Delhi District Court
Bimla Saini vs . Apoorv Goel on 15 November, 2017
Bimla Saini vs. Apoorv Goel
IN THE COURT OF SHRI SAMEER BAJPAI : PRESIDING OFFICER : MACT
SOUTH DISTT. : SAKET COURTS : NEW DELHI
Suit No. : 75422/16
Bimla Saini
W/o Sh. Gurdas
Presently R/o 3875/12,
Kanhaiya Nagar, New Delhi
Permanent R/o
25, Annan Close,
Amaroo Act 2914
...... Petitioner
Versus
1. Apoorv Goel
S/o Sh. R A Goel
R/o 1, Sukhdev Vihar,
1st Floor, New Delhi - 25 (Driver of Car)
2. Kishore Kumar
S/o Sh. Binodas
R/o Vill. Khar, P.O. Bhiwani Pur,
P.S. Kamaria, Distt. Madhey Pura,
Bihar (Driver of TSR)
3. Chetna Vinimay Pvt. Ltd.
H. No.1, Sukhdev Vihar,
New Delhi (Owner of Car)
4 Sanjay Kumar
S/o Sh. Vinod Sharma
R/o JBlock, 469,
Shakur Pur, J. J. Colony, Delhi (Owner of TSR)
5 Bajaj Allianz General Insurance Co. Ltd.
GE Plaza, Airport Road,
Yerwada, Pune - 411 003 (Insurer of Car)
Suit No. : 75422/16 Page No. 1 of 15
Bimla Saini vs. Apoorv Goel
6 IFFCO Tokio General Ins. Co. Ltd.
IFFCO Sadan, C1, Distt. Centre,
Saket, New Delhi (Insurer of TSR)
......Respondents
Date of Institution : 17.02.2010
Date of reserving of judgment/order : 31.10.2017
Date of pronouncement : 15.11.2017
J U D G M E N T :
1. By this order I shall dispose of the claim petition filed by the petitioner for the injuries sustained by her in a road accident on 13.12.2009 involving vehicle bearing no. DL 3C BM 1039 and DL 1R F 4686 by the respondent no.1 and 2, owned by respondent no.3 and 4 and insured with respondent no.5 and 6.
2. Respondent no.1 and 3 have filed joint written statement stating that there is no cause of action for filing the present claim petition by the claimant against them because as per her own statement, the driver of the TSR was responsible for causing the accident by driving the TSR rashly, negligently and on wrong side. They further stated that their vehicle was duly insured with respondent no.5 for the period from 29.05.2009 to 28.05.2010.
3. Respondent no.2 and 4 have also filed their joint written statement denying the averments made by the petitioner.
Suit No. : 75422/16 Page No. 2 of 15Bimla Saini vs. Apoorv Goel
4. Respondent no.5 and 6 filed their written statement denying the averments made by the petitioner.
5. Following issues were framed vide order dated 10.01.2011 :
1. Whether injured suffered injuries in an accident which took place on 13.12.2009 involving vehicle bearing no. DL 3C BM 1039 and DL 1R F 4686 due to rash and negligent driving of respondent no.1 and 2, owned by respondent no.3 and 4 and insured with respondent no.5 and 6?.... OPP.
2. Whether the petitioner is entitled to compensation? If so, to what amount and against which of the respondents?
3. Relief.
6. Petitioner examined herself as PW1 and tendered in evidence her affidavit Ex.PW1/A and relied upon the documents Ex.PW1/1 to Ex.PW1/2 (colly.). She tendered in evidence her additional affidavit Ex.PW1/A1 and relied upon the documents Ex.PW1/A1 to Ex.PW1/6.
7. Ms. Ramita Kumar Sr. Counseller Advisor, New Zealand High Commission was examined as PW2. She stated that she was working with New Zealand High Commission as Sr. Counsellor Advisor. She has brought her Icard Ex.PW2/1. She further stated that as per practice prevailing in New Zealand, a person who gets fresh employment is bound to get the minimum wage rate set by the Government. She proved the minimum wage rate is Ex.PW2/2. She also proved the wage rate pertaining to household support people Ex.PW2/3.
During crossexamination she stated that as welfare benefit the Govt. of New Zealand reimburse the medical bills of road victim. She Suit No. : 75422/16 Page No. 3 of 15 Bimla Saini vs. Apoorv Goel further stated that if the victim of accident becomes disabled, he gets disability allowance from New Zealand allowance.
8. Respondent no.5 examined Apoorv Goel, respondent no.1 as R5W1. He stated that on 13.12.2009 he was coming from Vasant Kunj in his car bearing no. DL 3C BM 1039 and was going towards his residence at Sukhdev Vihar. He was alone at the time of incident. When he was going towards flyover, an Auto Rickshaw bearing no. DL 1R F 4686 hit him which was coming in wrong lane from opposite side. He further stated that the accident took place at about 2 or 2.30 AM in the night. The road on which the accident took place was two way main road. The speed of the car which he was driving was 4045 km/hr. He further stated that the auto was coming at a high speed without headlight. The driver of the auto was driving in a rash and negligent manner. Due to the impact, his car turned and moved towards the side lane. His vehicle was also damaged.
During crossexamination he admitted that he was driving the offending vehicle bearing no. DL 3C BM 1039 Audi at the time of accident. He stated that he did not lodge any complaint against the auto driver who had hit his car. He denied the suggestion that he was driving at the minimum speed of 125 km/hr and he hit the auto. He stated that he did not inform the police and the police itself reached the spot. He denied the suggestion that the auto was being driven in a slow speed and his car was being driven at highly fast speed. He voluntarily stated that in fact the auto was coming from wrong side and that too in the main lane i.e. the lane towards the divider. He further stated that the auto neither had a head light or the indicator and further speed of the auto was very high. He denied the suggestion that the head light and indicators of the auto Suit No. : 75422/16 Page No. 4 of 15 Bimla Saini vs. Apoorv Goel were on. He further denied the suggestion that the head lights of his car were off and head light and indicators of the auto were on. He further denied the suggestion that the accident took place due to over speeding of his Audi car.
9. I have heard arguments and perused the record. My issuewise finding is as under :
I S S U E No. 110. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving by the driver. 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 has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. Though it is an admitted legal position that the negligence on part of the driver with respect to the use of vehicle needs to be established but the same is to be established on the principles of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III (2015) ACC 435 Delhi.
PW1 has stated that on the unfortunate day of 13.12.2009 at about 2.45 PM she was going alongwith her sister Meera Arora towards Bhagwan Shri Laxmi Dham, S85, Greater Kailash PartII, New Delhi for taking medicines and she hired a TSR. When they were coming back from Greater Kailash to Kanhaiya Nagar, the driver of the TSR bearing no. DL 1R F 4686 started driving on the wrong side towards Panchsheel, then all of a sudden, a car bearing no. DL 3C BM 1039 (car) which was Suit No. : 75422/16 Page No. 5 of 15 Bimla Saini vs. Apoorv Goel being driven by its driver in a rash and negligent manner came and struck the TSR. As a result of the forceful impact she suffered multiple injuries. She was taken to JPN Apex Trauma Center and later on got treatment in Pune where she remained admitted w.e.f. 02.04.10 to 25.02.11 and later on in various hospitals. She remained in Orthonova Hospital w.e.f. 07.06.2011 to 15.06.2011 where her surgery was done.
During crossexamination by the ld. counsel for respondents no.5 and 6, the insurance companies of Audi Car and TSR, she denied the suggestion that the accident took place due to sole and negligent driving by the driver of TSR in which she was travelling because the driver of TSR was driving his TSR on wrong side. She denied the suggestion that the car was driven by the driver in a correct manner. She admitted that the driver of the TSR blew the horn. She further admitted that there is one way road and most of the vehicles were going on the TSR side. She further admitted that the accident was caused due to rash and negligent driving by the driver of the car. She admitted that the driver of the car hit the TSR willingly.
Now, comes the question as to by whose negligence the accident happened. In her petition and in evidence the petitioner has stated that the driver of TSR bearing no. DL 1 R F 4686 started driving on wrong side towards Panchsheel and all of a sudden the offending vehicle i.e. Audi car bearing no. DL 3C BM 1039 being driven by its driver in a rash and negligent manner and at high speed struck the TSR. The site plan as filed by the I.O alongwith the DAR depites the same scene as has been narrated by the petitioner. In the site plan the TSR has been shown coming on the wrong side alongwith the central verge and the Audi car was hit the TSR being driven by its driver at his correct side. Under these Suit No. : 75422/16 Page No. 6 of 15 Bimla Saini vs. Apoorv Goel facts, to my mind only the TSR driver is negligent in driving his TSR. Had the TSR driver not driven the TSR on the wrong side the accident would have never happened. The driver of the Audi car was supposed to drive his car where he infact was driving it i.e. on the correct side of the road which was divided by a permanent divider. The driver of the Audi car was not expected to keep his eyes wide open and be constantly so vigilant in the expectation of any such nuisance as was created by the TSR driver by driving his TSR on the wrong side. Although the injured has stated that the driver of the Audi car was driving his car in fast speed and in a rash and negligent manner but only by her statement negligence cannot be attributed to the driver of the Audi car and the Tribunal has to consider all the facts and circumstances to determine the negligence. It is thus concluded that the accident happened due to the negligence of the driver of the TSR only i.e. respondent no.2. Hence respondent no.2 Kishore Kumar is primarily liable to compensate the petitioner. Documents filed on record show that the TSR was owned by respondent no.4 and it was insured with respondent no.6.
Therefore, this issue is decided in favour of the petitioner and against the respondents.
I S S U E No. 2Compensation :
11. Medical Bills : The petitioner has filed on record original medical bills of Rs. 2,72,417/. Therefore, I award Rs. 2,72,417/ to the petitioner towards medical expenses.
12. Pain & Sufferings and Enjoyment of life : As per the discharge summary the petitioner was diagnosed with Periprosthetic fracture right Suit No. : 75422/16 Page No. 7 of 15 Bimla Saini vs. Apoorv Goel knee. She remained hospitalised for a long time. She has suffered disability to the extent of 74% in relation to her Right Lower Limb. Having regard to the injuries and the disability of the petitioner, I award Rs. 1,50,000/ to her towards pain and sufferings and enjoyment of life.
13. Special Diet, Conveyance & Attendant charges : The injuries on the person of the petitioner were such that she must have been advised special diet for her early recovery. I therefore, award Rs. 10,000/ to the petitioner towards special diet. The petitioner has placed on record original conveyance bills of Rs. 14,230/. I therefore award Rs. 14,300/ to the petitioner towards conveyance charges. The petitioner has placed on record original attendant charges bills for Rs. 76,085/. I therefore award Rs. 76,100/ to the petitioner towards attendant charges. Thus, the total award under this head comes to Rs. 1,00,400/. In the instant case, the claimant needs full time attendant. The claimant was 45 years of age at the time of accident. Following the ratio of the case of Sarla Verma Vs. DTC 2009 (6) Scale 129, taking the wages of an Attendant as Rs. 3,953/ p.m. which is the minimum wages prevailing at the time of accident, the amount towards attendant charges is calculated as Rs. 3,953 x 12 x 14 = Rs. 6,64,104/. I therefore, award Rs. 6,64,200/ to the petitioner towards attendant charges.
14. Loss of Income/Future Income : The petitioner has stated that at the time of accident she was residing at New Zealand alongwith her family and was working as Call Centre Operator upto 20.07.08 and after that she alongwith her family had shifted to Australia. She has filed on record bank statement, summary of earnings and Tax deductions by IRD (Inland Suit No. : 75422/16 Page No. 8 of 15 Bimla Saini vs. Apoorv Goel and Revenue Department) Ex.PW1/A2 (colly.). The accident happened on 13.12.2009 and the relied documents Ex.PW1/A2 (colly.) pertain to the year 2008. During crossexamination the petitioner has also admitted that at the time of accident she was not working anywhere and she was looking for a job. She further admitted that the documents Ex.PW1/A2 are not attested by any embassy or any other competent authority. Thus, it is clear that at the time of accident the petitioner was not doing any job.
It is very important to note that on 12.11.2013 petitioner submitted before the Tribunal that she should be paid minimum wages as prevalent in New Zealand for calculating loss of income. Ld. Predecessor observed that the petitioner has not led any evidence in this respect and gave opportunity to the petitioner to lead evidence in this respect. The said order was challanged by the insurance company, the respondent no.5 Bajaj Allianz General Insurance Co. Ltd. The Hon'ble High Court vide order dated 22.04.2016 permitted the insurance company to cross examine the witness as summoned from High Commission of New Zealand and directed the parties to appear before this Tribunal on 30.07.2016. For clarity the relevant para of order of Hon'ble High Court is reproduced as under :
"Needless to state that the petitioner before this Court is permitted to further crossexamine the witness who has been summoned from the High Commission of New Zealand and if his crossexamination has not commenced, he shall start his crossexamination and conclude it early".
It is thus clear that the respondent no.5 was given opportunity to crossexamine the witness from the High Commission of New Zealand when the matter was remanded back to this Tribunal. On 22.08.2016 the Suit No. : 75422/16 Page No. 9 of 15 Bimla Saini vs. Apoorv Goel Ld. Predecessor issued summons to Ms. Ramita Kumar, i.e. the witness from New Zealand High Commission, and fixed the matter for petitioner's evidence for 21.11.16. On this date the Ld. Predecessor was on leave and the matter was fixed for 28.11.2016. Again the matter was adjourned for 07.12.16 for the reason that the Ld. Predecessor was on leave. On this date no PW was present and ld. counsel for the petitioner stated that no other witness is to be examined on their behalf and consequently the Ld. Predecessor closed the P.E. For the sake of clarity, the mentioned order is also reproduced as under :
07.12.2016 "No PW present. Ld. counsel for the petitioner states that no other witness is to be examined on their behalf. Hence, P.E. stands closed. To come up for R.E., if any/Final Arguments on 23.01.2017".
It is thus clear that the petitioner was supposed to ensure the presence of the witness from the High Commission of New Zealand and without giving opportunity to the respondents to crossexamine her, her examination in chief cannot be read and considered. Thus, for the said lapse the contention of the petitioner to consider the minimum wages or income from her job in New Zealand cannot be taken into consideration.
It has been contended by the petitioner that as she had been residing in Australia and earlier was working in New Zealand, for calculating loss of income, minimum wages of Australia/New Zealand should be considered. In her affidavit dated 16.11.2011 she stated that she was providing coaching, tuitions and stitching classes in Australia and was earning Rs. 10,000/ p.m., whereas, in her affidavit dated 26.08.2013 she stated that while looking for a job in Australia, she visited India and met with an accident. The petitioner herself has stated that before coming Suit No. : 75422/16 Page No. 10 of 15 Bimla Saini vs. Apoorv Goel to India she was looking for a job and thus it is clear that before the accident she was not doing anything in Australia. Further, the petitioner has not given any proof to prove the income through coaching, tuitions or stitching classes. Further, the petitioner has stated that from New Zealand she shifted to Australia and did different works as mentioned earlier, but record doesn't show any work permit or authority to make the petitioner entitled to work in Australia. If legally the petitioner was not permitted to work in Australia, she cannot claim minimum wages of Australia.
Now, the question is whether at all for calculating the loss of income, minimum wages of New Zealand or Australia can be considered. In India for determining the income, minimum wages are considered in case the petitioner has no proof of income, only for the reason that a large number of poor workers have no record of their work/employment. Like construction workers, vegetable vendors and other daily wagers have no record of their work or employment. The practice to consider the minimum wages has been approved by the Hon'ble Apex Court to give relief to the poor workers and labourers who cannot prove their income for the reason that their employment is not recorded anywhere. For a person like the present petitioner who is a citizen of New Zealand and at present residing in Australia, to my mind minimum wages of Australia or New Zealand just cannot be considered. If at all, the petitioner wishes to consider the minimum wages, the same minimum wages can be considered for her as are considered for citizens of India. Further, citizens of New Zealand or Australia have social security as provided by the respective Governments and petitioner can be taken care of by the Government of the mentioned countries. PW2 Ms. Ramita Kumar, the Suit No. : 75422/16 Page No. 11 of 15 Bimla Saini vs. Apoorv Goel witness from New Zealand High Commission in her crossexamination deposed that as welfare benefit the Government of New Zealand reimburse the medical bills of road victim. She further deposed that if victim of accident becomes disabled, he gets disability allowance from New Zealand. Under these circumstances when the petitioner is a citizen of New Zealand and can get respective benefits there in New Zealand, she cannot be given the desired benefit here in India. To my mind, it would not be justified to consider minimum wages of Australia or New Zealand for determining the income of the petitioner. So, this Tribunal has no option but to take Rs. 4,713/ p.m. i.e. minimum wages of a graduate in Delhi as on the date of accident.
As per the disability certificate the petitioner has suffered 74% disability in relation to her Right Lower Limb because of which she shall never be able to use her right leg to its maximum. Her efficiency would be reduced as she will face difficulty to do the normal routine work. Having regard to the facts and circumstances of the case her functional disability is taken as 50% in view of the judgment of Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343 as definitely her earning capacity would be reduced to some extent. Therefore, the future loss of income is calculated as Rs. 4,713 X 12 X 14 x 50% = Rs.3,95,892/ which is rounded off to Rs. 3,96,000/. I therefore, award Rs. 3,96,000/ to the petitioner towards future loss of income.
15. Loss of Amenities : The petitioner was 45 years of age at the time of accident. Due to the permanent disability, the petitioner would not be able to participate in the normal activities of her daily life to pursue her talents, recreation interest, hobbies and evocations. The injuries would also have an affect on her social life. Looking into his age, injuries and facts and Suit No. : 75422/16 Page No. 12 of 15 Bimla Saini vs. Apoorv Goel circumstances of the case, I award a sum of Rs. 1,00,000/ towards loss of amenities.
16. Thus, the total compensation awarded in favour of the petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 2,72,417/
PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 1,50,000/
SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 100,400/
FUTURE ATTENDANT CHARGES : Rs. 6,64,200/
LOSS OF INCOME/FUTURE INCOME : Rs. 3,96,000/
LOSS OF AMENITIES : Rs. 1,00,000/
============
TOTAL : Rs. 16,83,017/
============
Rounded off to : Rs. 16,83,100/
L I A B I L I T Y
17. As the offending vehicle was being driven by respondent no. 2, primary liability to compensate the petitioner is of respondent no. 2. Since the offending vehicle was owned by respondent no.4, he is vicariously liable to compensate the petitioner. It has come on record that the vehicle was insured with respondent no.6, so it is contractually liable to compensate the petitioner.
R E L I E F
18. In view of my findings, I award Rs. 16,83,100/ (Rs. Sixteen Lakh Eighty Three Thousand One Hundred only) to the petitioner as compensation alongwith interest @ 9% per annum from the date of filing the petition till its realisation.
Suit No. : 75422/16 Page No. 13 of 15Bimla Saini vs. Apoorv Goel Petitioner has been examined by the Tribunal in terms of order dated 16.12.16 passed by the Hon'ble High Court in FAO 842/2003 titled as Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors.
She stated that if the award is passed in her favour, some amount be released to her and some amount may be kept in fixed deposit.
Out of the awarded amount, a sum of Rs. 7,83,100/ alongwith the interest on whole awarded amount is directed to be released to the petitioner. The remaining amount of Rs. 9,00,000/ is directed to be kept in the form of fixed deposit for the period from 1 to 9 years. Petitioner is at liberty to get a bank account opened in the State Bank of India in a branch nearest to her place of residence and give details thereof to the SBI, Saket Courts branch so that the maturity amount of the FDRs can be directly credited to her account.
DIRECTIONS FOR THE RESPONDENT NO. 619. The respondent no.6 is directed to deposit the awarded amount in favour of the petitioner directly in the State Bank of India, Saket Courts branch within a period of 30 days from today, failing which the respondent no.6 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
20. The Respondent no.6 shall intimate the claimant/petitioner about its having deposited the cheque in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate her to withdraw the same.
Suit No. : 75422/16 Page No. 14 of 15Bimla Saini vs. Apoorv Goel
21. Copy of this Award / Judgment be given to the parties for necessary compliance.
22. The case is now fixed for compliance by the respondent no.3/insurance company for 15.12.2017.
Announced in the Open Court
on 15th day of November, 2017 (SAMEER BAJPAI)
Presiding Officer : MACT (S)
Saket Courts New Delhi
Suit No. : 75422/16 Page No. 15 of 15