Delhi District Court
Sh. Pramod Mishra vs ) Mr. Rakesh Kumar S/O Sh. Inder Dass on 2 February, 2011
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In the court of Sh. Ashwani Sarpal, Addl. District & Sessions
Judge cum Judge, Motor Accident Claim Tribunal
Rohini Courts, Delhi.
(MACT Case no. 240/10/08)
Sh. Pramod Mishra
S/o Sh. Ram Chandra Mishra
R/o A-89/1 and D-9, Raja Vihar,
Samaypur Badli, New Delhi -----------Petitioner/Claimant
Versus
1) Mr. Rakesh Kumar S/o Sh. Inder Dass
R/o Village Channi, P.S. Sunder Vani
Distt. Rajouri, J & K.
2) Mr. Pradeep Saru S/o Sh. Bachan Saru
R/o 69, Ankar Garden, Distt. Jalandhar, Punjab
3) The New India Assurance Co. Ltd.
RO-II, Jeevan Raksh Building, Asaf Ali Road,
New Delhi
--------------Respondents
Date of institution-02-05-2008
Date of decision----02-02-2011
(Application u/s 140 and 166 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:-
Petitioner Pramod Mishra aged about 22 years through the present petition claimed compensation of Rs. 15 lakhs with interest on the ground that on 23.11.2007 at about 8.20 p.m., he was going on his bicycle at -2- a slow speed and on his left side of the road. When he reached at Bankoli, G.T. Karnal Road, near bus stand, suddenly a Truck bearing no. HR-38J-3844 being driven by respondent no.1 at a very high speed in rash and negligent manner came from behind i.e. Alipur side and hit his bicycle. Due to this accident, petitioner suffered multiple grievous injuries. A criminal case under section 279/337 IPC was registered against respondent no.1 vide FIR No.382/07 in police station Alipur. The petitioner alleged that he was self employed and was earning Rs.6000/- per month. Petitioner claimed compensation from the respondents being driver, owner and insurance company of the offending truck under various pecuniary and non pecuniary heads.
Respondents no.1 and 2 in their joint written statement admitted happening of an accident with their truck but blamed the petitioner for driving the bicycle in careless manner. Respondent no.3 insurance company though admitted existence of insurance policy in respect of offending vehicle but tried to avoid its liability on various technical grounds.
During pendency of the petition, petitioner was paid interim compensation of Rs. 25,000/- keeping in view his permanent disability certificate. On the basis of pleadings of the parties, following issues were framed on 10.09.2008 by my ld. Predecessor:
1) Whether on 23.11.2007 at about 8.20 p.m. at Bankoli, GTK Road, truck no. HR-38J-3844 which was being driven rashly and negligently hit petitioner and caused injuries to him? OPP
2) Whether petitioner himself was guilty of negligence if so, its effect? OPR-1 & 2.
3) Whether petitioner is entitled to compensation as prayed for, if so from which of the respondent? OPP
4) Relief.
In order to prove his case, petitioner examined himself as PW-1 and Dr. Neeraj Chaudhary from BJRM Hospital to prove disability certificate as PW-2. Respondents did not choose to lead any evidence. I have heard counsel for the petitioner and gone through the record. Counsel for respondents neither appeared to argue on the matter nor filed any written submissions despite giving time. My decision on the above mentioned issues is as under:
-3-Issues no. 1 & 2:-
Petitioner PW-1 in his evidence disclosed how and in which manner accident took place. He specifically alleged that offending truck came from behind being driven by respondent no.1 in rash and negligent manner and hit his bicycle, due to which he suffered injuries. He also placed on record certified copies of criminal case record Ex. PW1/7 to show that police after investigation found that accident took place due to fault and negligence of the respondent no.1. No effective cross examination of the petitioner had taken place and I find nothing in his statement to discard his version. Respondent no.1 also did not step into the witness box to prove his defence that accident was caused due to negligence of the petitioner himself as alleged in the written statement and accordingly its adverse inference has to be taken against the respondents.
It is not the case of the respondents that they had lodged any complaint to any higher authority against alleged false implication of respondent no.1 in criminal case. It is also not their case that they had any previous enmity with petitioner or IO of the case which facilitated them to involve respondent no.1 in the alleged false case. In absence of any cross examination of petitioner PW-1 regarding the manner of accident, I find no ground to disbelieve his statement and accordingly it is held that accident had taken place due to rash and negligent driving of offending truck by respondent no.1 by which petitioner had suffered grievous injuries and there was no negligence on the part of the injured. These two issues are thus decided in favour of petitioner and against the respondents.
Issue no. 3:-
Petitioner has examined PW-2 who proved disability certificate Ex.PW2/A, which shows that he had suffered 56% permanent disability in relation to stiffness of left knee and ankle. However, this witness has not given any estimate about the extent of disability in relation to the whole body. PW-1 proved through medical records Ex. PW1/1 to 5 the exact natures of the injuries suffered by him which were grievous in nature. As per medical record, petitioner has remain admitted in hospitals thrice. He also admitted in Action Medical Institute, Paschim Vihar, New Delhi for six days from 13.03.2008 to 18.08.2008 and for five days from 14.07.2008 to 18.07.2008 besides -4- continued to take treatment as OPD patient. Some external fixator were affixed on his leg which were removed lateron.
Petitioner was self employed at the time of accident. He admitted in his cross examination that he was selling fruit juice on rehri. He has not placed on record any document in this regard as well as of his earning. In such circumstances, the petitioner can presumed to be earning according to the schedule of Minimum Wages Act.
The accident took place 23.11.2007. Petitioner has not filed any document of his qualification and thus deem to be earning a sum of Rs.3,516/- per month under the category of unskilled worker because he was selling juice on the rehri, which does not require any type of skill. Hence the monthly income of the petitioner at Rs.3,516/- is to be taken into consideration for ascertaining the loss of earning capacity due to permanent disability.
Petitioner might have suffered functional disability to an extent of 56% in relation to stiffness of left knee and ankle due to accident but his earning capacity cannot be treated as reduced to such extent in comparison to whole body. This court is concerned with the effect of the permanent disability on the earning capacity of the injured and has to find out the effect of such stiffness of the limb on the functioning of the entire body. Accordingly after relying upon the latest decision of Supreme Court given in case Raj Kumar vs. Ajay Kumar, Civil Appeal no. 8981/2010 decided on 18-10-2010, I deem it proper to treat this disability to an extent of 25% only for determination of compensation in respect of loss of future earning capacity. Supreme Court in Arvind Kumar Mishra vs. New India Assurance Co. 2010 (4) TAC 385 also in case of 70% permanent disability taken loss of earning capacity to an extent of 30% only.
Counsel for petitioner cited case law B.T. Krishanappa vs. D.M. United Insurance Co. Ltd. AIR 2010 SC 2630 and argued to treat disability of petitioner as 100%. However, this judgment can be distinguished from the present facts and circumstances because in the cited case the injured was working as meson and it was found that he could not sit cross leg, squat, could not lift any weight or climb the stairs without support and his leg was shortened by 3.5 cms. In this matter the Supreme Court treated 48% disability of a lower limb as equivalent disability in respect of whole body. However, in the present case no such evidence has brought on record which -5- point out that petitioner now cannot work, move or squat and has become totally crippled. PW-2 the concerned doctor has also specifically stated that 56% disability is in relation to a particular limb and not in respect of the whole body. Accordingly, I am of the view that the extent of disability qua the whole body is to be treated as 25% only.
Petitioner in the petition described his age as 22 years at the time of accident, which took place on 23.11.2007 but his medical record says that he was 33 years of age at that time. The Voter I-card Ex.PW1/4 shows the age of the petitioner at 33 years as on 01.01.2009. It means that petitioner was 32 years of age approximately at the time of accident. Hence in view of the decision of Supreme Court given in Sarla Verma vs. DTC 2009 ACJ 1298 multiplier of 16 has to be applied to count loss of earning capacity.
Medical record point out that petitioner got treatment from AIIMS, Action Medical Institute as well as from Babu Jagjivan Ram Hospital and remain admitted there for few days. He also took treatment as out door patient till February, 2009. Petitioner has placed on record certain medicine bills Ex.PW1/5 which show that he had incurred expenses of Rs. 4699.21 upon medicines purchased from the market. No dispute regarding the correctness and genuineness of these bills is raised in the cross examination of petitioner so the amount of these medical bills at Rs.4700/- in lump sum is liable to be paid to him. The claim of petitioner that he spent Rs.50,000/- on medical treatment and medicines cannot be accepted being without any supportive evidence and bills. Otherwise also he took treatment from the govt. hospital also which is given at state expenses and free of costs.
The permanent disability is treated at par with the death in order to calculate the amount of compensation in accordance with the extent of disability qua whole body. Petitioner was selling juice and was a self employed person and thus as per various judgment of our own High Court, future prospects has to be given to him. Otherwise also minimum wages chart shows that it is increased from time to time almost after every six months. Judicial notice has to be taken that due to inflation and rise in price index, minimum wages get double over a period of 10 years. Thus while relying upon the decisions of Delhi High Court given in cases Savitri vs. Mohan Singh MAC. APP no. 491/07 decided on 20-1-2010 and Sajha vs. National Insurance -6- Co. 2010 ACJ 627, the final amount of income of petitioner has to be assessed at Rs. 5,274/- (Rs. 3,516 + 50%) per month.
As no deduction from income has to be taken towards personal expenses in case of injury as per decision of Delhi High Court in Bimla vs. Gopal MAC. APP no. 1028/2006 decided on 22-3-2010 so the total loss of future income or earning capacity comes to Rs. 2,53,152 as per the formula (Rs. 5,274 x 12 x 16 x 25%). Accordingly petitioner is granted loss of future income at Rs. 2,53,152/-.
Petitioner has not placed on record any certificate of doctor that he require any treatment in future. There is no advice of any hospital on file to show that his leg shall be amputated lateron. The medical treatment record does not point out that petitioner ever took treatment after February, 2009. Thus the claim raised by petitioner that his treatment is continuing and would require amputation of his leg is liable to be rejected.
Petitioner has alleged that he spent Rs.15,000/- on conveyance, Rs. 25,000/- upon special diet, Rs.15,000/- upon attendant charges and Rs. 10,000/- to Rs.15,000/- on physiotherapy. Petitioner has not disclosed the name of any attendant nor has mentioned for how much time he had engaged that attendant and at what rate. Hence claim of petitioner in respect of attendant charges is rejected. Similarly in absence of any receipt of payment, the claim raised against physiotherapy charges is rejected. Petitioner had visited hospitals several times but no proof of spending upon any conveyance is brought on record. In case of sickness and serious injury, a special diet in the form of healthy food, juices, milk, etc. is provided instead of or in addition to the normal food. Hence in absence of any documentary evidence but keeping in view his hospital visits, period of treatment and nature of injuries, I am of the view that maximum petitioner can be paid Rs. 15,000/- towards special diet and conveyance.
Petitioner had suffered multiple fractures. Photograph of his leg on record shows how badly it was injured and had become disfigured. Judicial notice can be taken of the fact that due to such type of injuries, stiffness of knee and ankle and disability as is suffered by the petitioner, he now cannot walk and run properly and smoothly as he could do so earlier. His body has also been disfigured to some extent. Difficulty and inconvenience arises to perform even daily personal routine acts due to such an extent of injuries. He -7- must have suffered great pain and sufferings and also had undergone some shock of accident. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the age, status and condition of the petitioner, extent of disability, hospital admission and visits etc. he is granted lump sum amount of Rs. 50,000/- towards pain and sufferings, inconvenience, mental shock, disfigurement and loss of amenities etc. Respondent no.3 insurance company has not led any evidence to point out that insured had committed any breach of the terms of insurance policy or driving license of the respondent no.1 was not proper. In such situation, it is held that entire compensation amount is payable by the insurance company respondent no. 3.
In view of the above discussions, this issue is decided in favour of petitioner by holding that he is entitled to get the following total compensation from the respondent no.3:
a) Loss of future earning capacity------------------Rs. 2,53,152/-
b) Medical expenses--------------------------------- -Rs. 4,700/-
c) Pain and sufferings etc.-------------------------- Rs. 50,000/-
d) Special diet & conveyance charges------------- Rs. 15,000/-
__________________ Total Rs. 3,22,852/-
Since petitioner is already paid interim compensation of Rs.25,000/- with interest during pendency of the petition, so this amount is liable to be deducted from the compensation amount assessed above. Hence net amount payable to the petitioner comes to Rs. 2,97,852/-. Petitioner shall be entitled to interest at the rate of 7.5% p.a. on this amount from the date of institution of the petition i.e. 02.05.2008 till realization.
Issue no. 4 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no.3 insurance company is directed to pay within 30 days a sum of Rs. 2,97,852/- to the petitioner along with interest at the rate of 7.5% p.a. from 02.05.2008 till this amount is fully paid.-8-
Petitioner has already placed on record pass book of his bank account which shows that he is having bank account no. 4989000100011524 in Punjab National Bank, Sector-18, Rohini (customer no. HJW001442).
It is further ordered that out of compensation amount sum of Rs. 2 lakhs be kept in the FDR in the name of petitioner for a period of five years in his bank i.e. Punjab National Bank, Sector-18, Rohini branch. This FDR shall not be encashed without permission of the court. No loan shall be granted to the petitioner on this FDR. Petitioner however shall be allowed to withdraw interest accruing on this FDR after every three months which shall be directly credited in his saving account. The amount of FDR shall be credited in the same amount after it is matured. Bank shall send copy of FDR to this court immediately after it is prepared.
Respondent no.3 insurance company instead of depositing the amount in the court is directed to directly send the award amount to the above mentioned banker of the petitioner for credit in the account of the petitioner as well as for preparation of the FDR as per above order. While sending the amount, respondent no. 3 shall also enclose copy of this order to PNB for compliance. Copy of this judgment be given to petitioner and counsel for respondent no. 3 who be also provided with the photocopy of pass book of the petitioner. File be consigned to record room.
(Ashwani Sarpal)
Dt. 02.02.2011 Judge, MACT (Outer-II)