Delhi District Court
Yogesh Singh vs Sh. Amar Singh on 14 January, 2013
1
IN THE COURT OF MS. VINEETA GOYAL: PO-MACT (SOUTH-01)
SAKET COURTS, NEW DELHI
INJURY CASE
Suit No. 314/10
Unique ID No. 02406C0430052010
IN THE MATTER OF :-
Yogesh Singh
S/o Sh. Dalip Singh
Permanent R/o VPO-Dongra Ahir,
Distt. - Mohindergarh,
At present residing at
INHS Kalyani Gandhigram Post,
Visakhapatnam-05
------------Petitioner
Versus
1 Sh. Amar Singh
S/o Sh. Jagat Ram
R/o 52/53, Vasant Kunj,
New Delhi ------------Driver
2 M/s Cuprum Bagrodia Ltd.
Through its Director
Room No. 5, 3rd Floor, Grover Mansion,
3/17, Asaf Ali Road,
New Delhi - 110 002 ------------ Owner
3 The HDFC Chubb General Insurance Co. Ltd.
Regd. Office :- Raman House,
H.T. Parekh Marg, 19, Backbay
Reclamation, Mumbai - 400020 ------------Insurance Co.
Respondents
Suit No. 314/10 Page no. 1/16
2
Compensation claimed : Rs. 1,00,00,000/-
Date of first institution : 12.10.2010
Date of institution
in the present court : 12.10.2010
Date of final arguments : 04.01.2013
Date of order : 14.01.2013
Present: Sh. Arun Yadav, Ld. counsel for claimant/injured.
Sh. A K Singh Ld. counsel for respondent no.1/driver.
Respondent no.2 is Ex-parte.
Sh. Ganesh Pandey, Ld. counsel for insurance company/R3.
JUDGMENT/AWARD
1. The claimant namely Yogesh Singh filed a petition U/s 166 & 140 of the Motor Vehicles Act, 1988 (for short, the Act) for award of compensation to the tune of Rs. 1,00,00,000/-. Brief facts as epitomized in the claim petition are that on 09.10.2004 at about 2.00 PM the petitioner was going from Navsena Bhawan to Gulmohar Park, New Delhi and when he reached near Netaji Nagar Bus stop on Africa Avenue Road, all of a sudden a Honda City car bearing no. DL-2FCC-0060 being driven by its driver namely Amar Singh in rash and negligent manner came and hit the claimant resultantly causing grievous injuries on his person. The victim was removed from the place of accident to Safdarjung Hospital for treatment. It is averred in the claim petition that accident has caused due to sole rashness and negligence on the part of respondent no.1 who was driving the vehicle in question in careless manner. It is further averred that the claimant is about 23 years of age at the time of accident and was having a good and sound body prior to the accident. He after completing his 10+2 in Commerce on the basis of Metric Entry Recruitment Suit No. 314/10 Page no. 2/16 3 in February, 2001 joined Indian Navy. After completing his basic training and professional training of 06 months and 09 months respectively, he continued with his studies for betterment of his career also completed his graduation with Economics in year 2006. The claimant completed Post Graduation in English in year 2008. It was further averred that the victim remained as a brilliant student through his career and he could well qualified the examination for getting submission in Indian Navy and he can even goes upto the rank of Captain and further averred that due to the accident he could not recover fully and suffered permanent disability as a result of Naval Medical Board had put him under Low Medical Category for lifetime. It is further claimed that in Indian Navy the petitioner was having bright future ahead as Navy offers Commissioned Rank as Special Duty Officer to brilliant Sailor who possessed his graduation with either mathematics or economics and as per his qualification, he could get Commissioned Rank as a normal career for every Sailor in Navy stretch upto Masters Chief Petty Officer 1 st Class by the time he could have 45 years of age. It was further claimed that the petitioner has spent huge amount on his medical treatment etc. and became permanently disabled and is not in a position to do any work in future properly. The entire future of his family has suffered great mental agony, harassment, shock and financial loss and a claim of Rs. 1,00,00,000/- has been claimed.
2. In response to the notice of claim petition issued to respondents, driver and insurance company marked their presence and contested the claim. Owner despite publication did not appear for the reasons best known to him and was proceeded Ex-parte. Written Statement was filed by driver inter-alia denying the liability to pay compensation to the claimant and submitted that the accident did not took place due Suit No. 314/10 Page no. 3/16 4 to the rash and negligent driving of the answering respondent. Reply/written statement was filed by the insurance company alleging that the answering respondent is not liable to pay compensation to the claimant in case the driving license of the driver at the time of accident is not found to be a valid driving license as per the terms of the policy however, admitted that the vehicle was duly insured in the name of respondent no.2 vide cover note no. VC-0317658 valid from 08.06.04 to 07.06.05.
3. From the pleadings of the parties following issues were framed on 29.11.2011 :-
ISSUES
1. Whether injured suffered injuries in an accident which took place on 09.10.2004, at about 2.00 PM, involving vehicle Honda City Car bearing no. DL 2F CC 0060 due to rash and negligent driving of respondent no.1, owned by respondent no.2 and insured with respondent on.3?.....OPP
2. Whether petitioner is entitled to compensation? If, so, to what amount and against which of the respondents?
3. Relief.
4. In support of his claim, petitioner examined Lt. Sunil Chaturvedi, Western Naval Command, INS Kunjali Colaba, Mumbai as PW-1. He proved the service document and other documents Ex.PW1/1 to Ex.PW1/12 and stated that petitioner is working in Indian Navy as R.O.-II (Radio Operator). He joined Indian Navy on 25.01.2001 as a MER and thereafter, completed the training and posted as R.O.-II (Tell) on board INS Nirbhat on 03.06.02 and remained upto 04.06.04 and thereafter posted to Communication Centre New Delhi and remained upto 27.10.06 and after that he was transferred to Communication Centre, Visakhapatnam and at present Suit No. 314/10 Page no. 4/16 5 he is posted at INS Kunjali, Mumbai. He further stated that the claimant/petitioner cleared his internal examination for promotion on 27.12.02 with 89.2% and was supposed to be promoted next Rank R.O.-I after four years of joining the service and for that he has qualified the written examination but could not be promoted due to low medical category. He further stated that the petitioner after accident on 09.04.04 remained hospitalized for about 08 months in different hospitals. He was examined by Medical Board and Medical Board after examining the claimant had put him under category S3A2 (Permanent) and assess permanent disability as 40% in relation to left leg femur. He further stated that the claimant / petitioner applied for next promotion and commissioning in Armed Forces but he was not allowed to sit in the examination as he was not eligible as the Medical Board as put him into S3A2.
He further stated that if the petitioner had been promoted in next rank then his salary would be Rs. 27,000-28,000/- per month but as on today he is getting a salary of Rs. 22,209/- p.m. He also stated that victim was examined by the doctors of Indian Navy and certain restrictions were put for doing even daily routine. It was further stated that if the petitioner had not met with the accident then as on date his rank will be a Petty Officer and his salary would be Rs. 27,000-28,000/- with other benefits. He could go upto the rank of Master Chief Petty Officer-I and his salary would be upto Rs. 40,000/- p.m. However, due to the injuries sustained by the victim all his avenues of the promotion have been closed and the petitioner will not be further re-engaged after completion of present engagement as per the rules and regulations of Indian Navy.
5. The petitioner himself stepped into witness box as PW2, who proved his affidavit by way of evidence as Ex.PW2/A and tendered into evidence and relied Suit No. 314/10 Page no. 5/16 6 upon MLC, treatment record, copy of FIR, proceedings of criminal Court, certified copy of statement of the accused and order of plead guilty, copy of R/C, driving license, insurance cover note, copy of record for putting him in Low Medical category and educational qualification certificate.
6. No witness was examined by the respondents.
7. I have heard the arguments advanced by the Ld. counsels for parties and gone through the case file and my issues wise findings are as under:-
Issue no.1
8. In this case, the petitioner / claimant while stepping into the witness box as PW-2 has made statement that the accident was caused due to rashness and negligence on the part of the driver of Honda City car bearing registration no. DL-2FCC-0060. He attributed that the accident was occurred on account of rash and negligent driving of R1. He has placed on record certified copy of FIR, site plan, mechanical inspection report and MLC. Perusal of FIR reveals that it was registered against first respondent and registration number of offending vehicle is mentioned which was also found at the spot just after the accident, by the police officials who reached there. The petitioner has been cross examined by the counsel for insurance company but nothing has come out to disprove his testimony.
9. In the case of Basant Kaur and others vs. Chattar Pal Singh and Ors.
2003 ACJ 369 MP (DB), it was observed that registration of criminal case against driver of offending vehicle is enough to record finding that the driver of the offending vehicle is responsible for causing the accident.
10. Herein in the present case, from the oral testimony coupled with the documentary evidence, it is sufficiently proved on record that petitioner has Suit No. 314/10 Page no. 6/16 7 sustained injuries on account of negligent driving of respondent no.1. Hence, issue no. 1 is proved in favour of the petitioner and against respondents. Issue no.2
11. Now, coming to the point of compensation, in this accident victim immediately after accident was taken to Safdarjung Hospital where her medico legal report no. 176613/04 was prepared and noted injuries were grievous in nature. Loss of future income on account of disability :-
12. In this case victim is 23 years old (date of birth 19.05.1981) at the time of accident on 09.10.2004. At the time of accident he was working with Indian Navy at INHS Kalyani, Gandhigram Post, Visakhapatnam at an annual income of Rs. 64,000/-. The medical record suggests that immediately after accident the victim was removed to Safdarjung Hospital and received grievous injuries. Thereafter, he took treatment from Surgical Division, INHS, Kalyani and diagnosed with supracondylar fracture left femur. The petitioner has placed on record Medical Record proceedings which have graded the disability and the victim was put under low medical category S3A2 by Naval Medical Board.
13. The law for compensation in the case of permanent disability suffered during motor accident has been settled by Hon'ble Supreme Court in a catena of judgments i.e Arvind Kumar Mishra v. New India Assurance Co. Ltd. [2010 (10) SCC 254] , Yadava Kumar v. National Insurance Co. Ltd. [2010 (10) SCC 341], Raj Kumar v. Ajay Kumar & Anr. [(2011) 1 SCC 343] and Sri Nagarajappa Vs. The Oriental Insurance Co. Ltd. Civil Appeal No. 3203 OF 2011 (SLP(C) No. 6128/2010) decided on 11.04.2011.
14. From the combined reading of the aforesaid judgments, it emerges that while Suit No. 314/10 Page no. 7/16 8 deciding claim petition where claimants have suffered a permanent disability as a result of injuries in motor accident, the Tribunal would consider impact of such permanent disability on earning capacity of the injured and not mechanically get persuaded by the percentage of disability as recorded in disability certificate issued by the medical board. The tribunal will ascertain the activities which claimant could carry on in spite of the permanent disability and the activities he can not perform after accident. Then ascertain vocation, profession and nature of work being done by the injured before the accident in light of his age. In the last find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on or (ii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
15. Applying the ratio of various judgments regarding disability, the first principle to be adopted is to ascertain the impact of disability on earning capacity of the injured. In the present case, the injuries/disability immediately resulted in denial of promotion to the victim as evident from deposition of PW-1, Lt. Sunil Chaturvedi, Western Naval Command, INS, Kunjali, Colaba, Mumbai. This non-promotion has resulted in monthly loss of salary of approx. Rs. 5,800/- difference of emolument of Rs. 27,000/- - Rs. 28,000/- for R.O-I (Radio Operator) and his present post MER (R.O.-II) entitled for pay of Rs. 22,209/-. This loss is attributable to the accidental injuries because the injured fulfilled all other conditions except the aforesaid disability.
Suit No. 314/10 Page no. 8/16 916. It is also matter of record that zeal to progress of the injured is exhibited from the fact that after making an entry into services, he continued with his educational pursuits and completed graduation, post graduation and M. Phil. It is stated by PW-1, Lt. Sunil Chaturvedi that the injured could have reached his promotion to the next rank in normal course, if he had not met with the accident. It is relevant to reproduce the last paragraphs of examination in chief of witness.
"If the petitioner had not been met with an accident then as on date his rank will be a Petty Officer and his salary will be Rs. 27-28,000/- with other benefits. The petitioner could go to the upto the rank of Master Chief Petty Officer-I and his salary upto Rs. 40,000/- per month due to the injuries sustained by the petitioner his all avenues of promotion has closed. The petitioner will not be further re engaged after completion of present engagement as per the rules and regulations of the Navy order. The copy of the concerned Navy order is Ex. PW1/12".
17. It transpires from the above that immediate loss of per month of Rs. 5,800/- but in his normal course he could have reach Master Chief Petty Officer with much higher salary and position. He has also demonstrated his abilities from the fact that his post-graduation and still continuing with his education. The circumstances warrant that he should be given benefit of future prospects equivalent to the loss of income at the moment. In order to calculate the loss of income, the aforesaid Rs. 5,800/- is increased by 100% and this brings out the monthly loss of Rs. 11,600/-. The annual loss of income alongwith multiplier would provide compensation for future loss of income which is calculated as Rs.25,05,600/-(Rs.11,600X12X18) and awarded accordingly.
Suit No. 314/10 Page no. 9/16 10Traveling Expenses, Special Diet and other miscellaneous expenses
18. The petitioner remained admitted to various Hospitals and traveled for his treatment. The petitioner has suffered a major injury resulting into disability and he had to remain on special diet rich in proteins, therefore, a sum of Rs. 40,000/- are awarded towards Traveling expenses, special diet and other miscellaneous expenses which the petitioner might have incurred.
Medical expenses
19. The petitioner has not placed on record any medical expenses in the form of cash memo/bills. The medical record shows that the petitioner took treatment from INHS Kalyani, Visakhapatnam. In the absence of any medical bills, it can safely be presumed that all the medical expenses were either borne or reimbursed by the employer, the petitioner being a Navy employee and no compensation is awarded under this head.
Non-pecuniary Damages:
20. After the aforesaid, pecuniary compensation, the petitioner has also claimed compensation under various heads of non-pecuniary in nature. It is trite that award of compensation for losses of these category would depend upon facts of each case. A number of courts in catena of judgments have held that the Tribunal has to make judgment in each case.
21. In assessing damages, the compensation to be granted to the claimants for the injuries or death should be just and reasonable. His Lordship defined the words "just" and "reasonable" in the judgment delivered in case State of Haryana and another vs. Jasbir Kaur and others, JT 2003 (Supp-1) SC 60 : (2003) 7 SCC 484 as under :-
Suit No. 314/10 Page no. 10/16 11"7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind F.A. O. No. 179 of 1990 and others connected matters that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression " which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non arbitrary, if it is not so it cannot be just."Suit No. 314/10 Page no. 11/16 12
22. This judgment was followed by the Apex Court in case New India Assurance Co. Ltd. v. Satender and others, JT 2006 (10) SC 234. The principle of determination of compensation was considered on the rule of restitution in integrum which means that the compensation is measured at the cost of repair or repairing the original position applies only when if and so far as the original position can be restored. If not possible, the Tribunal must endeavor to give fair equivalent in money. Bodily injury shall be treated as deprivation which entitled the claimant to damages. The compensation awarded should not be a token compensation but should be an adequate and reasonable to achieve the statutory goal. Way back in the year 1998, the Apex Court in R.D. Hattangadi's case (supra) classified the damages to be awarded to the F.A.O. No. 179 of 1990 and others connected matters injured as pecuniary and non-pecuniary and observed that pecuniary damages are those which the victim had actually incurred which are capable of being measured in terms of money, whereas, non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. The Apex Court further appreciated these two concepts while describing pecuniary damages as under :-
"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.
Non-pecuniary damages:So far as non pecuniary damages are concerned, they may include :
Suit No. 314/10 Page no. 12/16 13i) 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 us unable 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; and
iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
The Apex Court while defining the pain and sufferings and loss of amenities of life, observed that the special circumstances of the claimant have to be taken into account including the age, unusual deprivation he has suffered and affect thereof on his future.
23. Respectfully and sufficiently guided as above, in the present case the important aspects in the pleading which need consideration are that the petitioner is a young boy of mere 23 years of age and it cannot be lost sight that the disability of lower limb of any person would sink a sense of fractured human body in the mind and hence forth in future such a person would take all his decisions of life being fully aware that his physical capacity has been compromised. A sense of hesitation has been forced upon him and thus he would be entitled to compensation for loss of amenities and discomforts. The non-pecuniary compensation to the petitioner is assessed as under:
Suit No. 314/10 Page no. 13/16 14 (a) Pain and suffering 50,000
(b) Damages as to enjoyment of life and 75,000
disfigurement
Total 1,25,000
The petitioner claimant is thus entitled to following compensation:
Loss of future earning Rs. 25,05,600/-
Travelling expenses, Special Diet and other
miscellaneous expenses Rs. 40,000/-
Non pecuniary as above Rs. 1,25,000/-
________________
Total Rs. 26,70,600/-
________________
Relief
24. Petitioner is awarded to Rs.26,70,600/- only as compensation and award is passed accordingly in favour of the petitioner and against the respondent jointly and severally and petitioner is also entitled to interest @ 9% per annum from the date of filing of the petition viz 12.10.10 till deposit of the award amount by way of cheque with the S.B.I, Saket Courts Complex and liability shall be discharged by R3 by depositing the award amount within 30 days from the date of order, as validity of insurance policy of offending vehicle on the date of accident is admitted by the insurer.
25. Respondent no.3 is directed to directly deposit the cheques with SBI Bank, Saket Courts complex branch within 30 days from today and in case of default, penal interest @ 12 % per annum shall be given from the date of filing of delay till deposit of the awarded amount on the account of petitioner.
Suit No. 314/10 Page no. 14/16 1526. On deposit of award amount 40 % be credited to injured/petitioner and rest of the amount shall be invested as under by opening a Fixed Deposit Account in the name of the petitioner :-
i. Fixed Deposit in respect of 10 % amount be deposited for petitioners for one year, ii. Fixed Deposit in respect of 10 % amount be deposited for petitioners for two years, iii. Fixed Deposit in respect of 10 % amount be deposited for petitioners for three years, iv. Fixed Deposit in respect of 10 % amount be deposited for petitioners for four years, v. Fixed Deposit in respect of 10 % amount be deposited for petitioners for five years, vi. Fixed Deposit in respect of 10 % amount be deposited for petitioners for six years,
27. Interest of aforesaid fixed deposits be credited automatically monthly in the saving bank account of the petitioner.
28. Withdrawal from the aforesaid saving bank account shall be permitted to claimant after due verification and the Bank shall issue photo identity card to claimant to facilitate identity.
29. No cheque book be issued to claimant without the permission of this court.
30. The original fixed deposit account book shall be retained by the Bank in the safe custody. However, the original pass book shall be given to claimant along with the photocopy of the FD account book/receipt.
31. On maturity, the FDR amount shall be directly credited in the saving bank account of the petitioner. No loan, advance or withdrawal shall be allowed on the said fixed deposit account without the permission of this court. Half yearly statement of account be filed by the Bank in this court.
32. On the request of claimant the Bank shall transfer the Saving Account to any Suit No. 314/10 Page no. 15/16 16 other branch of SBI, Saket Court according to his convenience.
33. Claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account in bank.
34. Let for the identification of the petitioner, the first copy of the petition wherein photograph of the petitioner is affixed, be annexed with the award.
35. Award is passed accordingly. File be consigned to record room only after compliance by insurance company by depositing the award in the manner as stated above. Be awaited for compliance for 14.03.2013.
Pronounced in the open court
on 14.01.2013 VINEETA GOYAL
PO : MACT (SOUTH-01)
14.01.2013
Suit No. 314/10 Page no. 16/16