Delhi District Court
Sh. Amra Ram (Aged About 32 Years) vs Sh. Shamsher Singh on 16 February, 2008
1
IN THE COURT OF SH. DILBAG SINGH : PRESIDING
OFFICER : MACT : DELHI
Petition No. : 80/06
Date of filing of Petition : 02.05.2006
Date of conclusion of final arguments/
Date of reservation of judgment : 07.02.2008
Date of Award : 16.02.2008
SUIT NO. 80/06
Sh. Amra Ram (aged about 32 years),
S/o Dula Ram,
R/o 442, Jaitasar, Tehsil Sujangarh,
Distt. Churu, Rajasthan
..... Petitioner
Versus
1 Sh. Shamsher Singh,
S/o Sh. Zile Singh,
R/o 406, Village & Post Office
Ghevra, Delhi - 85.
2 Sh. Sansar Singh,
S/o Sardar Singh,
R/o C-II/181, Sector-3,
Rohini, Delhi-85.
3 National Insurance Co. Ltd.
Registered Office: 3, Middleton Street,
Calcutta-700071
2
Branch Office :
2881, Hardian Singh Road,
Karol Bagh, New Delhi-110005.
...Respondents
AWARD 1 By this judgment I shall dispose of a petition u/s 166 & 140 of Motor Vehicles Act, 1988, as amended upto date (hereinafter referred to as 'the Act') for grant of compensation wherein an amount of Rs. 8,00,000/- has been claimed as compensation on account of vehicular accident. 2 Brief facts as cullable from the records are to be stated first. On 20.01.2005 petitioner Sh. Amra Ram was alighting from front gate of the bus bearing no. DL-1PB-0716. In the process of deboarding respondent no.1 started the bus, as a result of which petitioner fell down. Respondent no.1 suddenly started the bus without caring and waiting for the petitioner to deboard completely. Respondent no.1 was very rash and negligent in driving and contravened the traffic norms. Case FIR No. 17/05 at Police Station Roop Nagar U/s 279/337 IPC was registered. Respondent no.1 is the driver, respondent 3 no.2 is the owner and respondent no.3 is the insurer of the offending bus bearing no. DL-1PB-0716.
3 Notice of the petition was given to the respondents. Respondent no.1 in his written statement has taken the preliminary objections concerning maintainability of the petition viz-a-viz accident taking place due to sole negligence and carelessness of the petitioner, no cause of action being there in favour of the petitioner, petitioner coming to the court with unclean hands, claim of the petitioner being highly exaggerated and imaginary one etc. In para-wise reply on merits the assertions of the petitioner have been controverted. Registration of criminal case has been stated to be as a matter of record. Factum of accident is admitted but rashness and negligence has been imputed on the petitioner. Respondent no.2 was proceeded exparte vide orders dated 10.10.2006 of my Ld. Predecessor on account of his absence despite having been served by registered A.D. 4 Respondent no.3 in its written statement has taken the usual statutory objections concerning breach of terms and 4 conditions of insurance policy. Fact of bus no. DL-1PB-0716. Being insured vide policy no. 6301374 with validity period from 28.05.2005 to 27.05.2006 (date of accident 20.01.2005) in the name of Sh. Sansar Singh (respondent no.2) , has been admitted.
5 On 05.02.2007, from the pleadings of parties, the following issues were framed :
1. Whether the petitioner Sh. Amra Ram received grievous injuries on account of rash and negligent driving of bus bearing no. DL-1PB-0716 driven by respondent no.1 on 20.01.2005?
2. If the answer of issue no.1 is in affirmative, then to what amount of compensation is petitioner entitled and from whom?
3. Relief.
6 On 30.05.2007, application U/s 170 of the Act, having been moved by the insurance company was allowed on account of non-participation in the proceedings by respondent 5 no.2.
7 Petitioner in support of his case has examined himself as PW-1 and Sh. B.L. Gupta as PW-2. PW-1 has proved his affidavit as Ex. PW1/X and documents as Ex. PW1/1 to PW1/11. Dr. B.L. Gupta has testified about the disability aspect of the petitioner. Per contra respondents have not examined any witness and evidence was closed in pursuance to the statement of counsel for respondent no.1 on 23.07.2007 and counsel for respondent no.3 on 12.09.2007. 8 Arguments were heard at the bar. Counsel Sh. Dinesh Rohilla for the petitioner, counsel Sh. N.K. Jolly for respondent no.1 and counsel Sh. D.K. Sharma for respondent no.3 have been heard at length. They have argued in consonance with their respective stands taken during the proceedings.
9 I have carefully perused the records of the case and considered the submissions. My issue-wise findings are as follows :
6
ISSUE No.1.
10 Petitioner in his affidavit Ex. PW1/X has testified in consonance with his assertions of the petition to the effect that driver of the bus did not wait for complete deboarding of the petitioner and started the bus. He has stated so in para no.2 and repeated the same in para no.5. He was cross-examined by Sh. N.K. Jolly counsel for respondent no.1. He denied the suggestion that at the place of accident there was no bus stop. He has also denied the suggestion that petitioner was getting down from a running bus. This witness has also denied the suggestion that accident took place on account of mistake of the petitioner and not on account of rashness and negligence of the driver of the bus.
Thus from the testimony of PW-1 rashness and negligence stands clearly brought on record and I have no hesitation to return finding that petitioner has established the issue no.1 in his favour.
11 Not only this, petitioner has placed on record 7 certified copies of records of criminal case as Ex. PW1/2 collectively. Perusal of the certified copies of records of criminal case reveals that criminal law was set in motion vide DD No. 18-A. MLC reveals that Amra Ram sustained injuries in a road traffic accident. Site plan reveals that driver of bus no. DL-1PB-0716 caused the accident with Amra Ram, petitioner. Perusal of site plan reveals that case was registered against the driver of bus no. DL-1PB-0716 U/s 279/338 IPC. Medical records corroborate the version of the petitioner concerning sustainment of injuries and thus it can be said that from the records of criminal case also an inference about rashness and negligence can be drawn on the part of respondent no.1. Respondent no.1 has not stepped in the witness box for which an adverse inference has to be drawn against him. Reliance is placed on New India Assurance Company Vs. Dhanesh Kumar reported as 1 (1994) ACC 561 Delhi.
12 In view of the above discussion, issue no.1 is decided in favour of the petitioner and against the respondents. 8
Issue No.2.
13 Assessment in injury cases is beset with difficulties. No amount of money can be said to be a sufficient compensation qua the injuries sustained in an accident. The reason being that an injured part cannot be brought back in the same original position. Some principles have been evolved for assessment. Restitution to original position is one of the most important principles(restitutio in integrum). Assessment is done under pecuniary and non-pecuniary heads. My assessment under different heads is as follows :
Treatment expenses
14 Petitioner in context of this head has testified that he has placed on record treatment bills to the tune of Rs. 50,080/-. PW-1 has proved the bills as Ex. PW1/6 collectively. Ld. Counsel for the insurance company was given an opportunity to bring to my notice defect, if any, in the treatment bills or the totalling. Nothing has been brought to my notice. Accordingly I have no hesitation in awarding a sum of Rs. 50,080/- (say Rs. 50,100/-) under the head of treatment 9 expenses.
Loss of earning 15 In the affidavit Ex. PW1/X, it has been testified that petitioner was advised bed rest for about 12 months. He has also testified that in view of his continued absence for a very long period, his services were terminated by the employer. During the course of arguments loss of earning was claimed for a period of 12 months. Counsel for Insurance Company vehemently refuted the assertions of Ld. Counsel for the petitioner in this regard. It was argued that loss of earning comes under the head of pecuniary damages and cogent evidence should have been brought on record by the petitioner. It has been argued that petitioner examined Dr. B.L. Gupta, but did not got elicited from him about the time required in healing of the injuries.
In view of the above, the medical records are required to be perused. First record in this regard is the MLC of Hindu Rao Hospital dated 20.01.2005. In this MLC it has been opined that petitioner sustained fracture of subtrochentric of right femur with fracture of post condyle femur left, femur with 10 fracture of ulna styloid with fracture of metacarpal base third of hand. There is another document of Parmarth Mission Hospital Ex. PW1/3 which shows that petitioner had sustained subtrochentric communited fracture with inter tuochantive. It also mentions about fracture of post condyle and styloid. It also mentions about fracture of metacarpal. In the operative procedure bone grafting was done, condyle femur was fixed and BE POP right side was done. In Ex. PW1/4, it has been mentioned that patient sustained communited fracture of the right upper femoral shaft, fracture line extending into inter tuochantive region. Last medicine purchase slip placed on record is dated 31.07.2005.
16 In Oriental Insurance Co. Ltd. Vs. Meena Variyal and others,(2007ACJ 1284) Hon'ble Supreme Court has directed the Tribunals all over the country not to be swayed by sympathies and to decide cases on the basis of the evidence led. It has been mandated that best evidence should be sought.
In this case even if we go by a very liberal standard, last treatment slip can be treated for the purpose of award of loss 11 of earning and loss of earning can be awarded for a period of seven months taking a very liberal view. In view of the discussion of nature of injuries, I deem it expedient to award loss of earning for a period of seven months. 17 Next question which immediately arises is the determination of the rate at which loss of earning is to be paid. Petitioner in his petition has claimed the income as Rs. 4,000/- per month. During cross-examination he admitted that there was no documentary proof concerning income. This witness has proved his 12th pass certificate as Ex. PW1/1. In view of the same Ld. Counsel for the respondent could not dispute that petitioner can be treated as a minimum wager. Minimum wages of a matriculate on the date of accident i.e. 20.01.2005 were Rs. 3,492.90 ps. (say Rs. 3,500/-). Thus loss of earning comes to 3,500 x 7 = 24,500/-.
Special diet, conveyance and attendant charges 18 Petitioner in his affidavit Ex. PW1/X has not 12 claimed any amount under these heads and request under these heads made during the course of arguments could have been dismissed in view of the same. However, 166 of the Act mandates the Tribunal to award 'just' compensation. It is common knowledge that when one meets with an accident, he has to spend some amount under the heads of special diet, conveyance and attendant charges. In view of non-leading of evidence by the petitioner this Tribunal has to enter into the arena of estimation. Keeping in view the nature of injuries, period of treatment, nature of treatment and other facts and circumstances of the case, I deem it expedient to award a consolidated sum of Rs. 15,000/- under the heads of special diet, conveyance and attendant charges. While awarding the above amount I have taken into consideration the fact that petitioner has also got his treatment done from Rajasthan as he hails from Rajasthan. I have also kept in consideration that petitioner has sustained disabiltity of 41% of the whole body as so testified by PW-2 and other facts and circumstances of the case.
Pain and sufferings 13 19 I have already given the details about the nature of injuries and the disability suffered, I am not repeating the same for the sake of brevity and deem it sufficient to observe that petitioner sustained subtrochantric communited fracture of right femur (Subtrochantric means around the area of the hip), part condyle medial and lateral left femur (around the knee), fracture of base of third metacarpal and ulna styloid process (right hand). Petitioner was operated as well as plastered. Keeping in view all the facts and circumstances of the case, I deem it expedient to award a sum of Rs. 50,000/- under the head of loss of earnings.
Loss of amenities of Life 20 Discussion about nature of injuries has already been made in detail, in the above mentioned heads. There cannot be any denial of fact that petitioner has suffered loss of amenities of life. Petitioner shall not be in a position to walk properly. He will not be in a position to sit, run, squat walk properly. Keeping in view all the facts and circumstances of the case I deem it expedient to award a sum of Rs. 30,000/- 14 under the head of loss and amenities of life.
Disability 21 PW-2 during cross-examination has given the disability of the petitioner as 41% with respect to whole body. In the disability certificate disability with respect to knee movement is 70%, left side free movement is 30 to 70%, lower limb length discrepancy i.e. upper and shortening of left lower limb is 2 inches. Loss of hip movement is given as 15% and ultimately 41% has been stated to be over all disability with respect to whole body. Ld. Counsel for the respondents during the course of arguments could not brought to my notice anything by virtue of which version of PW-2 could be doubted and accordingly I consider the disability as 41%. 22 Next question which arises is as to what should be considered as functional disability. Petitioner in his petition has stated that he was working with Sh. Parkash Baigani at a salary of Rs. 4,000/- per month. He has not given about the nature of his work in the entire petition and in the 15 circumstances the functional disability is taken as 41% as having been so opined by the treating doctor. 23 For calculating of disability the minimum wages shall be the basis in view of my finding under the heading of loss of earning with the rider that provision for future prospects/ neutralization on account of dwindling value of rupee has to be made. By applying the formula laid down in General Manager, Kerala State Road Transport Corpn. V/s Susamma Thomas, 1994 ACJ 1(SC). Sarla Dixit V/s Balwant Yadav, 1996 ACJ 581(SC), assumed income of the petitioner is arrived as follows : 3,500 + 7,000 divided by 2 = 5,250/-. This is the assumed income. Thus annual income of the petitioner is 5,250 x 12 = 63,000/-. The disability is 41%, 41% of this amount comes to 25,830/-. Thus annual loss of earning on account of disability is Rs. 25,830/-(say Rs.25,900/- ) 23A Next question which has to be answered is the multiplier. Law with respect to multiplier has been explained by 16 the Hon'ble Supreme Court in its recent judgments. A brief analysis of the same is given in the following para :
In Tamilnadu State Corporation Ltd. Vs. S. Rajpriya and others reported in AIR 2005 SC 2965, multiplier of 12 was applied in case of deceased being 38 years of age. Multiplier as per schedule is 16. In Municipal Corporation of Greater Bombay Vs. Laxman Ayyar, the multiplier of 10 was applied by Hon'ble Supreme Court when the age of the father and mother was 47 and 43 years respectively. Multiplier as per schedule is 15. In Sarla Dixit Vs. Balwant Yadav, deceased was of 27 years of age and multiplier of 16 was applied. Multiplier as per schedule is 18. In New India Assurance Company Ltd. Vs. Kalpana reported in 2007 ACJ 825 (SC), multiplier of 13 was applied in case of deceased being 33 years of age. Multiplier as per schedule is 17. In Tamilnadu State Transport Corporation Ltd. Vs. K.L. Bindu and others reported in IV (2005) ACC 350 (SC), multiplier of 13 was applied in case of deceased being 34 years of age. Multiplier as per schedule is 17. In U.P. State Roadways Transport 17 Corporation Vs. Krishna Bala and others reported in III (2006) ACC 361, multiplier of 13 was applied in the case of deceased being 36 years of age. Multiplier lies as per schedule is 16.
Thus it can be deduced that multiplier should not be as per schedule and it should be taken in the range of lowerness, the same being 2 to 5.
24 Petitioner has given his age as 32 years in the petition. In the election I card issued on 01.01.1995 his age is 22 years, meaning thereby he was 32 years as per election I card. Version of petitioner concerning his age being 32 years has not been disputed and accordingly I take his age as 32 years. Although multiplier applicable as per schedule in this case is that of 17, but in view of the judgments detailed in the above para I deem it expedient to apply the multiplier of 15. Thus total disability comes to Rs. 25900 x 15 = 3,88,500/-
The amounts of compensation assessed under the different heads are being chunked together herein below : -
1 Treatment expenses : Rs. 50,100/-
2 Loss of earning : Rs. 24,500/-18
3 Special diet, conveyance and : Rs. 15,000/-
attendant charges.
4 Pain and suffering : Rs. 50,000/-
5 Loss of Amenities : Rs. 30,000/-
5 Disability : Rs. 3,88,500/-
__________________
Total : Rs. 5,58,100/-
__________________
Relief
I, therefore, pass an award for a sum of Rs.
5,58,100/- in favour of petitioner and against the respondents. Petitioner shall also be entitled to interest @ 7% p.a. w.e.f. date of filing of petition till realization in view of Section 171 of the Act. Petitioner is directed to keep a sum of Rs. 4,00,000/- out of the above mentioned amount in a fixed deposit for a period of ten years with some Nationalized Bank without any facility of premature withdrawal, encashment loan/advance, mortgage etc. Petitioner, however, shall be entitled to withdraw interest.
Liability to pay Liability to pay is fastened on respondent no. 3, National Insurance Company Ltd., as offending vehicle was 19 insured with respondent no. 3 for third party risks and no breach of terms and conditions has been proved by respondent no. 3 by virtue of which it could have avoided its liability. The payment shall be made within a period of 30 days from today by respondent no.3, failing which this Tribunal shall be constrained to take harsh steps.
Copy of this order be given to parties for necessary compliance.
File be consigned to record room.
Announced in the open court.
Dated : 16th February, 2008.
(DILBAG SINGH) JUDGE, MACT: DELHI