Delhi District Court
Sandeep vs . Ajay Kumar Rout on 8 December, 2015
Sandeep Vs. Ajay Kumar Rout
IN THE COURT OF SHRI NAVEEN ARORA : PRESIDING OFFICER : MACT
SOUTH DISTT. SAKET COURTS : NEW DELHI
Suit No. : 135/14
FIR No. : 611/13, PS : Dr. Ambedkar Nagar
Sandeep
S/o Sh. Daya Ram
R/o 7A, Siddharth Basti,
Hari Nagar, Ashram, New Delhi
...... Petitioner
Versus
1. Sh. Ajay Kumar Rout
S/o Sh. Bhagwan Dutt Rout
R/o 5/489, Dakshin Puri,
New Delhi (Driver)
2. Emkay Appliance Pvt. Ltd.
552, 2nd Floor, Katra Ashrafi
Chandi Chowk, New Delhi (Owner)
3. Reliance General Insurance Company
60, Okhla Industrial Estate,
New Delhi (Insurer)
......Respondents
Date of Institution : 25.01.2014
Date of reserving of judgment/order : 30.11.2015
Date of pronouncement : 08.12.2015
Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.1/14
Sandeep Vs. Ajay Kumar Rout
J U D G M E N T :
1. A Detailed Accident Report has been filed by SHO of the police station Dr. Ambedkar Nagar for the injuries sustained by Sandeep in a road accident on 18.12.2013 at about 5.00 PM.
2. Briefly, the facts are that on 18.12.2013 at about 5.00 PM the petitioner was going from his house to Saket Court on his motorcycle bearing no. DL 3S BT 3123 via Mool Chand - Chirag Delhi BRT Road. He stopped at Chirag Delhi Red Light. When the light became greeen he rightly moved in his lane towards Sheikh Sarai, in the meantime, a Fortuner car bearing registration no. DL 1C P 1179 being driven by respondent no.1 came from wrong side in a rash and negligent and manner and hit the petitioner with great force. As a result of which the petitioner fell down on the road and sustained injuries on his right leg and other parts of the body. He was taken to Max Super Speciality Hospital where his MLC bearing no. 3978 was prepared. A case vide FIR no. 611/13 u/s 279/338 IPC was registered at the police station Dr. Ambedkar Nagar at the instance of BRT Staff. The vehicle was owned by respondent no.2 and insured with respondent no.3.
3. Notice of the DAR was given to the respondents. No WS filed by any of the respondents. Insurance company offered Rs. 60,000/ plus medical bills to settle the present case but it was not accepted to the claimant.
Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.2/14
Sandeep Vs. Ajay Kumar Rout
4. From the pleadings, following issues were framed vide order dated 15.05.2014 :
1) Whether the injured namely Sandeep sustained injuries in road accident on 18.12.2013 at about 5.00 PM at Chirag Delhi flyover, BRT Corridor road, Mool Chand to Sheikh Sarai Road, New Delhi due to rash and negligent driving of car bearing no. DL 1C P 1179 by Ajay Kumar Rout, owned by Emkay Appliances Pvt. Ltd. and insured with Reliance General Insurance Co. Ltd.?
2) To what amount of compensation, the injured is entitled and from whom?
3) Relief.
5. The parties were thereafter called upon to substantiate their case by leading evidence.
6. The petitioner examined himself as PW1 tendered in evidence his affidavit Ex.PW1/1 and documents Ex.PW1/A to Ex.PW1/D. Respondents did not examine any witness.
7. I have heard the arguments advanced by Ld. Counsel for the parties and perused the evidence on record. My findings on the issues are as follows :
I S S U E N O . 1
8. 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. To prove rash and negligent driving in a petition Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.3/14 Sandeep Vs. Ajay Kumar Rout 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.
9. PW1 has stated that on 18.12.2013 at about 5.00 PM he was going from his house to Saket Court on his motorcycle bearing no. DL 3S BT 3123 via Mool Chand - Chirag Delhi BRT Road. He stopped at Chirag Delhi Red Light. When the light became green he rightly moved in his lane towards Sheikh Sarai, in the meantime, a Fortuner car bearing registration no. DL 1C P 1179 being driven by respondent no.1 came from wrong side in a rash and negligent and manner and hit the petitioner with great force. As a result of which the petitioner fell down on the road and sustained injuries on his right leg and other parts of the body. He was taken to Max Super Speciality Hospital where his MLC bearing no. 3978 was prepared. A case vide FIR no. 611/13 u/s 279/338 IPC was registered at the police station Dr. Ambedkar Nagar at the instance of BRT Staff. The investigating officer alongwith the DAR has filed Final Report u/s 173 Cr.P.C., FIR, site plan, seizure Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.4/14 Sandeep Vs. Ajay Kumar Rout memo, mechanical inspection report, arrest memo, MLC etc. Perusal of FIR shows that the case was registered on the statement of Md. Hanif who has stated the same facts as deposed by PW1 in his testimony. Charge sheet was filed against the respondent no.1. On the MLC history of road traffic accident has been mentioned. Not an iota of evidence has come to draw an inference that the accident did not result due to rash and negligent driving of vehicle bearing no. DL 1C P 1179.
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.
Thus, it is established that Sandeep sustained injuries in road accident on 18.12.2013 at about 5.00 PM at Chirag Delhi flyover, BRT corridor road, Mool Chand to Sheikh Sarai Road, New Delhi due to rash and negligent driving of car bearing no. DL 1C P 1179 by respondent no.1. Documents filed on record would show that the vehicle was owned by respondent no.2 and insured with respondent no.3.
10. Thus, the issue no.1 is decided in favour of the petitioner and against the respondents.
Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.5/14
Sandeep Vs. Ajay Kumar Rout I S S U E N O . 2
11. The petitioner has claimed compensation in respect of the injuries sustained by him. In a road accident a person is entitled to compensation for the pecuniary and nonpecuniary damages.
12. It has been held by Hon'ble Apex Court in R.D. 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 nonpecuniary 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 non pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters ie. on account of injury, the claimant may not be able to walk, run or sit ;
(iii) damages for the loss of expectation of life, ie. on account of injury the normal longevity of the person concerned is shortened;
(iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
Let me assess the compensation which the petitioner is entitled for under different heads.
MEDICAL EXPENSES
13. As per the MLC Ex.PW1/B the petitioner sustained fracture both bone right leg. As per the discharge summary wound debridement and Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.6/14 Sandeep Vs. Ajay Kumar Rout closure and CRIF with IMIL Nail Right Tibia was done. He remained hospitalised from 19.12.13 to 26.12.13. He was again hospitalised from 03.01.14 to 06.01.14. In the present case the petitioner has filed medical bills of Rs. 1,50,383/. I therefore, award Rs.1,50,400/ to the petitioner towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE
14. Testimony of PW1 shows that due to the accident, he sustained multiple injuries. Immediately after the accident, he was Max Hospital. He was hospitalised twice in Holy Family Hospital. He was operated. He was 30 years of age. He was having good health and physique prior to the accident. He was a Gym Trainer at Saket Courts Complex. He became 27% permanent disabled in relation to his right lower limb. Looking into the injuries, and its affect on his career prospects, I award Rs. 50,000/ to the petitioner towards Pain & Sufferings and Enjoyment of Life.
SPECIAL DIET, ATTENDANT AND CONVEYANCE CHARGES
15. PW1 remained admitted in the hospital twice. He remained on bed for quite a long time. He also attended the hospital as an outdoor patient. He became physically challenged person due to the said accident. He also took the help of an attendant in his daytoday work. The special diet was advised to him for his early recovery. Taking into consideration his injuries and all the facts,I award Rs. 20,000/ each towards Special diet and Conveyance and Rs. 20,000/ towards Attendant charges. Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.7/14
Sandeep Vs. Ajay Kumar Rout LOSS OF INCOME AND FUTURE LOSS OF INCOME
16. The petitioner has stated that at the time of accident he was 30 years of age. He was having good health and physique. He was a Gym Trainer at Saket Courts Complex and was earning Rs. 25,000/ p.m. As far as the nature of job of the petitioner is concerned the same is not disputed and is well within the knowledge of the undersigned. As far as his earning is concerned, the petitioner has claimed that he was earning Rs. 25,000/ p.m. Though no documentary proof has been placed on record but in todays time when every young person is trying to become a fitness freak and are very conscious about their health which has resulted into opening of number of Gyms in almost all areas, it can be safely assumed even in the absence of evidence that the income of the petitioner would not be in less than Rs. 15,000/ p.m. as the Gym trainers usually work on hours basis and they get very good consideration for their service. Needless to say it is a skilled job. Therefore, I take the income of the petitioner as Rs. 15,000/ p.m. It is argued on behalf of the petitioner that he has become very weak and he not in a position to work as a Gym Trainer. The petitioner has become disabled and he has 27% disability in relation to his right lower limb. He was a young boy and had a bright future. Thus, the loss of income is calculated as 4 ½ x 15,000 = Rs. 67,500/. I therefore, award Rs. 67,500/ to the petitioner towards loss of income.
It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" that in the context of loss of future Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.8/14 Sandeep Vs. Ajay Kumar Rout earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. Reference was also made of the case "Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343." Looking into the injuries and the fact that petitioner wanted to make his career in sports, his functional disability is taken as 40%, for calculating the compensation towards future loss of income. Petitioner was 30 years of age at the time of accident. Applying the ratio of the case of "Sarla Verma Vs. DTC 2009 (6) Scale 129" taking a multiplier of '17', future loss of income is calculated as 15,000 x 12 x 17 x 40% = Rs. 12,24,000/. I therefore, award Rs. 12,24,000/ to the petitioner towards future loss of income.
LOSS OF AMENITIES & MARRIAGE PROSPECTS :
17. The petitioner was a young boy and had a good future. He was a Gym Trainer. The accident made him physically handicapped. He lost his career. His marriage prospects/life also jeopardised as he became permanently disabled. Looking into his age, injuries and facts and circumstances of the case, I award a compensation of Rs. 1,00,000/ towards "Loss of Amenities" and Rs. 1,00,000/ towards "Loss of Marriage Prospects".
18. Thus the total compensation awarded in favour of the petitioner is assessed as under :
Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.9/14
Sandeep Vs. Ajay Kumar Rout MEDICAL EXPENSES : Rs. 1,50,400/ PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 50,000/ SPEICAL DIET, ATTENDANT & CONVEYANCE : Rs. 30,000/ LOSS OF INCOME : Rs. 67,500/ LOSS OF FUTURE INCOME : Rs. 12,24,000/ LOSS OF AMENITIES & MARRIAGE PROSPECTS : Rs. 2,00,000/ ============ TOTAL : Rs. 17,21,900/ ============ L I A B I L I T Y
19. As the offending vehicle was being driven by respondent no. 1 so, primary liability to compensate the petitioner remains with that of respondent no. 1. Since the vehicle was owned by respondent no. 2 so, it becomes vicariously liable to compensate the petitioner. It is an admitted position on record that the vehicle was insured with respondent no. 3, therefore, respondent no. 3 becomes contractually liable to compensate the petitioner for the above mentioned amount.
R E L I E F
20. In view of my findings, I award Rs. 17,21,900/ (Rs. Seventeen Lakh Twenty One Thousand Nine Hundred only) to the petitioner as compensation with interest @ 9% per annum from the date of filing the DAR till its realisation.
Out of this amount Rs. 14,00,000/ is directed to be kept in Fixed Deposit in the name of petitioner in the following phased manner : Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.10/14
Sandeep Vs. Ajay Kumar Rout
1. Rs. 3,00,000/ for a period of 1 year.
2. Rs. 3,00,000/ for a period of 2 years.
3. Rs. 3,00,000/ for a period of 4 years.
4. Rs. 3,00,000/ for a period of 6 years.
5. Rs. 2,00,000/ for a period of 8 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
21. In terms of the directions given by Hon'ble High Court in case titled "
Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
22. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimant.
23. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, Insurance Company is directed to deposit the awarded amount Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.11/14 Sandeep Vs. Ajay Kumar Rout in favour of the claimant with State Bank of India, Saket Courts Complex Branch, against account of claimant.
within a period of 30 days from today, failing which respondent no. 3 Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
24. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :
(i) The interest on the fixed deposit be paid to the claimant by Automatic Credit of interest of his saving bank account with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimant after due verification and the Bank shall issue photo identity Card to claimant to facilitate identity.
(iii) No cheque book be issued to the claimant without permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimant alongwith the photocopy of the FDR's .
(v) The original fixed deposit receipts shall be handed over to claimant at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court.
(viii)On the request of claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi. Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.12/14
Sandeep Vs. Ajay Kumar Rout DIRECTIONS FOR THE RESPONDENT NO.3
25. The Respondent no. 3 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
26. The Respondent no. 3 is directed to furnish a copy of this award alongwith the cheque of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant in whose favour the award has been passed.
27. The Respondent no. 3 shall intimate to the petitioner about its having deposited the cheque in favor of the petitioner in terms of the award, at the address of the petitioner mentioned at the title of the award, so as to facilitate him to withdraw the same.
28. Copy of this award / judgment be given to the claimant who are directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after their having received the notice of the deposit of awarded amount from the Insurance company.
29. Copy of this Award / Judgment be given to the parties for compliance. Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.13/14
Sandeep Vs. Ajay Kumar Rout
30. The case is now fixed for compliance by the insurance company for 08.01.2016.
Announced in the Open Court
on 08th Day of December, 2015 (NAVEEN ARORA)
Presiding Officer : MACT
South District : Saket Courts
New Delhi : 08.12.2015
Suit No. 135/14, FIR No. : 611/13, PS : Dr. Ambedkar Nagar Page No.14/14