Delhi District Court
Smt. Sarita Vishnoi vs Gurjeet Singh S/O Sh. Manmohan Singh ... on 22 April, 2015
IN THE COURT OF MS. RAVINDER BEDI : PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL : KARKARDOOMA
COURTS : EAST DISTRICT : DELHI.
MAC PETITION NO. 134 OF 2012
UNIQUE I.D. NO. 02402C045372012
1.Smt. Sarita Vishnoi
W/o Sh. Chander Mohan Vishnoi .... MOTHER
2.Sh. Chander Mohan Vishnoi
S/o Sh. Ram Pal Singh .... FATHER
3.Master Abhishek Vishnoi
S/o Sh. Chander Mohan Vishnoi .... BROTHER
All R/o H.No.101/11, Commercial Plot, Civil Lines,
Near Bank of Maharashtra, Distt. Rampur, U.P. .... PETITIONERS
VERSUS
1.Gurjeet Singh S/o Sh. Manmohan Singh ....DRIVER/ACTUAL
R/o 5/191, Lalita Park, Laxmi Nagar, Delhi. OWNER
2.Birender Thakur S/o Sh. B.S. Thakur
R/o H.No.227, RPS Flat, Sheikh Sarai,
Phase1, New Delhi17. ....REGD. OWNER
3.National Insurance Company Ltd.
D.O. No.23, 106, Palika Bhawan,
R.K. Puram, New Delhi110066. .... INSURER
.... RESPONDENTS
MAC Petitions No.134/12 & 188/12 Page : 1/25
MAC PETITION NO. 188 OF 2012
UNIQUE I.D. NO. 02402C0233442012
Miss. Nikita Kumar D/o Sh. Satya Kumar
R/o A2/121B, Keshav Puram, Delhi110035. .... PETITIONER
VERSUS
1.Gurjeet Singh S/o Sh. Manmohan Singh .... DRIVER/ACTUAL
R/o 5/191, Lalita Park, Laxmi Nagar, Delhi. OWNER
2.Birender Thakur S/o Sh. B.S. Thakur
R/o H.No.227, RPS Flat, Sheikh Sarai,
Phase1, New Delhi17. ....REGD. OWNER
3.National Insurance Company Ltd.
D.O. No.23, 106, Palika Bhawan,
R.K. Puram, New Delhi110066. .... INSURER
.... RESPONDENTS
Represented by : Ms. Pooja Goel, Counsel for petitioners.
Respondent no.1 and 2 are ex parte.
Mr. R.K. Gupta, Counsel for respondent no.3.
Presented on : 18.04.2012
Reserved for Order on : 04.04.2015
Date of Award : 22.04.2015
J U D G M E N T
1. By this common judgment, I shall dispose off the two MAC Petitions No. MAC Petitions No.134/12 & 188/12 Page : 2/25 134/12 and 188/12 filed by the parents of deceased Shubhneesh Vishnoi @ Chirag and petitioner Ms. Nikita Kumar respectively in a road accident dated 18.03.2012. In the said accident, Shubhneesh Vishnoi aged 22 years sustained fatal injuries and petitioner Ms. Nikita Kumar suffered grievous injuries and resultant amputation of her left arm.
2. The FIR was registered on the complaint of one Shubham (injured). He stated that in the midnight of 17/18.03.2012, he alongwith his friends Gurjeet, Shikha, Shubhneesh Vishnoi, Nikita and Kavita @ Chhavi were coming back in a Car bearing registration no. DL1CM5719 (hereinafter referred to as the offending vehicle) to Laxmi Nagar after watching a movie in Great India Palace, Noida. The offending vehicle was driven by Gurjeet in a negligent and rackless manner and he was constantly being asked to drive carefully. At about 1.45 AM (night), the driver while driving so, hit the car against the divider, which further hit against the electricity pole which got broken. Due to impact, Kavita @ Chhavi, Shikha, Nikita Kumar and Shubhneesh Vishnoi suffered injuries and all were taken to LNJP Hospital. In the accident, Shubhneesh Vishnoi however succumbed to his injuries and Ms. Nikita Kumar suffered serious injuries and amputation of her left arm. A case FIR No. 207/12, u/sec. 279/338/304A IPC was registered at Police Station Shakarpur against respondent no.1.
MAC Petitions No.134/12 & 188/12 Page : 3/25
3. The respondent no.1 is the driver/owner in possession of offending vehicle, respondent no.2 is the registered owner and respondent no.3 is the Insurer of the offending vehicle, they all are jointly and severally liable to make the payment of compensation to the petitioners.
4. It is pertinent to mention that the respondents no.1 and 2 appeared on 18.04.2012 but thereafter did not turn up. They were proceeded ex parte during proceedings.
5. The respondent no.3 filed written statement in which it is admitted that the vehicle bearing No. DL1CM5719 was insured in the name of Sh. Birender Thakur vide Policy valid from 05.12.2011 to 04.12.2012.
6. Vide order dated 25.04.2013, in MAC no.134/12, following issues were framed by Ld. Predecessor :
1.Whether deceased Shubhneesh Vishnoi suffered fatal injuries in road side accident on 17/18.03.2012 involving vehicle i.e. Toyota Corrilla bearing registration no. DL1CM5719 being driven allegedly in a rash and negligent manner by R1?
2. To what amount of compensation, if any, the petitioners are entitled to and from whom?
3. Relief.
7. In MAC No.188/12 , following issues were framed on 25.04.2013 :
1.Whether petitioner suffered injuries in road side accident on 17/18.03.2012 involving vehicle i.e. Toyota Corrilla MAC Petitions No.134/12 & 188/12 Page : 4/25 bearing registration no. DL1CM5719 being driven allegedly in a rash and negligent manner by R1?
2. To what amount of compensation, if any, the petitioner is entitled to and from whom?
3. Relief.
8. In MAC No.134/12, Smt. Sarita Vishnoi, mother of deceased examined herself as PW1 and filed her affidavit Ex.PW1/A wherein all the facts which were stated in the petition have been reiterated. PW1 has relied upon documents i.e. ration card and her Election I Card as Ex.PW1/1 (colly.), Death Certificate of deceased as Ex.PW1/2, I.D. Card/Proof of deceased as Ex.PW1/3, Letter of Condolence issued from Institute of deceased as Ex.PW1/4, educational certificate of deceased as Ex.PW1/5 (colly.) and criminal case record as Ex.PW1/6 (colly.).
9. In MAC No.188/12, petitioner Ms. Nikita Kumar examined herself as PW1 and filed her affidavit Ex.PW1/A. She relied upon the documents i.e. her Voter I Card as Ex.PW1/1, photograph of injury as Ex.PW1/2, Criminal Case Record as Ex.PW1/3, medical bills of Rs.2,200/ as Ex.PW1/4, treatment record as Ex.PW1/5, educational qualification documents as Ex.PW1/6, Certificate of Participation in Sports as Ex.PW1/7, Permanent Disability Certificate as Ex.PW1/8 and quotation issued by P&O International Inc., Vimhans Artificial Limbs Centre as Mark A. She has also examined PW2 Sh. Daanveer Singh, Record Clerk MAC Petitions No.134/12 & 188/12 Page : 5/25 from Lok Nayak Hospital who has proved the bunch of treatment record of petitioner as Ex.PW2/1 (colly.). PW3 Sh. Phool Chand, Clerk from M/s. P&O International Inc. has proved authority letter as Ex.PW3/1, Quotation of Rs.20,91,318/ as Ex.PW3/2, Booklet showing artificial limb for implantation as Ex.PW3/3 and quotation letter issued to petitioner as Ex.PW3/4. PW4 Dr. Gagan Kansal, Sr. Resident, Department of Orthopaedics, Govt. Bhagwan Mahavir Hospital, Pitampura has proved the Permanent Disability Certificate of 85% in relation to left upper limb as Ex.PW4/1. PW5 (inadvertently mentioned as PW4) Dr. Ashish Goyal, Specialist (Ortho), Bhagwan Mahavir Hospital has proved the Disability Certificate already Ex.PW4/1.
10.In both cases, respondent no.2 has examined himself as R2W1 and filed his affidavit Ex.R2W1/A. He relied upon the DAR as Ex.R2W1/1. In his cross examination, he has also proved legal notice as Ex.R2W1/R3A and its reply given by him as Ex.R2W1/R3B.
11.I have heard Ld. Counsels for parties, perused the entire material carefully in the light of relevant statutory provisions of law and my findings on the issues are as follows : ISSUE NO.1 (IN BOTH CASES) :
12.For succeeding in a claim petition filed under Section 166 of the M.V. MAC Petitions No.134/12 & 188/12 Page : 6/25 Act, it is for the petitioners to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver. This is sine qua non for getting the relief.
13.In MAC No. 134/12, PW1 Smt. Sarita Vishnoi, mother of deceased testified that in the intervening night of 17/18.03.2012 at about 1.45 AM, her son had received fatal injuries in a road accident due to rash and negligent driving of Car bearing No. DL1CM5719 driven by respondent no.1. Eye witness namely Ms. Nikita Kumar testified that in the said accident, she suffered serious injuries which was caused due to the negligent and reckless driving of respondent no.1. She testified that all the occupants in the car were trying to warn the driver to drive at slow speed and on correct side of the road but the driver did not pay any heed to the same and continued driving so in a zigzag and reckless manner.
14.I have looked into the criminal case record, site plan, mechanical inspection report as well as the Chargesheet filed by IO. The respondent no.2 admitted to be the registered owner and filed his affidavit as Ex.R2W1/A. The driver did not come up during entire proceedings and stood ex parte. The facts of the accident themselves clearly speak out the negligent and rash manner in which the offending car was being driven by the respondent no.1 and hit against the divider and then broke the MAC Petitions No.134/12 & 188/12 Page : 7/25 electricity pole.
15.Police after investigation has filed chargesheet against respondent no.1 under Sections 279/338/304A IPC in case FIR No.207/12 Police Station Shakarpur which is primafacie suggestive of negligence of respondent no.1 in driving the vehicle at the time of accident. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Hon'ble Supreme Court held :
"8. .... In a petition under Section 166 of the Act, the petitioners were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder :
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the petitioners. The petitioners were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
16.The report in Bimla Devi (Supra) was relied on by the Hon'ble Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
17.In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors. : 2009 ACJ 287, the Hon'ble High Court of Delhi has held :
MAC Petitions No.134/12 & 188/12 Page : 8/25 "..... On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not requires to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver".
18.In a recent judgment of Hon'ble Delhi High Court in United India Insurance Company Ltd. Vs. Deepak Goel & Ors., 2014 (2) T.A.C. 846 (Del.), it was held that in a case, where FIR is lodged, chargesheet is filed, then the documents mentioned above are sufficient to establish the fact that the driver of the offending vehicle was negligent in causing the accident particularly when there was no defence available from his side.
19.In case of Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh : 2009 (3) AD (Delhi) 310, an adverse inference was drawn because driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was MAC Petitions No.134/12 & 188/12 Page : 9/25 noted that there was nothing on record to show that the petitioner had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case. The issue thus stands decided in favour of petitioners holding that the accident happened as a result of negligent driving by respondent no.1, in which petitioner Shubhneesh Vishnoi sustained fatal injuries and petitioner Ms. Nikita Kumar received grievous injuries. ISSUE NO.2 :
To what amount of compensation, the petitioners are entitled to?
MAC No.134/12 , Smt. Sarita Vishnoi, mother of deceased/PW1
20.In deposed that her son was 22 years of age and was pursuing B.Tech. (EC) from Krishna Institute of Management and Technology, Rampur Road, Muradabad, U.P. He was also taking home tuitions and coaching classes of various students. She deposed that her son was a hardworking and an intelligent student and was soon to complete his B. Tech (Electronics & Communication Engineering). PW1 stated that her son was taken to LNJP Hospital where he was declared as 'Brought Dead'. As per Postmortem Report No. 426/12, the cause of death was opined as 'due to haemorrhagic shock consequent upon blunt force impact to chest and abdomen with all the injuries as antemortem in nature and possible in MAC Petitions No.134/12 & 188/12 Page : 10/25 road accident'.
21.From the documents i.e. Ex.PW1/3 and Ex.PW1/5, the date of birth of deceased is shown as 15.08.1990. The age of deceased, thus, is taken as 22 years as on the date of accident. Deceased was pursuing his second year of B.Tech (EC) and was also engaged in taking home tuitions. Soon he was to complete his course. He could have secured a good job after completion of his Engineering Course. In "Meenu Tognatta & Anr. Vs National Insurance Co. Ltd. and ors.", MAC App No. 238/2012. Hon'ble High Court of Delhi had taken into consideration the capacity of deceased to earn on the basis of their educational qualification and considered the potential income to be Rs.18,000/ p.m. In the case of Haji Zainullah Khan (Dead) by Lrs. v. Nagar Mahapalika, Allahabad, 1994 (5) SCC 667, death of a young boy, aged 20 years took place in an accident which happened in the year 1972. The deceased was a student of B.Sc. 1st year (Biology). A compensation of Rs.1,46,900/ was increased an rounded off to Rs.50,000/.
22.In Ramesh Chand Joshi v. New India Assurance Company MAC APP. 212213/2006 decided on 20.01.2010, Hon'ble High Court took the potential income of a B.E. (BioTechnology) First year student of Delhi College of Engineer (DCE) Rs.38,333/ per month. The gross salary of a MAC Petitions No.134/12 & 188/12 Page : 11/25 Group 'A' officer in the Central and the State Govt. on the date of the accident i.e. 19.11.2004 on the basic pay of Rs.8,000/ was Rs.17,980/ per month. If a qualified degree holder Engineer joined a Govt. Service in the year 2004, he would get a salary of Rs.8,000/ plus all allowances.
23.Considering the settled law, this court can resort to some guess work when there is no definite evidence regarding earning of deceased or where deceased is a student. The capacity of deceased can be considered to arrive at just compensation. From the record, what emerges out is that deceased was pursuing B. Tech (EC) and was in his second year. Had he got a placement in some Private Sector, he would have earned good salary. He was also taking home tuitions and earning some amount. It is not practical to expect petitioners to provide documentary evidence in regard to the home tuitions. [Sanjay Kumar Vs. Ashok Kumar & Anr., 2014 ACJ 653 of Hon'ble Apex Court; Ramachandrappa Vs. Manager Royal Sundaram Alliance Insurance Co., 2011 ACJ 2436 (SC)]. Under the facts and circumstances, the potential income of deceased can be assessed as Rs.20,000/ p.m.
24.In view of judgments rendered in "Sarla Verma & Ors. Vs. DTC & Anr. (2009) ACJ 1298", "National Insurance Co. Ltd. Vs. Shyam Singh & Ors., (2011) 7 SCC 65" and in "HDFC Ergo General Insurance Co.
MAC Petitions No.134/12 & 188/12 Page : 12/25 Ltd. Vs. Lalta Devi & Ors. decided on 12.01.2015 by Hon'ble Delhi High Court", while assessing the dependency, in case of death of an unmarried, the multiplier of 15, as per the age of the mother of deceased is to be taken since as per Ration Card and PAN Card, age of mother of deceased named Smt. Sarita Vishnoi was 39 years as on date of accident.
25.So far the issue of Future Prospects concerns, I state that from the educational record, there is nothing to corroborate the fact that the deceased was a bright or an extraordinary student. He was studying from Gautam Budh Technical University, Lucknow. Another document from Mahamaya Technical University, Noida shows his result for the year 201112. These documents shows him just an ordinary student, pursuing education from a little known University.
26.In a recent judgment of Hon'ble Delhi High Court in HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors. (Supra), in which the judgment of Hon'ble Apex Court in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65 and in Union of India & Ors. Vs. S.K. Kapoor, (2011) 4 SCC 589 and further of New India Assurance Company Ltd. Vs. Harpal & Others, MAC APP 138/11 decided on 06.09.2013 were discussed and the three Judge Bench Decision in Reshma Kumari & Ors. (Supra) was held to be taken as a binding MAC Petitions No.134/12 & 188/12 Page : 13/25 precedent on the aspect of future prospects. Therefore, relying upon the judgment of Hon'ble High Court of Delhi in HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors., I am of the view that the petitioners since have not been able to come up with any evidence with regard to the good future prospects, are not entitled to any addition towards the same.
27.The deceased was unmarried and aged 22 years at the time of accident. In view of "Sarla Verma (Supra)", half from income of deceased has to be deducted towards his living expenses. After such deduction, the contribution to the family (dependent) comes to Rs.10,000/ (Rs. 20,000.00 - Rs.10,000.00 i.e. 1/2). Thus, the compensation under the head Loss of Dependency by applying the multiplier 15 as per age of mother of deceased, would be Rs.18,00,000/ (Rs.10,000.00 x 12 x 15).
28.In view of the judgments in Rajesh & Ors. Vs. Rajbir Singh & Ors. (Supra) and another in Kalpana Raj & Ors. Vs. Tamilnadu STC, (2014) ACJ 1388, the petitioners are also entitled to a sum of Rs.1,00,000/ towards loss of Love and Affection, Rs. 10,000/ towards Loss of Estate and Rs.25,000/ towards Funeral Expenses.
29.The petitioners thus have become entitled for the total amount of compensation towards all the heads, which is as follows : MAC Petitions No.134/12 & 188/12 Page : 14/25 Sl. No. On Account of Amount (Rs.) 1 Loss of dependency Rs.18,00,000.00 2 Loss of Love and affection Rs. 1,00,000.00 3 Loss of Estate Rs. 10,000.00 4 Funeral Expenses Rs. 25,000.00 Total = Rs.19,35,000.00 I accordingly award an amount of compensation of Rs.19,35,000/ in favour of the claimant and against respondents.
IN MAC NO. 188/12 :
30.PW1, petitioner Miss. Nikita Kumar stated that on 18.03.2012, she was admitted to LNJP Hospital in ICU. She was discharged from the hospital on 09.05.2012. She sustained serious critical injuries of pelvic fracture with traumatic amputation of her left upper limb above elbow, ribs fracture and back bone fracture. As per report from MCO, Lok Nayak Hospital, she was advised by Senior Doctor (Ortho )for strict immobilization till April 2012 to prevent displacement of the fractured fragments of the spine and spinal cord compression. She went into septicemia and required urgent debridement of dead tissues and arms and forearm and faced life risk in post operation period. Thus, she was taken for urgent debridement. Since the whole upper limb was not salvagable, it had to be amputated.
MAC Petitions No.134/12 & 188/12 Page : 15/25
31.Petitioner Ms. Nikita suffered permanent disability of 85% in relation to her left upper limb. PW4 Dr. Gagan Kansal and PW5 Dr. Ashish Goyal have proved the Disability Certificate of petitioner as Ex. PW4/1 and their testimony has gone uncontroverted and unrebutted. Hon'ble Supreme Court enumerated the principles for granting the compensation payable to road traffic accident victims. In the case of Raj Kumar v.
Ajay Kumar & Anr., MANU/SC/1018/2010, Civil Appeal No. 8981/2010 decided on 18.10.2010, following principles were laid down by the Hon'ble Supreme Court for determining compensation payable to road traffic accident victims :
i) The compensation payable to the claimant who is a victim of road accident should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equatable manner.
ii) Compensation payable in injury cases is payable under two heads. They are pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) (a) Loss of earning (and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future medical expenses. Nonpecuniary damages (General Damage) MAC Petitions No.134/12 & 188/12 Page : 16/25 are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities and/or loss of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).
iii) In routine personal injury cases compensation is awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation is granted under any of the heads (ii) (b), (iii) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.
32.The petitioner is entitled for the compensation on account of future loss due to disability. While assessing future loss, her functional disability has to be assessed, which is to be judged with reference to the nature of work being performed by her.
33.This Court has personally examined the petitioner. She stated that she was 21 years old at the time of accident and was doing final year of her Graduation from Hansraj College, Delhi University. She stated that she was a National Level Player of Table Tennis and was also working as a Tele Caller Executive in M/s. P.C. Care Pvt. Ltd. at Gurgaon, Haryana and drawing a salary of Rs.15,000/ p.m. The petitioner has suffered the loss of earning capacity and inability to do her routine work efficiently on account of amputation of her left arm. Various Certificates of Participation in Sports shows that she was an active participant in sports MAC Petitions No.134/12 & 188/12 Page : 17/25 and the injuries have permanently disabled her, thereby, reducing her enjoyment of life and full pursuit of all the activities she was engaging prior to the accident. Loss of a limb causes an immense distress to a person for the rest of his life. Adding to this is the physical and permanent mental suffering caused by her medical condition itself, which has a great affect on her future life. I am placing reliance on the dictum of law laid down in "Govind Yadav Vs. New India Assurance Co.Ltd. 2012 ACJ 28 (SC) and in B.N. Kumar Vs. DTC, 118 (2005) DLT 36"; "K. Shankar V/s. Pallavan Transport Corporation 2001 ACJ 488"; "M. Jaganathan Vs. Pallavan Transport Corporation 1999 ACJ 366" and in "Bhagwan Singh Meena Vs. J.K. Tiwari 1999 ACJ 1200".
34.In Sri Kumaresh Vs. Divisional Manager, National Insurance Co. Ltd, 2011 (VI) AD (SC) 164, the Appellant aged 20 years suffered amputation of his right leg in the accident. Hon'ble Apex Court held that injury will not only severely affect his future prospects of earning, but will also permanently disable him for life and suffer necessary discomforts which accompany living without a leg. Hon'ble Apex Court, thus, granted Rs. 10,00,000/ for Pain & Suffering, Loss of income during treatment, medical expenses for whole life, loss of future earnings, loss of amenities and enjoyment of life including loss of marital prospects, conveyance MAC Petitions No.134/12 & 188/12 Page : 18/25 charges and food and nourishment.
35.In Arun Sondhi Vs. Delhi Transport Corporation, I (2001) ACC 615, and Siddhi Gopal Dixit @ Siddh Gopal Dixit Vs. Siya Ram & Ors. MACT appeal no. 573/2009 decided on 03.03.2010 and in case of Oriental Insurance Co. Ltd. Vs. V.S. Vijay Mittal, (2008) ACJ 1300, the Principles related to award of nonpecuniary compensation towards Pain and Suffering, Loss of Amenities of life and Disfiguration were discussed. In the observations given by their lordships in the case in Vijay Kumar Mittal (Supra), it was observed as under : "... From the aforenoted judicial decisions, a trend which emerges is that between the years 1985 and 1990, the courts have been awarding about Rs.3,00,000/ under the head 'non pecuniary damages' for amputation of leg resulting in permanent disability of 50% and above".
36.Ld. counsel requested for considering the functional disability of the petitioner as 85% in relation to the whole body in view of the judgment in AIR 2014 (SC) 1052. The factual matrix of the case is distinct as in that case, the injured was working as a vegetable vendor and had his leg amputated which had adversely affected his work of selling vegetables in the cart which required 100% mobility. In present case, considering the facts and circumstances, the functional disability is thus, taken as 60% in relation to her whole body, in view of dictum of "Raj Kumar V/s. Ajay MAC Petitions No.134/12 & 188/12 Page : 19/25 Kumar & Anr. (2011) 1 SCC 343".
37.Petitioner has suffered loss of expectation of life i.e., her normal life span is shortened due to the injuries, which has caused her disappointment and stress. Doing routine work besides giving a jolt to her sports career throughout her life, the accident has affected her capacity greatly. Therefore, the petitioner has become entitled for compensation of Rs. 3,00,000/ towards Non Pecuniary Heads.
38.The injuries have reduced the scope of her bright future prospects including her marriage opportunities. Therefore, keeping in mind this fact, she is awarded compensation of Rs.3,00,000/ towards Loss of marital prospects.
39.As per Ex.PW1/6 and PW1/7, the date of birth of petitioner is shown as 23.07.1991. Her age is taken as 21 years as on the date of accident. She testified that she was also earning Rs.15,000/ pm. and was working as Tele Caller Executive in M/s. P.C. Care Pvt. Ltd. in Gurgaon. Petitioner was in IIIrd year of her Graduation Course. Nothing has been placed on record in support of the earnings. In the absence thereof, the minimum wages of a Matriculate can be taken into consideration. Therefore, the monthly income of deceased is taken as Rs.8,112/ as per the minimum wages, which were applicable at the relevant time.
MAC Petitions No.134/12 & 188/12 Page : 20/25
40.In a recent judgment in HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors., (Decided on 12.1.2015), it was observed that in view of the observations of Hon'ble Apex Court in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65 and further in the judgment of Hon'ble Apex Court in Union of India & Ors. Vs. S.K. Kapoor, (2011) 4 SCC 589, the three Judge Bench Decision in Reshma Kumari & Ors. (Supra) was held to be taken as a binding precedent. Therefore, in view of the judgment of Hon'ble High Court of Delhi in HDFC Ergo General Insurance Co. Ltd. Vs. Lalta Devi & Ors., I am of the view that in the absence of any evidence with regard to the good future prospects, the claimants are not entitled to any addition of 50% or 30% towards this. Thus, she is awarded an amount of Rs.10,51,315/ (8,112/ x 12 x 18 x 0.60) under the head Future Loss of Income.
41.Petitioner has placed on record the medical bills of Rs.2,200/. Thus, an amount of Rs.2,200/ is awarded to her, under the head Medical Bills.
42.With the kind of injuries suffered by her, it can be safely assumed that she would have suffered loss of earning capacity at least for a period of six months. She is awarded Rs.48,672/ (Rs.8,112.00 x 6) for six months for Loss of Wages.
43.The petitioner is also awarded a compensation of Rs.20,000/ for Special MAC Petitions No.134/12 & 188/12 Page : 21/25 Diet and Rs.20,000/ towards loss on account of conveyance charges.
44.A victim of an accident has to be compensated in terms of money even if gratuitous services are rendered by a family member. In Delhi Transport Corporation and Anr. Vs. Lalita, AIR 1981 Delhi 558, Hon'ble High Court of Delhi has held that there cannot be any deduction if domestic help is obtained from a family member. This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP.No.762/11 dated 04.07.12. Therefore, on a lump sum basis, the petitioner is awarded a compensation of Rs.30,000/ for six months as Attendant's Charges.
45.PW3 Sh. Phool Chand from M/s. P&O International Inc., Vimhans Artificial Limbs Centre, Vimhans Hospital appeared and brought the quotation for the artificial limb Ex.PW3/2 alongwith Booklet showing the artificial limb appropriate for the patient as Ex.PW3/3. The original quotation letter with the signatures of the official concerned as Ex.PW3/4. The witness testified that the cost of the mechanical hightech elbow joint prosthesis i.e. cosmetic limb was around Rs.20,91,318/ with warrantee period of one year. In case of V. Sudha Vs. P. Ganpathi Bhatt & Anr., IV (2013) ACC 329 (SC), Hon'ble Apex Court observed that in such cases, the future medical expenses including the necessary treatment can MAC Petitions No.134/12 & 188/12 Page : 22/25 be considered while determining compensation. Since the amputation suffered as a result of accident has necessitated the functional Prosthesis Restoration option because of above elbow amputation, the petitioner requires an artificial limb, which is required to be changed from time to time, she is awarded a sum of Rs.20,00,000/ towards the expenses to be incurred in future for purchasing an artificial limb.
46.Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the petitioner : 1 Towards Non Pecuniary Heads Rs. 3,00,000.00 2 Towards future loss of income Rs.10,51,315.00 3 Towards servant/attendant for 6 months Rs. 30,000.00 4 Towards conveyance and special diet Rs. 40,000.00 5 Towards medical bills Rs. 2,200.00 6 Towards loss of earning for 6 months Rs. 48,672.00 7 Towards Expenses of Artificial Limb Rs.20,00,000.00 8 Towards loss of Marriage prospects Rs. 3,00,000.00 Total = Rs.37,72,187.00 Therefore, petitioner Ms. Nikita Kumar is entitled to Rs.37,72,187/ which shall be the just compensation to her.
LIABILITY
47.Since Insurance company has not denied the policy as on date of accident, MAC Petitions No.134/12 & 188/12 Page : 23/25 therefore it is liable to pay the compensation amount. There being no evidence of violation of the policy conditions and there being nothing to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. It is the insurance company/respondent no.3, which shall make good the compensation in terms of the accepted policy.
RELIEF
48.Both petitions stand allowed. In MAC No.134/12, the respondent No. 3/Insurance company is directed to pay the compensation of Rs. 19,35,000/ to the petitioner no.1 (mother of deceased Shubhneesh Vishnoi) and in MAC No.188/12, Rs.37,72,187/ to the petitioner Ms. Nikita Kumar within one month. Following the judgment of Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, the respondent no.3 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
, out of total award amount, let an amount of Rs.
49.In MAC No.134/1255,000/ in favour of the petitioner no.1 (mother of deceased) be released forthwith and remaining amount shall be kept in her name in the form of Three FDRs of equal amount for a period of ten years each with release of periodical monthly interest to her.
MAC Petitions No.134/12 & 188/12 Page : 24/25 , out of total award amount, let an amount of Rs.
50.In MAC No.188/1272,187/ in favour of the petitioner Ms. Nikita Kumar be released forthwith and remaining amount shall be kept in her name in the form of Seven FDRs of equal amount for a period of seven years each with release of periodical monthly interest to her.
51.On request of petitioners, Bank shall transfer the amount to the Savings Account of petitioners.
52.The award amount alongwith interest be deposited by respondent no. 3/Insurance Company, within 30 days in the court. In case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
File be consigned to record room.
Announced in the open Court
Dated : 22nd April, 2015 (MS. RAVINDER BEDI)
PRESIDING OFFICER MACT (EAST)
DISTT COURTS/DELHI.
MAC Petitions No.134/12 & 188/12 Page : 25/25
MAC Nos.: 134/12 & 188/12
22.04.2015
Present : Ld. Counsel for parties.
Vide separate common judgment announced in the open court today, both the petitions stand allowed.
In MAC No.134/12, the respondent No.3/Insurance company is directed to pay the compensation of Rs.19,35,000/ to the petitioner no.1 (mother of deceased Shubhneesh Vishnoi) and in MAC No.188/12, Rs. 37,72,187/ to the petitioner Ms. Nikita Kumar within one month. Following the judgment of Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, the respondent no.3 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
In MAC No.134/12, out of total award amount, let an amount of Rs.55,000/ in favour of the petitioner no.1 (mother of deceased) be released forthwith and remaining amount shall be kept in her name in the form of Three FDRs of equal amount for a period of ten years each with release of periodical monthly interest to her.
In MAC No.188/12, out of total award amount, let an amount of Rs.72,187/ in favour of the petitioner Ms. Nikita Kumar be released forthwith and remaining amount shall be kept in her name in the form of Seven FDRs of equal amount for a period of seven years each with release of periodical monthly interest to her.
On request of petitioners, Bank shall transfer the amount to the Savings Account of petitioners.
The award amount alongwith interest be deposited by respondent no.3/Insurance Company, within 30 days in the court. In case, even after MAC Petitions No.134/12 & 188/12 Page : 26/25 passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
List for reporting compliance on 06.06.2015.
(MS. RAVINDER BEDI)
PO MACT (EAST)/KKD./DELHI/22.04.2015
MAC Petitions No.134/12 & 188/12 Page : 27/25