pocket3, Chilla Road,
Mayur Vihar PhaseI,
Delhi ...... Petitioner
Versus
1. Sh. Shakir
S/o Sh. Jamil
R/o E498328 M
Gali No. 19, Janta Colony,
Welcome, Delhi.
2. Sh. Sunil
S/o Shri Tilak Raj
R/o Q. No. 1773, Govt. Quarters,
Timar Pur, Delhi.
3. The United India Insurance Co. Ltd.
Micro Office Shyam Colony
Opp. Garg Hospital,
Safidon, Jind Haryana
And also at
Opp. PNB Railway Road, Safidon,
Distt. Jind, Haryana.
......(Respondents)
Suit No. : 4/11 1/ 15
2 Phool Mehta Vs. Shakir
Date of Institution : 03.01.2011
Date of reserving of judgment/order : 09.11.2011
Date of pronouncement : 26.11.2011
J U D G M E N T :
1. This petition U/s 166 & 140 Motor Vehicle Act, 1988 as amended upto date has been filed by Smt. Phool Mehta claiming a compensation of Rs. 15,00,000/ for the injuries sustained by her in an accident on 08.11.10 at about 8.15 AM in front of police station Defence Colony, Mool Chand underpass, ring road.
2. Briefly the facts as stated in the petition are that on 08.11.2010 at about 8.15 AM the petitioner alongwith her husband was going to Munirka in an auto rickshaw bearing no. DL 1R K 2503 being driven by respondent no.
1. When they reached in front of P.S. Defence Colony, Mool Chand under pass ring road, respondent no.1 hit his TSR against an Innova car bearing no. DL 7C G 2288 which was ahead of the TSR. Due to the forceful impact, the petitioner, her husband and the driver of the TSR sustained injuries. They were removed to Trauma Center, AIIMS where their MLCs were prepared. A case vide FIR 1138/10 at police station Defence Colony was registered. It was alleged that the accident had Suit No. : 4/11 2/ 15 3 Phool Mehta Vs. Shakir occurred due to rash and negligent driving by respondent no.1. It was stated that the respondent no.2 was the owner of the offending vehicle and it was insured with respondent no.3. It was stated that the petitioner was 70 years of age. She alongwith her husband have been living in an Old age home. ٍShe had been doing sewing and stitching work and earning Rs. 6000/ p.m. It was stated that due to the accident the petitioner suffered mental pain, agony, loss of income, loss of work and enjoyment etc.
3. Notice of the petition was given to the respondents.
4. Respondent no.3 filed its written statement denying its liability. However, it was admitted that the vehicle was insured in the name of respondent no.2 vide policy no. 112081/31/10/02/00003206 and it was valid from 22.01.10 to 21.01.11. It is pertinent to mention that after the investigation, a Detail Accident Report was also filed by the police of P.S. Defence Colony. On 06.12.10 the driver / owner had appeared in person but thereafter, they did not appear and were proceeded against Exparte vide order dated 30.04.2011.
5. From the pleadings of the parties following issues were framed vide order 30.04.2011 : Suit No. : 4/11 3/ 15 4 Phool Mehta Vs. Shakir
i) Whether the petitioner received injuries in road accident on 08.11.2010 at 0815 hrs. at Munirka, New Delhi due to rash and negligent driving of TSR bearing no. DL 1R K 2503 driven by R1, owned by R2 and insured with R3?
ii) To what amount the petitioner is entitled for and from whom?
iii) Relief.
6. The Parties were thereafter called upon to substantiate their case.
7. The petitioner appeared in the witness box as PW1 and tendered her affidavit Ex.PW1/A. She averred on the lines of main petition. She stated that she received multiple injuries and fracture in her leg. She was operated and plates and screws were inserted in her leg. She stated that twice her knee replacement was done and in future she needs knee replacement. She filed medical documents, prescriptions and medical bills Ex.PW1/1 to Ex.PW1/40. She also filed the record of criminal case. She examined Dr. Pradeep Sharma, Orthopedic Surgeon, Holy Family Hospital as PW2. He stated that he had attended the petitioner on 28.03.11 for the injuries sustained in a road traffic accident on 08.11.2010. She had supracondylar fracture of right femur and fracture left shaft humours. Because of the said accident in the right thigh, the Suit No. : 4/11 4/ 15 5 Phool Mehta Vs. Shakir alignment of right knee was disturbed which was replaced by him about 810 years before at Holy Family hospital. He stated that in order to get the right knee functional, he has to change her knee with a hinged right knee replacement after removing the old implant. He stated that this surgery is important because without it, the petitioner cannot walk or stand. In his crossexamination he stated that he had operated the petitioner earlier and at the time of operation the petitioner was complaining arthritis. He stated that before the accident the petitioner was fully mobile and when the petitioner came after the accident, her knee was totally dislocated. He stated that the dislocation of the knee was as a result of malalignment of right femeral fracture.
8. No witness was examined by the respondent.
9. I have heard the arguments advanced by Ld. Counsel Ms. Kanta Chaudhary, for the petitioner and Sh. B K Sharma for the insurance company.
10. My findings on the issues are follows :
I S S U E N o . 1
11. It is well settled law that where petition under Section 166 of the Act is Suit No. : 4/11 5/ 15 6 Phool Mehta Vs. Shakir instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal is simply to quantify the compensation which is just rational and reasonable on the basis of inquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs. New India Assurance Co. Ltd. 2001 ACJ 421 SC.
12. To prove this fact, the petitioner stepped into the witness box as PW1.
She stated that on 08.11.2010 at about 0815 hrs. she alongwith her husband was going to Munirka in an auto rickshaw bearing no. DL 1R K 2503. When they reached in front of P.S. Defence Colony, Mool Chand under pass ring road, the TSR which was being driven by respondent no. 1 hit the Innova car bearing no. DL 7C G 2288 which was ahead of the TSR. She stated that due to the forceful impact, she her husband and the driver of the TSR sustained injuries. They were removed to Trauma Center, AIIMS where their MLCs were prepared. She stated that the accident had occurred due to the rash and negligent driving by Suit No. : 4/11 6/ 15 7 Phool Mehta Vs. Shakir respondent no.1. She placed on record the proceedings of criminal case and final report of the case registered vide FIR 138/10 at police station Defence Colony, perusal of which reveals that the case was registered on the statement of the husband of the petitioner. From the statement, site plan and the testimony of PW1, I find that the TSR had hit the Innova car from behind which perse amounts to negligence on the part of the TSR driver i.e. respondent no.1. Nothing material came in the cross examination of PW1 to draw an inference that the accident did not occur due to the rash and negligent driving by respondent no.1. Hon'ble High Court of Delhi in case titled ''National Insurance Company Limited V/s Pushpa Rana'' reported as 2009 ACJ 287 has held that whenever criminal proceedings are placed on record on completion of investigation by the police, then that in itself is sufficient proof of the negligent driving of driver of the offending vehicle involved in the accident.
13. It is therefore, primafacie established that the petitioner sustained grievous injuries in the accident which occurred due to rash and negligent driving of offending vehicle by respondent no.1. It is an admitted fact on record that the respondent no.2 was the owner of the vehicle and it was insured with respondent no.3 insurance company. Thus, the issue no.1 is decided in favour of the petitioner and against the respondents.
Suit No. : 4/11 7/ 15
8 Phool Mehta Vs. Shakir I S S U E N o . 2
14. The petitioner has claimed Rs. 15,00,000/ as compensation in respect of the injuries sustained by her.
15. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages.
Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas 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 far as nonpecuniary 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." Suit No. : 4/11 8/ 15
9 Phool Mehta Vs. Shakir Let me assess the compensation which the petitioner is entitled for under different heads.
COMPENSATION FOR EXPENSES INCURRED ON MEDICAL TREATMENT
16. PW1 has stated that she sustained multiple injuries and fracture in her leg. She was operated and plates and screws were inserted in her leg. She stated that earlier her knee replacement was done but due to the accident it was dislocated, so, she would require knee replacement. Her testimony is corroborated by Dr. Pradeep Sharma, who was examined as PW2. She also filed the medical prescriptions, bills and other documents Ex.PW1/1 to Ex.PW1/40. It is seen from Ex.PW1/39 that the petitioner remained in the hospital from 08.11.2010 to 26.01.2011. The bills placed on record are of an amount of Rs. 77,378.28. Looking into the injuries and facts and circumstances of the case I award a sum of Rs. 80,000/ to the petitioner towards the expenses incurred on medical treatment.
COMPENSATION FOR PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE
17. Testimony of PW1 shows that she sustained multiple injuries. She was operated and plates and screws were inserted in her leg. Due to the Suit No. : 4/11 9/ 15 10 Phool Mehta Vs. Shakir accident her knee became dislocated which would need replacement. She remained in the hospital from 08.11.2010 to 26.01.2011. The injuries had given her lot of pain and sufferings. She is an old woman. Looking into the injuries and the circumstances, I award a sum of Rs. 30,000/ towards pain and sufferings.
COMPENSATION FOR SPECIAL DIET, ATTENDANT CHARGES AND CONVEYANCE CHARGES
18. PW1 has stated that due to the accident she remained in the hospital from 08.11.2010 to 26.01.2011. She is still on bed. She also attended the hospital as an outdoor patient. She also took the help of the attendant in her daytoday work. The special diet was advised to her for early recovery. She filed the bills in respect of the payment made to the attendant which are of Rs. 43,500/. She also filed the conveyance bills for Rs. 1,300/. Taking into consideration the multiple injuries and all the facts, I award a sum of Rs. 3,500/ towards special diet, Rs. 3,000/ towards conveyance and Rs. 43,500/ towards attendant charges. EXPENSES FOR ROTATING HINGE
19. PW1 has stated that due to the accident her life has become miserable.
Her knee replacement had already been done twice but due to the Suit No. : 4/11 10/ 15 11 Phool Mehta Vs. Shakir accident it was dislocated for which she would have to get another knee replacement which would cost about Rs. 6.0 lacs. PW2 who had attended the petitioner has stated that in the road accident the petitioner had sustained supracondylar fracture of right femur and fracture left shaft humours. The alignment of her right knee has been disturbed. In order to get it functional he would have to change knee with a hinged right knee replacement after removing the old implant for which she would need 10 days hospitalisation. He stated that without this surgery she would not be able to stand and walk and the entire cost of surgery including the hinge implant would cost Rs.4.0 lakh. He stated that before the accident she was fully mobile and earlier operation was not the cause of dislocation.
20. On going through the medical record and the testimony of PW1 and PW2, I find that the petitioner was fully mobile before the accident but after the accident her knee was totally dislocated which need to be changed with a hinged right knee replacement after removing the old implant. From the testimony of PW2 I find that she would be requiring 10 days hospitalisation and the approximate cost of surgery would be Rs. 4.0 lacs. After the surgery she would also require attendant, special diet for early recovery, as on now she is bed ridden. For the foregoing reasons, I award a sum of Rs. 4,00,000/ for the aforesaid surgery. The Suit No. : 4/11 11/ 15 12 Phool Mehta Vs. Shakir insurance company is directed to make the payment to the hospital directly on the estimate/bill to be submitted by the petitioner from time to time for her knee replacement surgery.
LOSS OF INCOME
21. The petitioner is aged about 74 years. After the accident she has become totally bed ridden. It has come in her testimony that she had been doing stitching/sewing work at her house but due to the accident she lost her work and as such she has no source of income. In this case the petitioner did not file any proof of income, however, considering her age a notional income of Rs. 15,000/ is taken for calculating the loss of income. I, therefore, award a sum of Rs. 15,000/ to the petitioner towards Loss of income.
22. Thus the total compensation awarded in favour of the petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 80,000/
PAIN & SUFFERINGS &
ENJOYMENT OF LIFE : Rs. 30,000/
SPEICAL DIET, ATTENDANT &
CONVEYANCE CHARGES : Rs. 50,000/
LOSS OF INCOME : Rs. 15,000/
TOTAL : Rs. 1,75,000/
Suit No. : 4/11 12/ 15
13 Phool Mehta Vs. Shakir
L I A B I L I T Y
23. As the offending vehicle was being driven by respondent No.1, therefore primary liability to compensate the petitioner is that of respondent No.1. As the offending vehicle was owned by respondent No.2, therefore, he becomes vicariously liable to compensate the petitioner. The offending vehicle was insured with respondent No.3, Insurance Company, therefore, respondent No.3, Insurance Company becomes contractually liable to indemnify the insured for the above mentioned awarded amount to the extent of liability of the insured.
24. In the instant case no evidence is brought by the Insurance Company to show that there was breach of any insurance policy by the Respondent No.2 or the Respondent No.1 was not having Driving License. Thus, I am of the view that Respondent No.3 i.e. Insurance Company is liable to pay compensation for the above awarded amount to the extent of liability to the insured.
R E L I E F
25. In view of my findings I award a sum of Rs. 1,75,000/ (Rs. One Lakh Seventy Five Thousand only) as compensation with interest @ 9% per annum from the date of filing the petition till the date of its realization in favour of the petitioner and against the respondent no.3 on account of its Suit No. : 4/11 13/ 15 14 Phool Mehta Vs. Shakir liability. The insurance company/respondent no.3 is further directed to make the payment directly to the hospital for her knee replacement surgery to be done in future on the estimate/bills to be submitted by the petitioner from time to time.
26. Respondent no.3, Insurance Company is directed to pay the awarded amount by way of cheque in favour of the petitioner, to be deposited in this Tribunal, within a period of 30 days of this order failing which Insurance Company shall be liable to pay future interest @ 12% per annum on the awarded amount till its realization (for the delayed period).
27. Copy of this Judgment be given to the parties for compliance.
28. Nazir attached to the Tribunal of undersigned is directed to issue notice to the petitioner immediately on deposit of the cheque of the awarded amount by the Insurance Company in this Tribunal so as to facilitate him to get the same released.
29. File be consigned to Record Room after giving the cheque to the petitioner.
Announced in the Open Court
on 26th Day of November, 2011 (SANJIV JAIN)
POMACT02 : SOUTH DISTT.
26.11.2011
Suit No. : 4/11 14/ 15
15 Phool Mehta Vs. Shakir
PHOOL MEHTA Vs. SHAKIR
Suit No. 4/11
26.11.2011
Present: Ld. Counsel for the parties.
Vide separate order of even date an award for compensation of Rs. 1,75,000/ (Rs. One Lakh Seventy Five Thousand only) with interest @ 9% per annum from the date of filing of petition till realization of the amount is passed in favour of the petitioner.
The insurance company/respondent no.3 is further directed to make the payment directly to the hospital for her knee replacement surgery to be done in future on the estimate/bills to be submitted by the petitioner from time to time.
Copy of the award be given to the parties.
File be consigned to Record Room.
(SANJIV JAIN) PO : MACT02 : SOUTH DISTT.
26.11.2011 Suit No. : 4/11 15/ 15