Delhi District Court
Sh. Harsh vs Deepak Kumar on 22 May, 2012
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IN THE COURT OF MS. PREETI AGRAWAL GUPTA:
JUDGE: MACT(OUTER): ROHINI: DELHI
Case No. 1133/08
Sh. Harsh, s/o Sh. Umed Singh
r/o Village & PO Kanjhawala
near Shiv Mandir ,Delhi.
....Petitioner
Versus
1. Deepak Kumar, s/o Kalyan Singh
r/o Jhuggi Janak Puri Camp
near C2 block, Sector 20
Rohini, Delhi
2. Sh. Kapil s/o Sh. Jai Pal Singh
r/o T 456, L, Chiragh Delhi
New Delhi - 17
3. The Oriental Insurance Company Limited
G80, Laxmi Nagar, Delhi
....Respondents
DATE OF INSTITUTION : 28.11.2006 JUDGMENT RESERVED ON : 16.05.2012 DATE OF JUDGMENT : 22.05.2012 AWARD:
1. The petitioner has filed the present claim petition by way of the present petition under Section 166 and 140 of the Motor Vehicle Act seeking compensation for permanent Case No. 1133/08 Harsh V. Deepak Kumar 2 disability caused by the accidental injuries sustained by the petitioner. It is the case of the petitioner that on 27.03.08 at about 2:15 p.m the injured/petitioner was going to his village Kanjhawala, Delhi on his motor cycle no. DL4SU5449 make Hero Honda Passion from Rohini. In the meanwhile, when the petitioner reached at Begum Pur chowk, a Tata Tempo bearing no. DL1LG3403 which was being driven in a rash and negligent manner came from Prahladpur side and hit the motorcycle of the petitioner/injured. Due to the forceful impact, petitioner received grievous injuries including fracture, injuries in his leg and forearm. After some time of the accident, petitioner was admitted in Sanjay Gandhi Memorial Hospital, Delhi. The petitioner remained admitted in Sanjay Gandhi Memorial Hospital from 27.3.06 to 6.4.06 and thereafter the petitioner was got admitted in Orthoplus Hospital, Najafgarh, New Delhi on 6.4.06 and remained admitted till 23.04.06 for his treatment. He was operated thrice and a rod was also inserted during the course of operations. The patient could not recover properly and was readmitted in the same hospital on 3.7.06 for one day i.e 04.07.06. It is claimed that the petitioner has incurred medical expenditure of about Rs. 2,50,000/ on his treatment till now and is still Case No. 1133/08 Harsh V. Deepak Kumar 3 spending on his treatment. The FIR No. 456/06 under Section 279/337/338 IPC at PS Sultan Puri was registered against the driver/respondent No.1. It is the case of the petitioner that the offending vehicle was being driven by respondent No. 1 at a very high speed in a rash, negligent and reckless manner, as a result of which, it hit the petitioner causing him to fall down on the road thereby sustaining grievous injuries resulting in permanent disability.
2. The petitioner is a young man of 28 years, who was 25 years of age at the time of accident. It is the case before the court that the petitioner suffered multiple and grievous injuries due to the road accident and underwent prolonged treatment incurring a huge medical expenditure and his treatment is still continuing. The petitioner was doing private service as Ward Boy and was drawing monthly Rs. 3,271/ per month besides benefit of about Rs. 1000/. It is averred that the petitioner has suffered mentally, physically as well as financially and has prayed for compensation for the permanent disability, pain and agony, conveyance, special diet and loss of income, etc. and claim of Rs.15,00,000/ is claimed by the petitioner.
3. The respondent No.1 is the driver and the respondent No.2 is the owner of the offending vehicle, who filed their Case No. 1133/08 Harsh V. Deepak Kumar 4 written statement denying the occurrence of the very accident in question. It is however admitted that respondent No.1 is the driver and respondent No.2 is the owner of the offending vehicle, which is stated to have been insured with respondent No.3/ The Oriental Insurance Co. Ltd. for the relevant period of the accident. However, it is denied that the petitioner is not entitled to get any compensation from the respondents as the respondents as well as the alleged vehicle was never involved in the alleged accident and the respondent no. 1 & 2 have been falsely implicated in this case just to extort money from them. It is stated that the accident had caused due to rash and negligent driving of motorcyclist bearing no. DL1LG3403 and the respondents are not liable to pay the compensation.
4. The respondent No.3/Insurance Company filed written statement stating there in that a policy no. 271700/31/2006/16511 was issued to Sh. Kapil s/o Sh. Jaipal Singh T 4566, Chirag , Delhi - 17 for period from 16:15 hours on 09.03.06 to midnight of 8.3.2007 for new vehicle make LPT 407 Turbo bearing Engine no. ATZ807628 and chasis no. ATZ802626. However, the preliminary objections have been raised on behalf of the insurance company for contesting the present claim Case No. 1133/08 Harsh V. Deepak Kumar 5 absolving it from its liability to pay in case of any of the breach of terms and conditions of the policy including the objection pertaining to possession of valid and effective driving licence by driver of the insured vehicle. It is as such admitted that the offending vehicle in question was duly insured with it. Respondent no. 3 averred that if any accident occurred then it is due to the rash and negligent act on the part of the injured/driver of vehicle no. DL4SAU 5449 (motor cycle driven by injured). The claim of the petitioner has been denied and its own liability has also been denied.
5. From the pleadings of the parties, following issues were framed vide order dated 23. 01.2009
1. Whether the petitioner received injuries in the motor vehicle accident caused by offending vehicle no. DL1LG3403 (Tata Tempo) at 2:15 p.m on 27.3.06 near Begumpur Choraha, near CNG Camp, Begampur, Delhi due to rash and negligent driving of of R1/driver ?OPP
2. Whether the driver/R1 of offending vehicle was possessing valid an effective driving licence?OPR3
3. Whether petitioner is entitled to compensation if so, to what extent and from which of the respondents? OPP
4. Relief.
6. The petitioner/injured appeared as PW1 and tendered his affidavit in evidence vide Ex. PW1/A , wages slip as mark A , certified copy of MLC as Ex. PW 1/1, certified Case No. 1133/08 Harsh V. Deepak Kumar 6 copies of criminal record as Ex. PW 1 /2 to Ex. PW 1/6, certificate of permanent disability issued by Sanjay Gandhi Memorial Hospital as Ex. PW 1/7, diploma from ITI as Ex. PW 1/8 and medical bills as Ex. PW1/9 to Ex. PW 1/118 collectively. The injured who has deposed as PW1 has been crossexamined at length in respect of medical expenses and salary as well as loss of earning. The injured has deposed that he was the registered owner of the motorcycle bearing no. DL4SAU5449 and was driving the motorcycle at the time of accident and that there was a pillion rider sitting behind him but he was not injured in the accident. The petitioner has been further cross examined and he had deposed that he was wearing helmet but pillion rider was not wearing any helmet. The petitioner has also cross examined on other various aspects also. It has been denied that the accident occurred due to negligent driving of the injured himself. The petitioner has been further cross examined regarding the nature of his employment and period of loss of income. Also, PW1/petitioner has been cross examined about his educational qualification. PW1 specifically denied that he had filed false or concocted medical bills or bills of conveyance and has categorically denied the suggestion that he did not spend the amount on Case No. 1133/08 Harsh V. Deepak Kumar 7 his medical treatment as claimed. It has been admitted by the petitioner that he got married after the accident. It is denied that any medical reimbursement has been taken from his own office.
7. Dr. Sanjay Kumar has appeared as PW2 who has deposed that he had examined the patient Harsh and the Board found disability of 72% in relation to right lower limb and right upper limb. He has proved the disability certificate of injured as Ex. PW 1/1 as well as medical treatment record of Harsh as Ex. PW 2/1 to Ex. PW 2/10 (OSR). He was crossexamined by Ld counsel for insurance company wherein the witness has deposed that the 72% disability mentioned in the certificate is combined disability of upper limb as well as lower limb as per prescribed guidelines , the amputation of a finger constitutes 3% of disability of the upper limb and remaining was of lower limb. He has denied the suggestion that disability of the petitioner has not been calculated as per the prescribed guidelines for disability assessment to quantify permanent physical impairment by National Institute of the Orthopaedic Handicap and the Gazette of India, PartII.
8. Dr. Rajiv Maheswari, Sr. Consultant, Orthopaedic, Maharaja Agarasen Hosptial has appeared as PW3. He has Case No. 1133/08 Harsh V. Deepak Kumar 8 deposed that injured Harsh Kumar was admitted on 25.10.06 and discharged on 4.11.06. He has deposed that at the time of admission, he had comminuted intercondylar left femur bone. He had operated him on 28.10.06 and did Athrodesis of the knee joint and a nail was inserted. The injured had been coming up for the followup up to July 2007. The witness has been cross examined by counsel for insurance company wherein he has deposed that at the time of discharge, the condition of petitioner was satisfactory.
9. PW4 Dr. S. K. Gaur has been examined from Orthoplus Hospital who has deposed that the Harsh was admitted in the hospital on 06.04.06 and was discharged on 23.04.06. He has deposed that he has operated the petitioner and he was discharged in a stable condition . He was again admitted on 3.7.2006 for removal of implant and application of plaster cast and was discharged on 4.7.06 vide Ex. PW 4/A. He has also proved the discharge certificate Ex. PW 4/A which was issued by their hospital and bills Ex. PW 1/79 to Ex. PW 1/83. He has deposed that the total bill amount was amounting to Rs. 97,641.80 whereas Ex. PW 1/80 to Ex. PW 1/83 were the details of medicines etc which have been included in the total bill. Ex. PW 1/78 was an OPD bill, Ex. PW 1/75 and Ex. PW 1/76 were X ray receipts included in Case No. 1133/08 Harsh V. Deepak Kumar 9 the OPD bill dated 12.10.06, Ex. PW 1/74 is OPD bill, Ex. PW 1/70 is X ray receipt which is included in bill dated 26.09.06. Ex. PW 1/69 was an OPD bill which includes the amount of X ray receipts as Ex. PW 1/66. Ex. PW 1/63 to Ex.PW1/65 were OPD bills including Xrays and medicines. Ex. PW1/38 and Ex. PW 1/39 were the OPD bills. He has deposed that the medical certificate Ex. PW 4/C was issued by him. He has been crossexamined at length by Counsel for Insurance Company wherein the medical witness had deposed that the bills were issued to the patient on the basis of the treatment and expenditure incurred upon the patient. It has been deposed that Ex. PW 4/C is the medical certificate issued by the doctor on 15.07.06 certifying that the injured was advised bed rest for the period of six months with advice not to bear weight and walk. On query regarding time gap between the medical certificate issuance and date of discharge, it is deposed that the patient was discharged from the hospital on 04.07.2006 whereas certificate Ex. PW 4/C was issued about ten days after the patient's discharge with the explanation that the condition of the patient was assessed after a rest of 12 weeks being taken by the patient . It has been specifically denied that any medical opinion or certificate was issued to the patient to help him in getting unreasonable compensation.
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10. Mr. Jagdish Prasad has appeared as PW5 who had brought the treatment record of petitioner of Ortho Plus Hospital and stated that he could not bring the record of bills and receipts as the same has been destroyed because of water since they were lying in the basement of hospital . Ex. PW 1/49 and Ex. PW 1/79 are the comprehensive bills (already exhibited ) in regard to patient Harsh Kumar. In his crossexamination the witness has deposed that only the bills of the year 2007 were destroyed . He has denied the suggestion that he had no knowledge whether payment of the comprehensive bills received by the hospital or not due to the destruction of bills.
11. No other witness has been examined and petitioner evidence has been closed.
12. Sh. Sushil Kumar Saini, Assistant from Oriental Insurance Co. Ltd as its witness has relied upon notice U/o 12 Rule 8 CPC as Ex. R3W1/1 and Ex. R3W1/2 duly served upon the driver and owner/respondent no. 2 vide postal receipts Ex. R3W1/3 and Ex. R3W1/6 respectively. The returned registered envelopes were tendered as R3W1/7 and R3W1/8. The computerised policy is tendered as Ex. R3W1/9. The insurance company has also tendered the copy of the permit and driving licence as Ex. R3W1/10 and Case No. 1133/08 Harsh V. Deepak Kumar 11 R3W1/11. The witness has been cross examined by counsel for R1 & R2 . He has been crossexamined by Ld. Counsel for respondent no. 1 and respondent no. 2 specifically putting the suggestion to the deposing witness that the relevant documents sought by the Insurance Company were already provided in original during the proceedings in the court. The insurance witness was also crossexamined on behalf of other respondents on the ground that the insurance company is liable to indemnify the driver and owner in respect of the road accident in question as per the valid policy and relevant documents. This suggestion was denied by the witness.
13. Sh. Satish Kumar , LDC from MLO Office was examined as R3W2 and proved the summoned record pertaining to owner information record of offending vehicle no. DL1LG3403 which shows that as on 27.3.06 the registered owner of the vehicle was Kapil s/o Jai Pal Singh. The vehicle was registered as a light goods vehicle and transferred in the name of Sh. Ashok Kumar w.e.f 16.3.09. The verification reports from the official records have been tendered as Ex. R3W2/1 and Ex. R3W2/2.
14. Sh. Rajender Singh, Record Keeper has been examined as R3W3. He deposed from the summoned record pertaining Case No. 1133/08 Harsh V. Deepak Kumar 12 to the driving licence of driver Deepak Kumar s/o Kalyan Singh that he was holding a driving licence for motorcycle/LMV which was issued for private vehicles. The official record has been proved as Ex. R3W1/1. It is averred that the driver was issued the licence for commercial vehicle for LTV (Taxi) and LMV (commercial ) as on 25.05.2006 vide Ex. R3W2/2. The witness has also been cross examined by ld counsel for respondent nos. 1 and
2. The witness has deposed that all files and records pertaining to temporary commercial licences used to be destroyed after six months and he is not aware if Ex. R3W2/3 for commercial licence was issued on deposit of alleged temporary commercial licence of the driver/respondent no.1.
15. The court has duly heard the Ld. Counsel for the petitioner and the insurance company and has also duly appreciated the pleadings and material on record along with the evidence tendered before the court.
16. The issues in the petition are being adjudicated as under:
ISSUE NO 1: "Whether the petitioner received injuries in the motor vehicle accident caused by offending vehicle no. DL1LG3403 (Tata Tempo) at 2:15 p.m on 27.3.06 near Begumpur Choraha, Case No. 1133/08 Harsh V. Deepak Kumar 13 near CNG Camp, Begampur, Delhi due to rash and negligent driving of of R1/driver ?OPP
17. According to the petitioner, the accident was caused by rash and negligent driving of respondent no. 1/driver of the offending Tata Tempo bearing no. DL1LG3403. The petitioner has deposed as PW1 and has specifically testified against the driver/respondent no.1 as driver of the offending vehicle. The petitioner /injured in his evidence of affidavit as PW1 has specifically testified that the respondent no.1 was driving the offending vehicle at an uncontrollable speed and hit the petitioner as a result of which petitioner suffered multiple injuries. The averments in the petition and the deposition of the petitioner in Ex.PW1/A is unbreached and uncontroverted on the aspect of the occurrence of the accident and the involvement of the offending vehicle which hit the petitioner. The defence taken by respondent nos. 1 and 2 that the accident did not take place due to rash and negligent driving of respondent no. 1 is not supported by any reliable evidence. The Insurance Company has not been able to prove any contributory negligence on the part of the victim. During the cross examination, PW1 duly explained that he was driving the motor cycle bearing no. DL4SAU5449 and was wearing a helmet is not material here to be examined whether the pillion rider was wearing a helmet or not since he Case No. 1133/08 Harsh V. Deepak Kumar 14 is not the injured at all in the road accident in question. Even otherwise, the injuries sustained by the petitioner in the road accident in question are in the areas of upper and lower limbs and therefore, there is no case before the Court to contribute any contributory role of the petitioner in the negligence in the occurrence of the road accident in question.
18. The witness has also been cross examined regarding the involvement of the offending vehicle. The record pertaining to criminal investigation has been perused and reveals that an FIR No. 456/06 u/s 279/337/338 IPC has been registered at P.S Sultan Puri against the respondent no.1/driver of the offending vehicle/Tata Tempo bearing no. DL1LG3403. The FIR and all the relevant documents before the Court evidently show that the accident involving the petitioner/ victim was caused by the respondent no.1 while driving the offending vehicle, rashly and negligently thereby causing serious injuries upon the petitioner causing him disability.
19. The petitioner has deposed as PW1 and specifically testified that the respondent no. 1 was driving the offending vehicle at an uncontrollable speed and hit the petitioner due to which he sustained multiple grievous injuries including crush injuries thereby leading to his disability . The averments in the petition and the deposition of the petitioner in Ex.PW1/A is unbreached and uncontroverted on the aspect of the occurrence of the accident and the Case No. 1133/08 Harsh V. Deepak Kumar 15 involvement of the offending vehicle which hit the petitioner. The defence taken by respondents no. 1 & 2 that the accident did not take place due to rash and negligent driving of respondent no. 1 is not supported by any reliable evidence. FIR No. 456/06 PS Sultan Puri was registered in respect of the accident in question in which respondent no. 1/driver is the accused.
20. As regard the injuries caused to the petitioner, the entire medical record has been placed which has been carefully appreciated. The injured suffered road accident on 27.03.06 and was admitted at Sanjay Gandhi Memorial Hospital where he was treated for multiple grievous and crush injuries on his body. The petitioner remained admitted at Sanjay Gandhi Memorial Hospital from 27.3.06 to 6.4.06. The petitioner/his family was not satisfied with the treatment and therefore he was shifted to Orthoplus Hospital at Najafgarh, Delhi where he remained admitted from 06.04.06 to 23.04.06. During this period, the patient was operated three times and a steel rod was inserted in his leg. Even after discharge, petitioner continued to receive treatment as out door patient and required readmission at Orthoplus Hospital for one day hospitalisation from 3.7.06 to 4.7.06 for removal of implant. As the petitioner failed to Case No. 1133/08 Harsh V. Deepak Kumar 16 recover properly, he further got treatment from Maharaja Agarsen Hospital , Punjabi Bagh , New Delhi and remained admitted there from 25.10.06 to 04.11.06. The entire aforesaid medical record is duly proved vide testimony of the petitioner as Ex.PW1 duly supported and corroborated by testimonies of the medical witnesses from the concerned hospitals. Despite cross examination, no breach or contradiction could surface in the testimonies of the petitioner witnesses PW1 to PW5. As regards the continuous treatment of the petitioner/injured , requisite procedures including the operations and removal of implants have been undergone by him repeatedly. During the proceedings, disability certificate Ex. PW1/7 was issued to the petitioner by the Medical Board of Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi . PW1 was assessed with permanent physical disability of 72% in relation to his lower and upper limbs. The issue is accordingly, decided in favour of the petitioner. 21. ISSUE NO. 2 Whether the driver of the offending vehicle held valid driving licence? OPR 1 & 2 The onus to prove this issue has been casted upon respondent no. 3/Insurance Company. In the written statement Case No. 1133/08 Harsh V. Deepak Kumar 17 filed on behalf of Insurance Company, the objections has been taken that in case driver/respondent no. 1 did not have proper and valid driving licence then the insurance company shall be absolved from its liability owing to breach in the terms of its policy as per provisions U/s 149 (2) Motor Vehicle Act. The insurance company has examined first witness R3W1 Sunil Kumar Saini to prove the notice U/o 12 Rule 8 CPC to the driver and owner for production of original policy, valid and effective driving licnece and permit of the offending vehicle. The services of the notices has been duly proved. It has been deposed by R3W1 that the driver was not holding valid and effective driving licence at the time of accident on 27.3.06. In cross examination on behalf of respondent no. 1/driver and respondent no. 2/owner that there was no dispute in respect of the insurance policy and permit of the offending vehicle. Hence, the present issue is only to be examined in respect of possession of the type of driving licence by driver of the offending vehicle.
22. It is not necessary , therefore, to examine the testimony of R3W2 Satish Kumar which duly proves the verification reports in respect of the ownership of the offending vehicle. The most relevant testimony in this regard is of R3W3 who was the record keeper, Motor Licencing Authority of the concerned Rohini Zone. The driving licence of the respondent no. 1 as on the date of the accident on 27.03.06 was valid and effective for motorcycle, LMV for private vehicles. The official record is duly proved Case No. 1133/08 Harsh V. Deepak Kumar 18 as R3W3/1. It has been further testified that the driver/respondent no. 1 was issued licence for commercial vehicle for LTV (taxi) and LMV (commercial) on 25.5.06 and record is proved vide Ex. R3W3/2. The witness has been cross examined by Ld counsel for Respondent no. 1 and respondent no. 2 in regard to the issuance to temporary commercial licence in favour of respondent no. 1 during the month of February, 2006 which is prior to the date of accident. The deposing witness, as on the date of deposition on 01.10.10, had deposed that all files and records pertaining to temporary commercial licences are destroyed after six months. This implies that there was no record available to show that the respondent no. 1 was not holding a temporary commercial licence for driving the alleged offending vehicle on the date of accident as is claimed by the driver and owner of the offending vehicle. The witness from the Transport Authority also could not contradict the suggestion that commercial licence Ex. R3W3/3 was issued to the respondent no. 1 on deposit of the temporary commercial licence.
23. The entire relevant material and evidence has been examined. It is not disputed case that the respondent no. 1 was holding a valid and effective driving licence as on the date of accident. It is also not a disputed case that the offending vehicle was a goods carrier vehicle covered in the category of "commercial vehicle" . As per its registration certificate and also that it was duly insured under the applicable category vide Ex.
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R3W1/9. Though, respondent no. 3 has tried to bring all relevant record from the concerned Transport authority in respect of driving licence of the driver of the offending vehicle but it has been duly brought on record that respondent no. 1/driver was having a confirmed and proper driving licence to drive the commercial tempo w.e.f 25.05.06. Sufficient doubt has been created during the cross examination of R3W3 in regard to the claim of respondent no. 1 that he was possessing a temporary commercial licence w.e.f February, 2006. It appeals to logical thinking and reasonable mind that the respondent no. 1 was possessing a temporary commercial licence in February 2006 which is prior to the accident in question and that he was issued a confirmed driving licence for commercial vehicles for the applicable category on 25.5.06. It is duly proved and established that all files and records pertaining to temporary commercial licences are destroyed and cannot be produced. The witness also could not deny the suggestion that the temporary commercial licence was deposited at the time of issuance of the commercial licence Ex. R3W3/2.
24. In the light of the entirety of the facts and circumstances, respondent no. 3/Insurance Company has not been able to prove any breach in possession of valid, effective and proper driving licence by respondent no. 1/driver of offending vehicle as on the date of accident. The issue is accordingly decided against Insurance company and in favour of respondent nos. 1 and 2.
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25.ISSUE NO.3:
Whether petitioner is entitled to compensation if so, to what extent and from which of the respondents? OPP The court is now to decide on quantum of compensation i.e. payable to the petitioner and is to ascertain and decide such compensation i.e. just and reasonable in the facts and circumstances of the case.
26. The guiding principles for assessment of "just and reasonable compensation" in injury cases has been laid down by Hon'ble Delhi High Court, in III (2007), ACC 676 titled as Oriental Insurance Co,. Ltd., Vs. Vijay Kumar Mittal & Ors that: " The possession of one's own body is the first and most valuable all human rights and while awarding compensation for bodily injuries this primary element is to be kept in mind. Bodily injury is to be treated and varies on account of gravity of bodily injury.
Though it is impossible to equate money with human suffering, agony and personal deprivation, the Court and Tribunal should make an honest and serious attempt to award damages so far as money can compensate the loss. Regard must be given to the gravity and Case No. 1133/08 Harsh V. Deepak Kumar 21 degree of deprivation as well as the degree of awareness of the deprivation. Damages awarded in personal injury cases must be substantial and not token damages".
27. It has been further held by the Hon'ble High Court that:
"the general principle which should govern the assessment of damages in persons injury cases is that the Court should award to injured persons such a sum as will put him in the same position as he would have been in the same position as he would have been in if he had not sustained injuries".
28. In the road accident in question in the facts of the case, the petitioner has suffered disability in respect of crushed injuries of index finger of right hand and stiff knee and connected disability of right lower limb. The medical Board assessment of permanent physical disability of the petitioner is 72 % and the medical witnesses /orthopaedic doctors have been examined before the court who has not been able to depose as to the disablement percentage of whole body and the effect of such disablement on the earning capacity of the petitioner. This court is to decide and ascertain the effect of permanent disability on the actual Case No. 1133/08 Harsh V. Deepak Kumar 22 earning capacity of the petitioner. In the accident, the petitioner has suffered certain loss of functional capacity of of right upper limb and right lower limb. Petitioner has suffered amputation of index finger of right hand and has been suffering from immobility to his knee joint of his right leg.
29. Admittedly, the medical opinion in respect of medical disability of the petitioner does not refer to " whole body disablement" and also does not take into account loss of earning capacity of an individual. The Hon'ble Apex Court in Raj Kumar Vs.Ajay Kumar & Anr. 2011, ACJ, 1 SC and has laid down binding guidelines for ascertainment of the effect of the permanent disability on the actual earning capacity of an individual. The court has taken into account the guidelines applicable in the facts of the present case. The petitioner was a Ward Boy and the said fact has been duly proved by the testimony of PW1 himself. As such the petitioner has not summoned any records from the concerned hospital or agency to show the extent of his income and nature of his employment. However, one copy mark A has been put on record vide testimony of PW1 showing the designation of petitioner as Ward Boy in February 2006 with gross payable wages @ 3271/ per Case No. 1133/08 Harsh V. Deepak Kumar 23 month. The petitioner has also proved Ex. PW 1/8 which is Diploma of Vocational Training received by him in the trade of denting,benting, spray painting from ITI, Pusa. The engagement of the petitioner in various activities for earning livelihood was indisputably dependent upon the physical movement of the petitioner. The petitioner was 25 years at the time of accident as is evident from the diploma issued by ITI to petitioner as Ex. PW 1/8 on record whereby his date of birth is recorded as 12.04.81. It is to be determined whether the petitioner has been rendered disabled from earning to what extent any kind of livelihood due to permanent disability or if he is still capable of effectively carrying on activities and function which he was earlier carrying on for earnings. It is also to be examined whether the petitioner could carry on some other or lesser scale of activities and function so that he can continue to earn his livelihood. In order to ascertain and assess "just compensation" regard has to be given to the entirety of the aforesaid facts and circumstances. The petitioner was working as a Ward Boy and after the disability in respect of right upper and lower limbs to the extent of 72% , his physical movement is substantially restricted and he is now unable to carry out his duties as a Ward Boy. It has been Case No. 1133/08 Harsh V. Deepak Kumar 24 duly proved on record that owing to disability suffered by the petitioner, the petitioner cannot move his right knee and cannot walk and run like a normal person. It has been duly testified by Sr. Medical Consultant/Orthopedic from Maharaja Agarsen Hospital as PW3 that the petitioner was, however , capable of carrying out activities running, lifting of weight to some extent. As regards, amputation of his index finger of right hand in testimony of PW2 is important to be examined as the Doctor from the Member of the Board for assessment of disability of the petitioner and has stated in his cross examination that the petitioner has suffered 3% disability of upper limb as approved guidelines applicable for amputation of finger. It has already been discussed here in above that honest assessment of actual functional capacity of the petitioner is to be ascertained from the nature of work and in the present case, the amputation of index finger of right hand of the petitioner cannot be justified to be assessed for functional capacity to the extent of only 3% of loss of earning capacity. The petitioner is a diploma holder from ITI Pusa in vocational training for Denting & Painting and was not pursuing his job in the same field of expertise while working as a Ward Boy in the hospital. Regard has to be given to the earning capacity and the Case No. 1133/08 Harsh V. Deepak Kumar 25 capability of the petitioner at the time of accident and thereafter. At the young active age of 25 years, it can be reasonably assumed with surety that petitioner had a good job work prospects and that the petitioner has substantially suffered loss of earning capacity due to disability. The permanent disablement of the petitioner has been assessed medically at 72 % in respect of right upper as well as lower limbs. The petitioner has been incapacitated to great extent to pursue various physical activity including the duties of Ward Boy and has definitely suffered loss of future earning capacity. Therefore, court deems it appropriate to assess that the petitioner has suffered loss of future earning capacity of 50%. Loss of future earning capacity is accordingly, assessed at 50 %.
30. It is the case of the petitioner that he was earning Rs. 3271/ per month from Ward Boy duty besides Rs. 1000/ as additional income which comes to Rs. 4271/ in all. The petitioner was a young active man with good future prospects and considering that even if even Ward Boy duty is not permanent, it is certain and can be recently assumed that the petitioner would have gainfully employed himself in some or other gainful employment or work. It is the averred by the petitioner that he was earning Rs. 4,271/ Case No. 1133/08 Harsh V. Deepak Kumar 26 per month including the benefits being received by him from his employment at the time of accident. The minimum wages applicable to matriculate at the time of accident was Rs. 3,719 per month. The income of petitioner is, therefore, allowed to be assessed at Rs. 3,719/ per month.
31. The Hon'ble High Court of Delhi has duly considered and appreciated the various relevant decisions of the Hon'ble Supreme Court of India and discussed the applicable aspects of law pertaining to "additions" in the minimum wages on account of inflation for computation of compensation in its detailed orders dt. 19.03.2012, passed in considerable number of cases involving similar question of law alongwith MAC APP. No. 997/2011 in case titled Smt. Dhaneshwari & Anr. Vs. Tejeshwar Singh & Ors. It has been held that there shall be no addition in the minimum wages on account of inflation for computation of compensation. It is further relevant to take into consideration the law laid down by Hon'ble Supreme Court in case titled Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., SLP (C) No. 8648 of 2007, wherein it has been held that the claimants shall be entitled to addition on account of future prospects depending upon the facts of each case. Uniform guidelines have been laid down for computation of Case No. 1133/08 Harsh V. Deepak Kumar 27 addition on account of future prospects depending upon the age of the deceased/disabled and nature of employment of the victim. The law has been further developed in by Hon'ble Supreme Court in its latest judgment in Santosh Devi Vs. National Insurance company Ltd. and ors. in Civil Appeal NO.,. 3723 of 2012 arising out of SLP (C) No. 24489 of 2010. The Hon'ble Division Bench of Supreme Court has observed that aspect of future prospects shall be a relevant consideration in computation of just and proper compensation even in cases where the deceased was self employed or on a fixed salary without provisions for annual increments etc. Therefore, the law of the land clearly lays down the principles of just and proper computation of compensation on account of loss of income after duly considering the future prospects of the deceased as per the uniform multiplier schedule laid down in Sarla Verma's Case. In the present case, as afore discussed, the monthly income of the petitioner has been assessed at Rs. 3719/ per month. The age of the petitioner at the time of the accident is 25 years and, therefore, the addition on account of future prospects shall be 50% of the income of the injured/petitioner as applicable to persons aged below 40 years. Accordingly, the monthly income of the deceased Case No. 1133/08 Harsh V. Deepak Kumar 28 comes out to Rs. 5578.50 per month ( 3719/ + 50 % of 3719/) which is rounded off to Rs. 5580/.
32. On behalf of respondents, it is argued that at least 1/3rd deductions on account of personal expenses should be made. It has been held by Hon'ble High Court of Delhi in number of authorities that no deduction is permissible towards the personal expenses in injury cases.
33. 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 the whole body. Accident took place on 27.3.08. The date of birth of the petitioner is 12.04.1981 as per his Diploma from ITI Pusa and as on the date of accident the petitioner was 25 years of age. Hence in view of the decision of Hon'ble Supreme Court given in Sarla Verma vs. DTC 2009 ACJ 1298, multiplier of 17 has to be applied to compute his loss of earning capacity. Hence the total loss of future income or earning capacity comes to 5,69,160/ as per the formula (Rs.5580/ X 12X 17X50% ). Accordingly petitioner is granted loss of earning capacity at Rs. 5,69,160/ which is rounded of to Rs. 5,70,000/
34. The treatment of petitioner has been done in various hospitals. The petitioner has stated in the petition that Case No. 1133/08 Harsh V. Deepak Kumar 29 he was first admitted in Sanjay Gandhi Memorial Hospital and there after he was shifted to Orthoplus Hospital where he remained hospitalised from the period 06.04.06 to 23.04.06 where three operations have been conducted. At the stage of evidence, PW1 has deposed that he had spent Rs. 97,641/ including expenses of medical and provisional bills which is duly proved vide Ex. PW 1/79. PW1 has further deposed that he could not recover properly and was readmitted in the same hospital i.e Orthoplus Hospital, Najafgarh on 3.7.06 to 4.7.06 which has been duly proved vide medical bill Ex. PW 1/49 amounting to Rs. 10,100/ . The petitioner has also duly proved the expenditure by way of final bill of Maharaja Agarsen Hospital for a sum of Rs. 23,195/ vide Ex. PW 1/89. It is also the case of the petitioner that he continued to receive treatment as Out patient and various bills have been duly proved in this regard. After considering the judicial record and taking into account all the medical bills filed by the petitioner towards his treatment as out patient, the composite sum of Rs. 2 lakh is granted in favour of petitioner towards medical expenditure.
35. The claim has also been pressed for future medical expenses with the contention that the petitioner has been Case No. 1133/08 Harsh V. Deepak Kumar 30 incurring regular medical expenditure. However, no medical record for continuing treatment has been placed on record for assessment of regular medical expenses towards future. In any case, it has been rightly contended by ld. Counsel for insurance that the purpose of grant of compensation is to ensure well being of the petitioner and taking care of his regular expenses including medical expenses from the income that shall accrue of interest upon the compensation Award.
36. Now, it remains to be examined whether petitioner has suffered any loss of income for the period of treatment. As in injury cases not involving disability, the petitioner shall be rightfully entitled to receive actual loss of income which he has suffered for the intervening period between the date of accident and the time when he become capable or rehabilitating himself into regular routine of life despite disability. The petitioner has duly proved the long period of treatment vide indoor treatment in various hospitals as well as continuous medical attendance required by him as a out patient up to July, 2007. It is claimed for the petitioner that he should be granted the compensation for loss of income for at least a period of one and a half year at the computation as per his earnings. It has already been Case No. 1133/08 Harsh V. Deepak Kumar 31 duly considered and discussed that in absence of any proof of earnings to the extent claimed by the petitioner, the Ward Boy certificate relied upon in photocopy by the petitioner further justifies the reasonable assessment of earning of the petitioner at the time of accident at minimum wages as computed above which is Rs. 3719/ . It shall reasonable and appropriate after duly considering the nature of injuries and the subsequent disability as well as the medical treatment received by the petitioner to allow compensation on account of actual loss of income for period of one year . Hence, loss of income comes to Rs. 3719 X 12 = 44,728/ which is rounded of to Rs. 45,000/.
37. The petitioner has further claimed that he had spent huge sums of money on conveyance, special diet etc. There has been no documentary or otherwise evidence to show the actual expenses against these heads as claimed by the petitioner. Some conveyance bills have been filed by the petitioner as Ex. PW1/115 for Rs. 4800/ and Ex. PW 1/117 for Rs. 1800/ which have been denied and contested. No proof of expenses incurred on the special diet has been shown. As there is evident material record that the petitioner underwent prolonged treatment, it is considered reasonable and justified to allow a composite sum of Case No. 1133/08 Harsh V. Deepak Kumar 32 Rs. 20,000/ towards special diet and conveyance.
38. In addition to the above assessment against various entitled heads of pecuniary damages, the petitioner is also entitled to nonpecuniary damages. After taking into account of the relevant facts, the Hon'ble Supreme Court of India has held in case Raj Kumar Vs.Ajay Kumar & Anr. 2011, ACJ, 1 SC, that "when compensation is awarded by treating the loss of future earning capacity as 100 % ( or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be award under the head of loss of amenities or loss of expectation of life , as otherwise there may be a duplication in the award of compensation."
39. In view of the binding legal position, the petitioner will still be entitled to nonpecuniary damages under the head of compensation of pain and suffering. Though, nonpecuniary loss can not be assessed in terms of money, the petitioner is granted an amount of Rs. 1 lac towards pain and suffering, Case No. 1133/08 Harsh V. Deepak Kumar 33 inconvenience, mental shock and trauma as a consequences of injuries. It has been duly considered in the present case that the petitioner has suffered amputation of index finger of right hand but the main disability has been assessed on account of stiffness of knee of right leg. The petitioner has got married after the occurrence of accident and therefore may be, God willing, able to reorient himself for enjoyment of life by overcoming the limitations imposed upon him due to his disability. In the facts and circumstances, a consolidated sum of Rs. 1 lac is granted towards damages owing to disability and loss of amenities of life.
40. Thus, the total compensation payable to petitioner is detailed as below:
Pecuniary Head
1. Loss of earning capacity 5,70,000/
2. Medical expenses 2,00,000/
3. Loss of actual income 45,000/
4. Conveyance and special diet 20,000/ ____________ Total compensation Rs. 8,35,000/ _____________ Non Pecuniary Head
1. Pain and suffering Rs. 1,00,000/
2. Loss of damages owing to disability & loss of amenities of life. Rs.1,00,000/ ____________ Rs. 2,00,000/ Case No. 1133/08 Harsh V. Deepak Kumar 34
41. Hence, the total compensation payable to petitioner as below:
Compensation under Pecuniary head : 8,35,000/ Compensation under nonpecuniary head : 2,00,000/ ___________ Rs. 10,35,000/
42. So far as the liability to pay the compensation is concerned, it has already been discussed and adjudicated in Issue no. 2 that there has been any violation of the terms and conditions of the insurance policy. In these circumstances, respondent no. 1 being the driver is primarily liable to pay the compensation. The respondent no. 2 and 3 being the owner and insurer are vicariously liable to pay the compensation. In the aforesaid, the compensation is payable by the respondent no.3 being the insurer as on the date of accident. This issue is decided accordingly.
44. Relief.
45. In view of the aforesaid discussions, I hereby hold that petitioner is entitled to a sum of Rs. 10,35,000/ (Rupees ten lakh thirty five thousand only) along with interest @ 9% per annum from the date of filing of present. However, amount if any, paid by way of interim award shall be liable to be adjusted.
46. Out of the awarded amount, in terms of the guidelines issued by Hon'ble Supreme Court of India in "General Case No. 1133/08 Harsh V. Deepak Kumar 35 Manager, Kerala State RTC Vs. Mrs. Susamma Thomas and others" for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation, the amount shall be disbursed in favour of the petitioner on the following terms:
(i) A sum of Rs. 5,00,000/ (Rupees five lakh only) be kept in an FDR for a period of ten years along with automatic renewal on maturity.
(ii) A sum of Rs. 2,00,000/ (Rupees two lakh only) be kept in an FDR for a period of five years with facility of automatic renewal at option of petitioner.
(iii) A sum of Rs. 1,00,000/ be kept in an FDR for a period of two years.
47. The remaining amount, alongwith accrued interest , be released, in his favour.
48. The FDRs shall have no facility of loan or advance. Petitioners can withdraw the interest monthly/quarterly. The FDR will not be encashed without permission of the court.
49. In view of the aforesaid findings and in terms of the award /order of this court, the petition is disposed off in aforesaid terms. Respondent no. 3/Insurance Company is directed to deposit the cheques in the name of the petitioner/claimant within 30 days Case No. 1133/08 Harsh V. Deepak Kumar 36 before this Tribunal. Respondent No.3 is also directed to furnish certificate of TDS, if applicable. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (PREETI AGRAWAL GUPTA) COURT ON 22.05.2012 JUDGE MACT: ROHINI (OUTERI): DELHI Case No. 1133/08 Harsh V. Deepak Kumar 37 Suit no. 1133/08 16.5.12 Present: Ld. Counsel for parties. Put up for orders on 22.05.2012. PO:MACT:DELHI Case No. 1133/08 Harsh V. Deepak Kumar 38 Suit no. 1133/08 22.05.12 Present: Ld counsel for parties
Vide separate award announced in the court today, an award in sum of Rs. 10,35,000/ alongwith interest payable from the date of petition is hereby passed in favour of the petitioner and against the respondents with liability to pay upon the respondent no. 3/ insurance company. Respondent No.3/Insurance company is directed to deposit the cheque in terms of the award within 30 days before this Tribunal. Petition is disposed of in aforesaid terms. File be consigned to Record Room.
(PREETI AGRAWAL GUPTA)
PO:MACT:DELHI
Case No. 1133/08 Harsh V. Deepak Kumar
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Case No. 1133/08 Harsh V. Deepak Kumar