Delhi District Court
Mohd. Sabeer @ Shabir Hussain vs Shri Shyam Babu Avasthi on 8 February, 2013
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 114/12/10
IN THE MATTER OF :
Mohd. Sabeer @ Shabir Hussain,
S/o Mohd. Khalil Ahmed,
R/o RZ48A/2, Gali No. 2,
Main Sagar Pur, New Delhi - 46.
2nd Add: RZC1/87A,
Ground Floor, Gali No. 6,
Sita Puri, Dabri, Palam,
Delhi - 45.
3rd Add: VIII, Noor Pur, P.S. & P.O.,
Noor Pur, Tehsil Chand Pur,
Distt. Bijnore, U.P.
... Petitioner
Versus
1. Shri Shyam Babu Avasthi,
S/o Mangla Prasad Avasthi,
R/o Subhash Nagar,
P.S. Subhash Nagar,
Distt. Bareilly, U.P.
2. Regional Manager,
U.P. State Road Transport Corporation,
Bareilly Depot, Bareilly, U.P.
... Respondents
MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 1 of 23
Filed on : 23.01.2010
Reserved on : 02.02.2013
Decided on : 08.02.2012
J U D G M E N T:
1. This is a claim petition filed under Section 166 and 140 of the Motor Vehicles Act, 1988.
2. It is stated in this claim petition that in the midnight of 12.06.2009 and 13.06.2009, the petitioner was traveling in a bus bearing No. UP25T9664 as he was proceeding towards his residence at Delhi from his native place at Noor Pur, Gajrola via Ghaziabad.
3. It is stated that the driver of the bus was driving the same in a rash and negligent manner without caring for the safety of passengers traveling in the bus.
4. At about 12:30 a.m., when the bus reached at Road near Jindal Pipe Factory, Ghaziabad, the driver of the bus hit a standing tempo which was out of order and was standing on the extreme left side of the road.
5. As a result of this forceful accident, petitioner and other passengers traveling in the bus received serious injuries all over their bodies.
6. The petitioner was removed to Pulmonic Multispeciality Hospital at Ghaziabad from the place of accident and is still under treatment for accidental injuries suffered by him.
7. It is stated that thereafter, petitioner was shifted to AIIMS Hospital and thereafter to Sir Ganga Ram Hospital and finally MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 2 of 23 to B.L. Kapoor Memorial Hospital from where he was discharged on 25.06.2009 after operation and amputation of right leg and he is still under active treatment.
8. It is stated that the petitioner has suffered permanent physical disability due to accidental injuries.
9. It is stated that the petitioner used to earn Rs. 10,000/ per month by running a Kabadi shop but as he is on bed, he has suffered monetarily.
10. It is stated that FIR No. 291/09 is registered at P.S. Masoori, Ghaziabad, U.P. under Sections 279/338 of IPC.
11. It is stated that claimant was 37 years of age at the time of accident and petitioner has claimed a compensation of Rs. 20,00,000/ with interest @ 12% per annum from the date of filing of this claim petition till its realization.
12. Respondent No. 1 was proceeded ex parte.
13. Respondent No. 2 stated in its written statement that the petition is without any cause of action as the accident was not caused due to any rash and negligent driving on the part of driver of the bus namely, Shri Sanjeev Kumar Sharma.
14. It is stated that the bus bearing No. UP25T9664 was being driven by Shri Sanjeev Kumar Sharma.
15. It is stated that ahead of the bus, a Canter was going which applied sudden brakes and brake lights of Canter were not even working. Therefore, rear portion of Canter was hit by front portion of bus and driver and conductor and some passengers traveling in the bus sustained injuries.
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16. It is stated that the accident was due to rash and negligent driving of driver of Canter and petition is bad for non joinder of necessary parties in the absence of driver, owner and insurer of Canter bearing No. DLIM1734.
17. It is stated that Respondent No. 1 was not the driver of the bus but the bus was being driven by Shri Sanjeev Kumar Sharma. Therefore, name of Respondent No. 1 is liable to be struck off and Shri Sanjeev Kumar Sharma be impleaded as the driver.
18. Respondent No. 2 has denied that the petitioner was traveling in the bus at the time of accident or the bus was being driven in a rash and negligent manner.
19. Rest of the contents of claim petition were denied and it was prayed that the claim petition of claimant be dismissed.
20. From the pleadings of the parties, following issues were framed: i. Whether petitioner Mohd. Sabeer had sustained injuries on his person in an accident which took place on the intervening night of 12.06.2009 - 13.06.2009 due to negligent driving of bus bearing registration no. UP25/T9664 being driven in a negligent manner by respondent no. 1 and owned by respondent no. 2. ...... OPP ii. In case, issue no. 1 is decided in favour of the petitioner, to what amount of compensation he is entitled to? ...... OPP iii. Relief.
21. On behalf of petitioner, seven witnesses were MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 4 of 23 examined.
22. First witness to enter in the witness box was Shri Rohit Chauhan, Assistant Manager, Medical Record Department of B.L.K. Memorial Hospital, Pusa Road, New Delhi as PW1. He exhibited following three documents:
1. Ex.PW1/1: Discharge Summary showing admission of petitioner in that hospital from 13.06.2009 to 25.06.2009. Petitioner was diagnosed as crush injury (R) leg and foot.
2. Ex.PW1/2: InPatient final bill for Rs. 1,12,262/.
3. Ex. PW1/3: Duplicate InPatient final bill for Rs. 1,82,628/.
23. This witness was not crossexamined.
24. Second witness examined by the petitioner was PW2, Shri Sharad, Executive MediAssist, EPA Pvt. Ltd., East of Kailash, New Delhi as PW2.
25. This witness deposed that claimant had sought reimbursement of Rs. 1,12,262/ but only Rs. 76,664/ were paid. He deposed that a sum of Rs. 35,598/ was not found admissible. This witness exhibited following two documents:
1. Ex.PW2/1: Reliance Health Wise Policy Schedule of Reliance General Insurance in the name of petitioner where Rs. 2,268/ was given as premium.
2. Ex.PW2/2: Settlement Advise by Medi Assist of Reliance General Insurance advising payment of Rs. 76,664/ as against Rs. 1,12,262/ and MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 5 of 23 rejecting Rs. 35,598/ as non admissible.
26. This witness was not crossexamined.
27. Third witness examined on behalf of petitioner was Shri Kapil Kaushik, Material Executive, Endo Light India Pvt. Ltd. as Ex. PW3. He deposed that cost of artificial limb is Rs. 2,60,000/ and its life is five to six years and it requires repairs after every six months or one year and cost of repair is Rs. 15,000/ to Rs. 20,000/ per repair.
28. This witness proved three documents which are as under:
1. Ex.PW3/1: Authorization letter in his favour.
2. Ex. PW3/2: Quotation for Endolite Transtibial System with Liner Socket.
29. This witness was not crossexamined.
30. Fourth witness is the petitioner himself who entered in the witness box as PW4 and stated similar facts in his evidence by way of affidavit as were already stated by him in his claim petition. He stated that only a sum of Rs. 35,598/ was not given to him by his insurance company as not admissible.
31. Additionally, he claimed that he had spent Rs. 22,052/ on purchase of medicines and he had spent Rs. 57,650/ in total on his treatment. He deposed that he spent Rs. 25,000/ on Conveyance, Rs. 20,000/ on Special Diet and Rs. 18,000/ on Attendance's Charges. He deposed that in future he will need artificial leg after every two to three years and it will require repairs MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 6 of 23 and after eight to ten years the whole artificial leg would require replacement. He deposed that by his Kabadi business, he was earning Rs. 1,67,141/ per annum but now he cannot lift weight and drive vehicles.
32. Petitioner exhibited following documents:
1. Ex.PW4/1: Reliance Health Wise Policy Schedule.
2. Ex. PW4/2: Payment details of Medi Assist Pvt. Ltd.
3. Ex. PW4/3: Treatment record of petitioner.
4. Ex. PW4/4: Receipts for purchase of medicines.
5. Ex. PW4/5: Quotation for Endolite Transtibial System with Liner Socket.
6. Ex. PW4/6: ITR for the assessment year, 200809 deposited on 17.03.2010.
7. Ex. PW4/7: PAN Card of petitioner.
33. In crossexamination, he deposed that earlier he was working as a scrap dealer but after accident he is not working. The travel ticket purchased by him on the date of accident was lost during his treatment after the accident. He came to know the name of driver as Shyam as he was being addressed by this name the conductor of the bus and he stated that even chargesheet is filed against Respondent No. 1.
34. He denied a suggestion that driver of the bus is not Shri Shyam but Shri Sanjeev Kumar Sharma. He denied that a Canter MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 7 of 23 was going ahead of the bus. He rather stated that a tempo was parked with its blinkers on, on the one side of the road. Suggestions contrary to his case were denied by him.
35. Fifth witness examined by the petitioner was Dr. Vineet Kumar Arora of DDU Hospital who proved disability certificate given to the petitioner as Ex. PY. As per this certificate, petitioner has suffered 70% permanent physical disability in relation to right lower limb being a case of Post Traumatic Below Knee Amputation up to 8 cm.
36. In crossexamination, the witness deposed that it is not possible to comment on the disability for the whole body on the basis of this disability certificate.
37. Sixth witness examined by the petitioner was Shri Reynold Wilson, Technician Medical Records of B.L. Kapoor Hospital who deposed that MLC of petitioner was not prepared in BLK Hospital and hospital authorities were informed that it is a case of MLC outside Delhi. He did not know in which hospital MLC was prepared and even deposed that it is not available in the records of his hospital.
38. This witness was not crossexamined.
39. Lastly, PW7 Shri Jagmohan Tyagi, Store Keeper, Pulmonic Multi Speciality Hospital, Ghaziabad was examined by the petitioner who produced the following document:
1. Ex. PW7/1: Admission record of petitioner in Pulmonic Multi Speciality Hospital on 13.06.2009.
40. He also proved as correct receipts already exhibited MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 8 of 23 as Ex. PW4/4. He also deposed that their hospital does not prepare MLC as theirs is a small hospital.
41. In crossexamination, he deposed that petitioner was discharged after two hours and he himself had not written the exhibited documents.
42. On behalf of Respondent No. 2, two witnesses were examined.
43. The first witness examined on behalf of Respondent No. 2 was conductor of the bus, Sh. Aviral Singh.
44. He stated in his evidence by way of affidavit that driver of the bus was one Sh. Sanjeev Kumar Sharma and not Sh. Sham Babu Awasthi/Respondent No. 1.
45. R2W1 deposed that the accident had taken place as a Canter going ahead of the bus had applied sudden brakes which had resulted in the accident. He also stated that after the driver Sh. Sanjeev Kumar Sharma recovered from injuries he informed Station Officer of P.S. Massoorie, Distt. Ghaziabad with respect to the accident.
46. In cross examination, he denied a suggestion that neither Sh. Sanjeev Sharma was the driver of the offending bus nor he was the conductor. He deposed that Sh. Sham Babu Awasthi, Respondent No. 1 is under suspension and Sh. Sanjeev Kumar Sharma has suffered leg injury and has not joined duty since then. He denied a suggestion that Respondent No.1 is under suspension due to this accident.
47. Second witness examined on behalf of Respondent MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 9 of 23 No. 2 is Sh. Shiv Kumar Saxena, Senior Clerk, Bareli Depot, UPSRTC who stated in his evidence by way of affidavit that in the intervening night of 12th and 13th June at about 1.45 a.m. Sh. Sanjeev Kumar Sharma was driving bus no. UP25T9664 from Bareli to Delhi and not Sh. Sham Babu Awasthi/Respondent No. 1.
48. In support of this, he relied on ArrivalDeparture register which was proved as Ex. R2W2/1.
49. In cross examination, he deposed that he is not a summoned witness but authorised to appear before this Tribunal. Authorisation letter in his favour was proved as Ex. R2W2/2. He denied a suggestion that Ex. R2W2/1 is a forged and fabricated or there is a cutting at point X of page 2 on that document. He deposed that Sh. Sham Babu Awasthi, Respondent No. 1 was engaged on contract basis and is no more in the employment of Respondent No.
2. He deposed that Respondent No. 2 has not informed the police that accident was not caused by Respondent No. 1 but by Sh. Sanjeev Kumar Sharma. He also deposed that Respondent No. 2 has not given any complaint to the police stating that the accident was result of negligence of Canter driver and not of the bus driver.
50. Arguments were addressed by Sh. R.K. Jain, learned Counsel for petitioner and Sh. Shahdab Khan, learned Counsel for Respondent No. 2.
51. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1
52. Burden of proving this issue is on the petitioner.
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53. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
54. This is sine qua non for getting the relief.
55. Petitioner himself is an eye witness to the accident. He has stated that he was a passenger in the bus bearing registration no. UP25T9664 which met with an accident in the intervening night of 12th June and 13th June, 09 when it hit a stationery tempo standing on left side of the road. He has deposed that the bus was being driven rashly and negligently.
56. On the other hand, case of Respondent No. 2 is that Respondent No. 1 was not the driver of the bus and the bus in question was being driven by one Sh. Sanjeev Kumar Sharma. They have also denied that the petitioner was travelling in the bus bearing no. UP25T9664. For this, they have examined two witnesses. One is the conductor and another is Senior Clerk of Respondent No. 2.
57. Perusal of evidence by way of affidavit of conductor of the bus shows that he has not deposed that petitioner was not a passenger in the bus at the time of accident. The conductor of the bus was the best witness to depose that petitioner was not a passenger in the bus when the accident took place. However, he did not say so. Presence of petitioner near the place of accident is corroborated by evidence of PW7, Store Keeper of Pulmonic Multi Specialty Hospital, who proved that petitioner was admitted in their hospital on 13.06.09. He proved payment of Rs. 5,300/ received by MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 11 of 23 the said hospital from the petitioner as well as receipt issued by the chemist for purchase of medicines which are Ex. PW4/4. He also proved as Ex. PW7/A, Admission Card of the petitioner in the hospital as per which he had left against medical advise. The admission of petitioner in the hospital at that particular time and date corroborates averment of the claimant that he was one of the passengers of the bus which met with the accident.
58. Respondent No. 2 has neither examined so called Sh. Sanjeev Kumar Sharma nor Respondent No. 1 to show that it was not Respondent No. 1 but it was Sh. Sanjeev Kumar Sharma who was driving the bus at the time of accident. When evidence of driver of offending bus is not recorded, respondents cannot argue that the said driver was not negligent in driving the bus which resulted in the accident.
59. Moreover, in Ex. R2W2/1 there is a cutting. Against bus no. 8977, bus no. 9664, which is the offending vehicle is added without there being any explanation for this cutting.
60. In this exhibited document, only cutting is with regard to offending vehicle and there is no other cutting in the entire list.
61. This also raises a suspicion that for some reasons best known to Respondent No. 2, they are trying to show that the driver of the bus was Sh. Sanjeev Kumar Sharma and not Respondent No. 1.
62. However, petitioner has placed on record certified copy of charge sheet as per which accused is Respondent No. 1 and MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 12 of 23 present petitioner is the injured and his name finds mentioned in the list of witnesses in the charge sheet.
63. Moreover, Respondent No. 2 has not filed any protest application before any senior police official stating therein that their driver was not at fault in causing the accident or the vehicle was not driven by Respondent No. 1 but by Sh. Sanjeev Kumar Sharma or that the petitioner was not a passenger in their bus when it met with an accident.
64. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society"
65. In the case of National Insurance Co. Ltd. v. Vijay MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 13 of 23 Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
66. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (Supra). On perusal of the award MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 14 of 23 of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in F.I.R No. 955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
67. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
68. For the reasons noted above, this issue is decided holding that the driver of offending bus was Respondent No. 1 and not Sh. Sanjeev Kumar Sharma and the accident took place due to MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 15 of 23 negligence of the driver and not due to application of sudden brakes by driver of Canter as alleged by Respondent No. 2. ISSUE NO. 2:
69. In the case of Raj Kumar v. Ajay Kumar & Anr. ACJ 2011 (Vol. I), following principles were laid down by the Hon'ble Supreme Court for determining compensation payable to road traffic accident victims:
(i) The compensation payable to the claimant who is a victim of road accident should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equatable manner.
(ii) Compensation payable in injury
cases is payable under two heads. They are
pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) (a) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future medical expenses. Nonpecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities (and /or loss of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).
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(iii) In routine personal injury cases
compensation is awarded only under heads (i),
(ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation is granted under any of the heads (ii) (b), (iii) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.
70. Petitioner had gone to Pulmonic Multi Specialty Hospital because this hospital was at a distance of 12 ½ km from the place where the accident took place.
71. However, considering the nature of injuries, petitioner thereafter went to AIIMS but due to paucity of bed he was given 'Regret Out Form' and referred to any other Govt. Hospital.
72. From AIIMS, petitioner went to Sir Ganga Ram Hospital whose Casualty Card notes that petitioner was a case of RTA on 12.06.09.
73. The petitioner was not treated at Sir Ganga Ram Hospital but was finally treated at B.L. Kapoor Memorial Hospital where he was diagnosed to be suffering from crush injury right leg and foot on 13.06.09 debridement and below knee amputation of right lower limb and on 16.06.09 stump closure and skin grafting was done.
74. Petitioner remained admitted in the hospital from 13.06.09 till 25.06.09.
75. He was advised daily wound dressing with normal MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 17 of 23 saline and it was noted that he will require secondary closure at a later age.
76. The impact of injury was such that petitioner has suffered permanent disability which as per Ex. PY is 70% in relation to right lower limb being a case of post traumatic below knee amputation up to 8 cm.
77. In the case of DTC v. Suraj Bhan MAC APP. No. 196/07 dated 29.01.10, the earlier judgment in the case of Oriental Insurance Company Ltd. v. Vijay Kumar Mittal (2008) ACJ 1300 was followed where in para 17 it was held as under: "17. From the afore noted judicial decisions, a trend which emerges is that between the years 19851990, the courts have been awarding about Rs. 3,00,000/ under the head 'Non Pecuniary Damages' for amputation of leg resulting in permanent disability of 50% and above".
78. Following the aforesaid judgment, non pecuniary compensation was enhanced from Rs. 1,00,000/ to Rs. 3,00,000/ under the following heads:
(i) Compensation for Pain and Suffering Rs. 1,00,000/.
(ii) Compensation for Loss of Amenities of Life Rs. 1,00,000/.
(iii) Compensation for disability and disfigurement Rs. 1,00,000/.
Total Rs. 3,00,000/.
79. Therefore, this petitioner is also granted a MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 18 of 23 compensation of Rs. 3,00,000/ on three heads named above.
80. Additionally, petitioner is granted a compensation of Rs. 10,000/ for Conveyance and Rs. 15,000/ for Special Diet.
81. It is well settled that a victim of an accident has to be compensated in terms of money even if gratuitous services are rendered by a family member.
82. In Delhi Transport Corporation and Anr. v. Lalita:
AIR 1981 Delhi 558, this Court held that there cannot be any deduction if domestic help is obtained from a family member. The High Court observed as under: "A wrong doer cannot take advantage of this 'domestic element'. If the mother renders service to her, instead of a nurse, it is right and just that she should recover compensation for the value of the services that the mother has rendered to her. Mother's services were necessitated by the wrong doing and the injured should be compensated for it. (Cunnigharn v. Harrison 3 All E.R. 463) The services of a wife and mother are worth more than those of a housekeeper because she is in constant attendance and does many more things than a housekeeper. (Regan v. Williamson (1976) 2 All E.R. 241)."
83. This judgment was again quoted with approval by the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP. No. 762/11 dated 04.07.12.
84. Considering the nature of injuries suffered by petitioner, it can be assumed that he would have needed the help of an attendant at least for a period of three months. Minimum wages payable at the time of accident to an unskilled workman were Rs.
MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 19 of 23 3,934/.
85. Therefore, petitioner would be entitled to a compensation of Rs. 11,802/ towards Attendant's Charges.
86. Petitioner is using artificial limb. PW3 has deposed that an artificial limb costs around Rs. 2,60,000/. Its life is 5 to 6 years. It requires repairs after every six months or one year and cost of repair is Rs. 50,000/ to Rs. 60,000/ per repair. The witness was not cross examined as none was present on behalf of Respondent No. 2 when this witness had deposed.
87. Petitioner has stated in his evidence by way of affidavit that artificial leg needs replacement after 8 to 10 years. Age of the petitioner at the time of accident was 38 years. The multiplier applicable will be of 16. Therefore, petitioner would need at least 2 artificial legs during his lifetime for which he is entitled to a compensation of Rs. 5,20,000/ and Rs. 50,000/ for its repair on lump sum basis.
88. Petitioner has spent a sum of Rs. 1,34,314/ on his treatment. The bill of B.L. Kapoor Memorial Hospital was for Rs. 1,12,262/. There are other bills worth Rs. 22,052/. Petitioner was reimbursed a sum of Rs. 76,664/ and balance Rs. 57,650/ was not reimbursed to him. He is entitled to receive this amount as compensation towards Cost of Treatment.
89. Petitioner is also entitled to cost of Mediclaim Policy which is Rs. 2,668/.
90. Last, question is of loss of wages in future.
91. Petitioner is a kabadi i.e. scrap dealer and claims MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 20 of 23 that he was earning Rs. 1,26,947/ p.a. in assessment year 200809. Income tax returns are sufficient indication of an income of a claimant. (Mohd. Nafis Ahmed v. Rajesh Kumar & Ors. MAC APP. No. 741/09 dated 24.04.12 decided by the Hon'ble High Court of Delhi).
92. Counsel for insurance company had argued that the job of scrap dealer is to continue to sit on the shop and employees do the physical work and owner has only to pay the money for purchase of scrap.
93. On the other hand, counsel for petitioner argued that petitioner will not be able to ride a vehicle on his own, he will not be able to carry weights and will not be able to run around which is required for the business of a scrap dealer.
94. In the opinion of this Tribunal, the claimant would suffer at least 30% loss of wages due to this accident which has resulted in permanent disability which has resulted in 70% of permanent physical disability in relation to right lower limb. Considering annual income of petitioner to be Rs. 1,26,947/, annual loss for petitioner due to accidental injuries will be Rs. 38,084/. Applying a multiplier of 16 as per judgment of Sarla Verma v. DTC 129 Scale 2009 (6), he will be entitled to a compensation of Rs. 6,09,345/ for Loss of Earning in Future.
95. Therefore, total compensation payable to the petitioner would be Rs. 15,76,465/ which will be paid with interest @ 7.5% p.a. (this is the rate of interest which is being awarded by Hon'ble High Court of Delhi at present) from the date of filing of this MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 21 of 23 claim petition which is 23.01.10 till its deposit in the Tribunal.
96. Let compensation be deposited by Respondents within 30 days from today under intimation to the petitioner by registered post. Compensation shall be deposited directly in State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c. Mohd. Sabeer @ Shabir Hussain.
97. Expenses incurred on medical treatment Rs. 57,650/, on conveyance Rs. 10,000/, on special diet Rs. 15,000/ and compensation awarded for Attendant's Charges Rs. 11,802/ totaling Rs. 94,452/ shall be released in favour of petitioner in his Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi. However, a sum of Rs. 3,00,000/ awarded for Pain and Suffering, Rs. 6,09,345/ awarded for loss of earnings in future, Charges for Mediclaim Policy of Rs. 2,668/, Charges for Artificial Limb Rs. 5,20,000/ and for its repair Rs. 50,000/ totaling Rs. 14,82,013/ shall be kept in 14 bank FDRs of equal amount for a period ranging from 1 to 14 years.
98. However, petitioner will be given monthly interest on these deposits in his Saving Bank Account.
99. All the original FDRs shall remain with the bank. Only copies thereof will be given to the petitioner. However, pass book will be given to the petitioner. No cheque book shall be issued to the petitioner.
100. No loan or advance will be given against these deposits.
101. FDRs shall not be prematurely encashed without MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 22 of 23 leave of this Tribunal.
102. Petitioner shall cooperate with the bank by providing requisite documents and by completing required formalities for opening Saving Bank and FDR Accounts.
103. Petitioner shall be at liberty to get their Saving Bank Account and FD Accounts transferred to any branch of SBI of their choice if so desired.
104. Copy of this order be given dasti to all the parties.
105. File be consigned to the Record Room.
Announced in the Open Court.
On the 08th day of February, 2013 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
MACT No. 114/12/10 Sh. Mohd. Sabeer @ Shabir Hussain Vs. Sh. Shyam Babu Avasthi & Anr. Page No. 23 of 23