Delhi District Court
Sanjeev Sherawat vs Sadanand on 25 June, 2011
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IN THE COURT OF SHRI RAJ KUMAR CHAUHAN ASJ/SPECIAL
JUDGE( NDPS)TIS HAZARI COURTS:(WEST) DELHI
Suit no. 80/10/07
Unique Case ID no : 02404C0463862007
Date of filing of the Petition : 16.08.2007
Date reserve for judgment : 19.04.2011
Date of Final Award : 25.06.2011
Sanjeev Sherawat
S/o Shri Balwan Singh
R/o RZ26 B , Sai Baba , Najafgarh
New Delhi ...............Petitioner
V E R S U S
1 Sadanand
S/o Shri Girdhar Mandal
R/o C - 121, Khazan Basti
Mayapuri, Delhi
2 Pankaj Kumar
S/o Shri Avadesh Mandal
R/o A64 , Sainik Enclave
Vikas Marg, New Delhi
3 National Insurance Company
Div. XV Himalaya House, Ist floor, 23 Kasturba
Gandhi Marg, New Delhi ................Respondents
Suit no. : 80/10/07 Page 1/ 17
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JUDGMENT / AWARD
1. In this petition under section 166 & 140 of the Motor Vehicles Act, 1988 hereinafter referred as the 'Act' , the petitioner has claimed compensation of Rs. 10 Lacs for injuries sustained by him in the accident caused by respondent no.1 . It is alleged that on 26.6.2007 at about 1.00 p.m , the petitioner was going on his motor cycle bearing no. HPK 7200 from Delhi University to Shivaji college for checking the list and when the petitioner reached near Traffic booth in front of ESI hospital , Ring road, suddenly the driver of offending vehicle TATA 407 crane bearing registration no. DL 1L E 5535 came from a very high speed in rash and negligent manner and hit the motorcycle of the petitioner . Due to this forceful impact , the petitioner received grievous injuries as the foot and leg of the petitioner got separated from the ankle . The petitioner was removed to DDU hospital and thereafter shifted to Jaipur Golden Hospital and his treatment is still continuing . Due to the said accident , he has also suffered permanent disability . At the time of accident, he remained absent from his study for a period of 15 months and lost his earning as he was working as tutor .
2. All the respondents were served and respondents no. 1 and 2 were proceeded exparte on 03.9.2008.
3. Respondent no. 3 /Insurance company in its written statement has denied their liability to pay compensation stating that no accident took place on the alleged date time and place . It is however admitted that offending vehicle bearing Suit no. : 80/10/07 Page 2/ 17 3 no. DL 1LE 5535 was insured with it vide policy no. 351500/31/06/6300002853 w.e.f 28.9.2006 to 27.9.2007.
4. On 03.9.2008 , from the pleading of the parties Ld. Predecessor has framed the following issues :
i) Whether the petitioner had sustained injuries on 26.6.2007 at about 1.00 p.m at Ring Road in front of ESI Hospital, near Traffic Booth due to rash and negligent driving of respondent no. 1 Shri Sada Nand while driving Crane bearing registration no. DL 1LE 5535 ?
ii) Whether the petitioner is entitled to any compensation ? If so , to what amount and from whom ?
iii) Relief.
5. Petitioner Sanjeev Sherawat has been examined as PW1, Dr. D.S Gautam , Prosthetist & Orthotist has been examined as PW2 , Shri D.K Chhabra , Record clerk from Jaipur Golden Hospital has been examined as PW3, Dr. S.K Sharma , Chief Medical officer as PW4 and Dr. Palash Gupta, Consultant Orthopaedics as PW5 and Sunny LDC from State Transport Authority has been examined as R3W1.
ISSUE NO.1 Whether the petitioner had sustained injuries on 26.6.2007 at about 1.00 p.m at Ring Road in front of ESI Hospital, near Traffic Booth due to rash and negligent driving of respondent no. 1 Shri Sada Nand while driving Crane bearing registration no. DL 1LE 5535 ?
Suit no. : 80/10/07 Page 3/ 17 4
6. Petitioner Sanjeev Sherawat as PW1 has reiterated the averments of the claim petition. In his testimony vide affidavit Ex. PW1/A , he has deposed that on 26.6.2007 at about 1.00 p.m he was going on his motor cycle bearing no. HPK 7200 and when reached near Traffic booth in front of ESI hospital, Ring road suddenly a crane bearing no. DL 1LE 5535 driven by respondent no. 1 in rash and negligent manner hit the motor cycle of the deceased. Due to this forceful impact, petitioner received grievous injuries in the foot and his leg was separated from his ankle . Petitioner was removed to the DDU hospital and thereafter taken to Jaipur Golden Hospital in a precarious condition and remained admitted for treatment. Petitioner was operated upon and ankle joint was amputated and has suffered permanent disability.
7. The FIR was registered on the statement of petitioner. It is clearly stated in his statement that accident was caused by offending vehicle crane bearing no. DL 1LE 5535 driven by respondent no. 1 in rash and negligent manner and as a result he sustained grievous injuries and was rushed to hospital. Regarding the rash and negligent driving of respondent no. 1, driver , the testimony of PW1 Sanjeev Sherawat in that regard is quite natural and coherent. Thus, the testimony of PW1 and documentary evidence on record has sufficiently established that the accident was caused by respondent no.1 while driving the offending vehicle bearing no . DL 1LE 5535 in a rash and negligent manner and as a result the claimant / petitioner had sustained grievous injuries. Therefore, issue no. 1 is decided in favour of the petitioner and against the respondents.
Suit no. : 80/10/07 Page 4/ 17 5 ISSUE NO.2 Whether petitioner is entitled to any compensation ? If so for what amount and from whom ?
8. The petitioner has claimed Rs. 10 Lacs as compensation for the injuries suffered by him. Let me now assess the compensation to which petitioner is entitled to under different heads.
Compensation for the expenses incurred on medical treatment
9. The petitioner in her affidavit Ex PW1/A has stated that he had spent a sum of Rs. 2,00,000/ on his treatment and Rs. 1, 24, 000/ was incurred for artificial leg. The petitioner has also proved treatment papers and all medical bills Ex. PW1/1 to Ex. PW1/33 of Rs. 47, 818/ . The total of medical bills and amount spent on artificial leg comes to Rs. 1,71,818/ .
10. Ld. counsel for the respondent has argued that receipt Ex. PW1/18 dated 29.6.2007 is not having corresponding bill and amount of the receipt is deemed to have been adjusted because medical bill is not on record and petitioner was not entitled to the said amount of Rs. 10,000/.
11. Ld. counsel for the petitioner on the other hand argued that all medical bills are placed on record and there is no adjustment of the said amount Rs. 10, 000/ which was deposited at the time of admission of petitioner and the petitioner is thus entitled to the said expenses incurred by the petitioner. Suit no. : 80/10/07 Page 5/ 17 6
12. On perusal of the medical bills placed on record there is no adjustment of the said amount of Rs. 10, 000/ as shown in receipt Ex. PW1/18 and the amount have been proved to have been deposited with hospital and the petitioner has thus incurred expenses on his treatment and accordingly entitled to the reimbursement of the said amount also . The petitioner is therefore, held entitled to a sum of Rs. 1, 71, 818/ under this head.
Compensation for the expenses incurred on conveyance expenses, special diet and attendant charges.
13. The petitioner in his affidavit Ex. PW1/A in para no. 10 has deposed that he had spent on conveyance charges , special diet and attendant charges. The petitioner has placed on record Ex. PW1/AA to Ex. PW1/AJ amounting to Rs. 7300/ regarding conveyance charges. Though, there is no cogent evidence on record for the money spent by petitioner on ,special diet and attendant charges, however in view of the nature of injuries received by the petitioner, period of hospitalization and treatment papers of petitioner on record , I am of the opinion that petitioner must have spent some sum under this head. I therefore , assess the petitioner to be entitled for a sum of Rs. 7300/ for conveyance charges , Rs. 20,000/ on special diet and Rs. 10,000/ on attendant charges respectively. Therefore petitioner is entitled to Rs. 37, 300/ as compensation under this head. Compensation on account of loss of studies.
14. The petitioner Sanjeev in his affidavit Ex. PW1/A has stated that at the time of accident he was a student and also joined computer accountants course vide Suit no. : 80/10/07 Page 6/ 17 7 Ex. PW1/K at the time of accident and has stated that during the period of accident / treatment he remained absent from his study for a period of 15 months. In his cross examination by Ld. counsel Shri J. N Goel for respondent no. 3, he has admitted that he is a student of graduation and had not filed any document of his age proof and had shown certificate issued by CBSE of passing All India Secondary School Examination in 2003 in which his date of birth is mentioned . But seeing the discharge summary Ex. PW1/G and treatment papers on record , it is noticed that he has suffered traumatic amputation of left foot and was hospitalized between 26.6.2007 to 29.06.2007 . He has also taken treatment subsequent discharge from the hospital . Seeing the nature of injuries , it is quite natural that he must have remained absent from his studies for considerable period and for his loss of studies because of injuries sustained in the accident , he needs to be compensated reasonably. The ends of justice shall met if petitioner is held entitled for Rs. 20,000/ compensation under this head. Compensation for loss of income
15. The petitioner in his affidavit Ex. PW1/A has stated that he was a student and had no documentary proof for doing the part time job of tutor and was earning about Rs. 3000/ per month . He has not placed on record any proof of doing job and earning. In absence of any cogent evidence in that regard, petitioner has claimed that because of injuries sustained in the accident he has suffered loss of income as he was working as tutor and was earning Rs. 3000/ per month. Considering the nature of injuries sustained by him i.e resulting into permanent disability of 60% in relation to his left lower limb , there is every possibility that Suit no. : 80/10/07 Page 7/ 17 8 he would not have been able to do his job / duty to earn livelihood for a period of at least 5 months . There is no documentary evidence in support of his claim to be working as tutor and earning Rs. 3000/ per month . Hence, he is entitled to loss of income equivalent to the Minimum wages for a period of 5 months for a matriculate labour . As per Delhi Government notification, the minimum wages at the time of accident was Rs. 3918/ (which is rounded off to Rs. 4000/) for a matriculate workman . Hence, his total loss of income would be Rs. 20,000/ (4000 X 5) as compensation for loss of income.
Compensation for Pain and Suffering .
16. One cannot over look the fact that injury elicited above sustained by the petitioner resulting into 60% permanent disability at this young age of about 20 years, would cause life long pain and suffering to the petitioner. It is settled law that no amount of compensation can be adequate for the physical discomfort, mental pain and suffering. The Hon'ble Supreme Court in The Divisional Controller, KSRTC Vs. Mahadeva Shetty & Anr. reported in AIR 2003 SC 4172, has made the following observations regarding compensation for pain and suffering: "It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Merries in West Vs. Shepard (1964 AC 326). Justice requires that it should be equal in value, although not alike in kind Object of providing compensation is to place the claimant as far as possible in the same position financially as he was before accident."
17. It is thus, difficult to exactly compensate the injured in terms of money for pain Suit no. : 80/10/07 Page 8/ 17 9 and suffering. In the present case, keeping in mind the facts and circumstances of the case and fact that petitioner is suffering from 60% permanent disability, I am of the opinion that a sum of Rs. 50,000/ as compensation for pain and suffering will be sufficient to meet the ends of justice.
COMPENSATION FOR LOSS OF AMENITIES OF LIFE
18. Petitioner had suffered permanent disability in relation to left lower limb and below knee amputation left lower limb through lower 1/3 leg. Keeping in mind the permanent disability suffered, the restrictions put on enjoyment of his life due to the suffered permanent disability, I am of the opinion that a sum of Rs. 40,000/ as compensation for loss of amenities of life will be sufficient to meet the ends of justice.
Compensation for loss of earning capacity on account of permanent disability
19. In the present case , keeping in the mind the facts and circumstances of the case and the fact that the petitioner has suffered 60% permanent disability in relation to left lower limb because of injuries sustained in the accident and the disability has been found to be permanent as per Ex. PW1/E.
20. Let me now asses the compensation to which the petitioner is entitled on the ground of permanent disability of 60% in relation to left lower limb and other physical injuries.
Suit no. : 80/10/07 Page 9/ 17 10
21. The petitioner has proved her disability certificate Ex. PW1/E showing 60 % permanent disability. It is stated that disability certificate Ex. PW1/E has been proved by PW4 Dr. S.K Sharma who was member of the disability board and has testified that the said disability is permanent . He has further deposed that there are no norms to assess the functional disability on account of permanent disability and it differs with work profile of the injured . As per disability certificate Ex. PW1/E , the petitioner has suffered permanent disability of 60% in relation to left lower limb.
22. In terms of the law laid in the case of Oriental Insurance Company Ltd. Vs Rajinder Kumar & ors. reported in (III 2007) ACC 19, Hon'ble Mr. Justice Pradeep Nandrajog had held that when the injured a qualified stenographer suffered permanent disability resulting in 44 % functional disability on left arm crushed under bus, there was no infirmity found in the award recompensating loss of future earning due to disability suffered by injured as a result of accident, even though the petitioner had not suffered any cut in salary and was employed with the same employer. Also was held that if as a result of the accident, human anatomy is shattered or a limb is damaged, as far as possible, loss occasioned in terms of money to the victim of the unfortunate road mishap has to be recompensed. Damages have to be full and adequate. In case of personal injuries, the assessment of damages have to take into consideration the restriction of future earning capacity. The loss of chance of better employment or prospects have also to be examined and assessed. The impairment of the body as a whole has to be considered and its resultant impact on the earning or earning capacity as also Suit no. : 80/10/07 Page 10/ 17 11 future prospects in increasing the earning capacity have to be considered.
23. In the case of S.K. Kattimani Vs. Karnataka State Road Transport Corporation & Others reported as 2007 ACJ 2279 wherein the Hon'ble Apex Court has held in para No.3 and 4 as under:
"After hearing learned counsel for the parties, we find that the High Court committed gross error in ignoring the fact that the claimant was a coolie doing manual labour for earning his livelihood. As a result of the accident his one arm was amputated which was almost total disability for earning. In such a situation, to reduce the quantum of compensation by treating disability at 50 percent was uncalled for. The tribunal has in fact assessed the disability at 80 percent."
Consequently, we allow his appeal, set aside the order of the High Court and restore the award made by Motor Accidents Claims Tribunal."
24. In the present case , the petitioner has suffered 60% permanent disability in relation to left lower limb and below knee amputation left lower limb through lower 1/3 of leg and other bodily injuries sustained because of the accident. There is no doubt that due to permanent disability the prospect of earning of livelihood by petitioner has been adversely effected resulting into 60% functional disability of the petitioner in his earning capacity. The case of S.K. Kattimani referred (Supra) perfectly covers the facts of the present case and the ratio is squarely applicable in the case of the petitioner also.
25. As per law laid down in Patti Ram Vs Kushal Pal Singh reported as 2010 ACJ 1481 by Hon'ble High court of Delhi , in a case of permanent disability in order to assess the loss of earning capacity on the basis of minimum wages , the increase in minimum wages due to inflation and rise in price index has to be taken into consideration. It was also held that court should take judicial notice of Suit no. : 80/10/07 Page 11/ 17 12 increase in minimum wages to meet the increase in price index and inflation rate . It was also held that in various judgments the Hon'ble High court of Delhi has taken the view that the minimum wages get doubled over the period of 10 years and the increase in minimum wages is not akin to future prospects. Thus, Tribunal has to consider future increase in minimum wages while awarding compensation for loss of earning capacity. Benefit of future increase in the income of the injured is to be given. The mean average income of the injured is to be calculated by adding double amount of minimum wages to the prevailing wages and dividing the total sum by 2(Two) . On the same analogy to be applicable in this case, the loss of monthly income of the petitioner due to permanent disability is concluded as under
: (Rs.4000 + Rs.8000) divided by 2 Rs. 12000 / ÷ 2 = Rs. 6000/
26. In terms of the law laid in the case of Rajinder Kumar (SUPRA) the petitioner is according entitled for loss of earning capacity on account of permanent disability suffered as per multiplier basis. The petitioner has failed to lead any cogent evidence to show that he was earning Rs.3000/ pm from his work/job and therefore he is to be granted loss of earning on the basis of minimum wages prevailing at the time of accident for a matriculate workman. According to minimum wages, as per Delhi Government Notification, the monthly income of the petitioner is to be taken as Rs. 4000/ as herein before elicited.
27. In terms of law laid in the case of Smt. Sarla Verma (SUPRA) it was held that in a claim petition u/s 166 of the Motor Vehicles Act, 1988, the multiplier of 18 is Suit no. : 80/10/07 Page 12/ 17 13 to be applied for assessing the compensation for the victim of the road accident ( for the age group of 21 to 25 years ) The age of the petitioner has been shown in certificate issued by CBSE X class i.e 12.7.1987. Thus, at the time of accident the petitioner was of age of 20 years. Since the petitioner was of age 20 years as per certificate issued by CBSE , here also the multiplier of 18 is to be adopted in this case for assessing the compensation for petitioner.
28. In view of the aforesaid , the petitioner has suffered loss of earning capacity to the tune of Rs. 7, 77,600/ ( 60% of 6000 X 12 X 18 ) as compensation for loss of earning capacity.
COMPENSATION FOR PHYSICAL DISFIGUREMENT DUE TO PERMANENT DISABILITY
29. The petitioner has suffered permanent disability along with other bodily injury resulting into 60% physical disability vide Ex.PW1/E, resultant from the present accident in question. The physical disfigurement cannot be recompensed in terms of money , till one is alive , one cannot face even oneself to the hard realities . The Tribunal is enjoined to award just compensation for non pecuniary damages under this head as well. I am of the considered opinion that Rs. 50, 000/ as compensation under this head for the petitioner would be just and petitioner is entitled for the same.
30. In view of the above discussions, the total compensation to which the petitioner Sanjeev Sherawat is entitled comes as under : Suit no. : 80/10/07 Page 13/ 17 14 1 Compensation for the expenses incurred on medical treatment Rs. 1, 71, 818/ 2 Compensation for special diet , conveyance and attendant charges Rs. 37,300/ 3 Compensation on account of loss of studies Rs. 20,000/ 4 Compensation for loss of income Rs. 20,000/ 5 Compensation for pain and suffering Rs. 50,000/ 6 Compensation for loss of amenities of life Rs. 40,000/ 7 Compensation for loss of earning capacity Rs. 7, 77,600/ 8 Compensation for physical disfigurement due to permanent disability Rs 50,000 / Total Rs. 11,66,718/
31. In view of the above discussion, issue no. 2 is decided in favour of the petitioner and against the respondents. The petitioner is thus entitled to a sum of Rs. 11,66,718/ as compensation along with interest @ 7.5% per annum from the date of filing of the petition till its realization from the respondents , payable by the Insurer i.e respondent no. 3 National Insurance Company. RELIEF
32. In view of the aforesaid discussions, it is hereby held that petitioner is thus entitled to Rs. 11,66,718/ as compensation alongwith interest @7.5 % per annum from the date of filing of the petition till its realization from the respondents payable by respondent no. 3 National Insurance Company. Suit no. : 80/10/07 Page 14/ 17 15
33. Since the amount awarded should not be frittered away by of India in a case titled 'G.M. Kerala State Road Transport Corporation Vs. Susamma Thomas' reported in 1994(2) SCC 176, has laid guidelines pronouncing that in a case of compensation, it is appropriate that Tribunals do keep in mind the principles enunciated by this court in 'Union Carbide Corporation Vs. Union of India', 1991(4) SCC 584, in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. Guidelines inter alia included of investment of share of the claimants in FDRs in nationalized banks with conditions that bank will not permit any loan or advance on the fixed deposits and interest on the amount invested is paid monthly/periodically directly to the claimant and such investment may be made in more than one fixed deposit. In case of any exigency, claimants are at liberty to apply to Tribunal for withdrawal of such investment.
34. In terms thereof, out of the award sum, 70% sum be invested in 14 FDR's of equal (almost) in name of petitioner in State Bank of India. One FDR be invested for a period of one year; One FDR be invested for a period of two years; One FDR be invested for a period of three years; One FDR be invested for a period of four years; One FDR be invested for a period of five years; One FDR be invested for a period of six years; One FDR be invested for a period of seven years; One FDR be invested for a period of eight years; One FDR be invested for a period of nine years; One FDR be invested for a period of ten years; One FDR be invested for a period of eleven years; One FDR be invested for a period of twelve years; One Suit no. : 80/10/07 Page 15/ 17 16 FDR be invested for a period of thirteen years; One FDR be invested for a period of fourteen years The FDRs shall have no facility of loan or advance. Petitioner can withdraw the interest monthly. In case of exigency, petitioner can move application for premature withdrawal before this Tribunal, as per law.
35. Aforesaid fixed deposits are to be made by State Bank of India, Tis Hazari in the following manner: (1) The State Bank of India, Tis Hazari, shall open separate Savings Account in the name of claimant and the entire interest on the aforesaid fixed deposits be credited in the said accounts. The fixed deposits shall be automatically renewed till the period prescribed by the court.
(2) The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Account. Claimant after due verification and the Bank shall issue photo identity card/pass book with attested photograph to claimant to facilitate his identity.
(3) No cheque book be issued to the claimant without the permission of this court. (4) Half yearly statement of account be filed by the Bank in this court. (5) The original FDRs shall be retained by the Bank in the Safe custody. However, the original pass book shall be given to the claimant alongwith the photocopy of the FDRs.
(5) The original Fixed Deposit Receipts shall be handed over to the claimant at the end of the fixed deposit period.
(6) No loan, advance or withdrawal shall be allowed on the said FDRs without the permission of this court.
Suit no. : 80/10/07 Page 16/ 17 17 (7) On the request of the claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India according to the convenience of the claimant
36. In terms of directions contained in case of UOI Vs Nanisiri, in MAC Appeal no. 682/2005 , order dated 13.1.2010 of Hon'ble Mr. Justice J.R Midha, Respondent no. 3 National Insurance Company is directed to directly deposit the award sum with State Bank of India (SBI) Tis Hazari within 30 days through its nodal officer , Mr. H.S Rawat, Relationship Manager , Tis Hazari Branch (MB:
09717044322) and the Manager concerned of SBI, Tis Hazari Court to release the balance amount by transferring the same to the Saving Bank Account of the petitioner /claimant. Insurance company to also file proof of deposit of award sum, also within said period , Manager SBI, Tis Hazari to also furnish compliance report within said period , Manager SBI, Tis Hazari to also furnish compliance report within 15 days of deposit of award sum. Claimant to do the necessary formalities in respect of the bank account(s). Nazir to keep the copy of Award in a miscellaneous file for awaiting compliance report from all concerned, which is to be put up on 23.7.2011.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 25th DAY OF JUNE, 2011 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE(NDPS) Suit no. : 80/10/07 Page 17/ 17 18 (WEST)DELHI Suit no. : 80/10/07 Page 18/ 17 19 Suit no. : 80/10/07 Page 19/ 17