Delhi District Court
Smt. Anjali Sobti vs Mr. Karamvir (Driver) on 7 May, 2012
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL
II, DWARKA COURTS, NEW DELHI
MACT NO. 199/11/06
IN THE MATTER OF :
1. Smt. Anjali Sobti
W/o Sh. Rajinder Sobti
Address (Local):
B504, Plot No. 12
Sector12, K.M. Apartments
Dwarka, New Delhi.
Permanent Address:
Village Jagdholi
District Yamuna Nagar
Haryana133103.
......Petitioner
Versus
1. Mr. Karamvir (Driver)
S/o Sh. Mahinder Singh
R/o Village Vamdoli
P.S. Kapashera
2. M/s. Mega Corporation Mega Ltd. (Owner)
Mega NSIC Complex
Maha Anand Mai Marg
PhaseIII, Delhi.
3. United India Insurance Company Ltd. (Insurer)
54, Janpath, Connaught Place
New Delhi.
.........Respondents
Anjali Sobti v. Karambir & Ors. Page 1 of 17
FILED ON : 28.11.2006
RESERVED ON : 26.04.2012
DECIDED ON : 07.05.2012
: J U D G M E N T :
1. This is a claim petition under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Respondent no. 1 is the driver, Respondent no. 2 is the owner and Respondent no. 3 is the insurer of the offending vehicle.
3. It is stated in the claim petition that on 19.06.2004 the petitioner was coming from Ramesh Nagar on a motorcycle bearing registration no. DL4SAE2875 to her parent's house in Dwarka.
4. It is stated that the motorcycle was being driven by her husband Sh. Rajender Sobti and the petitioner was a pillion rider.
5. It is stated that at about 8.45 p.m., when the petitioner reached near K.M. Apartments, Sector12 after crossing petrol pump a white car bearing registration no. DL01RX3065 being driven at a very fast speed and in a very rash and negligent manner came from the opposite side and with a great force hit against the motorcycle on which petitioner was the pillion rider.
6. It is stated that due to this impact, the petitioner and her husband alongwith their motorcycle fell down on the road. It is Anjali Sobti v. Karambir & Ors. Page 2 of 17 stated that petitioner was taken to Mata Chanan Devi Hospital in an unconscious condition and in comma.
7. It is stated that petitioner sustained injuries on her head, eye and face and all over her person. She was operated upon a number of times. Petitioner was maintained on ventilator for a number of days.
8. It is stated that although the chances of survival of the petitioner were only 5% but by miracle of god she survived but became permanently disabled.
9. It is stated that petitioner cannot walk and talk properly and her face has become disfigured. She is dependent upon others for her daily necessities and is bed ridden for more than one and a half year.
10. It is stated that petitioner was passing stool and urine on the bed. It is stated that petitioner has no chance of any further recovery and has suffered mental and physical agony.
11. It is stated in the claim petition that the petitioner has spent more than Rs. 4 lacs on her medical treatment during her stay in Mata Chanan Devi Hospital and was taken to her permanent residence in Jamna Nagar in a special ambulance in the company of a doctor and a nurse.
12. It is stated that the petitioner had engaged one Doctor Anjali Sobti v. Karambir & Ors. Page 3 of 17 Naresh Puri for her medical treatment at her residence and the said doctor used to visit twice a day for her treatment. Petitioner has stated that one nurse was also permanently employed by her throughout the day and night for about one year.
13. Petitioner has claimed a compensation of Rs. 50,000/ for the fee of the doctor who visited her at home and a sum of Rs. 18,000/ incurred on the nurses.
14. Petitioner has claimed a compensation of Rs. 80,000/ for medicines and other medical equipments during the period when she was bed ridden.
15. It is further stated by the petitioner that she was a graduate and was doing job of an assistant teacher in Saraswati Middle School, Jagdholi, Yamuna Nagar, Haryana where nearly two hundred students were studying. Petitioner has stated that she was earning a sum of Rs. 3,800/ per month from the school but she has lost her job because of the accident.
16. In these circumstances, petitioner has claimed a compensation of Rs. 25 lacs with interest @ 15% p.a., from the respondents.
17. Respondent no. 1 was proceeded exparte but written statement was filed by respondent no. 2 and 3.
18. Respondent no. 2 has stated in the written statement that Anjali Sobti v. Karambir & Ors. Page 4 of 17 the husband of petitioner was driving the vehicle in question in a rash manner and in violation of traffic rules.
19. It is stated that the motorcycle was not having head lights and was being driven at a high speed which resulted in the accident. It is stated that the driver of alleged offending vehicle was a well trained driver having a valid driving license and the alleged offending vehicle was insured with respondent no. 3.
20. Rest of the averments made in the claim petition were denied by respondent no. 2.
21. Respondent no. 3 stated in its written statement that in case it is found that the driver of alleged offending vehicle was not having a valid and effective driving license, in that event answering respondent will not be liable to pay the compensation to the petitioner.
22. It is also stated that the driver of motorcycle on which the petitioner was a pillion rider was himself negligent while driving his motorcycle and there was no negligence on the part of respondent no. 1. Therefore, it was prayed that claim petition is liable to be dismissed.
23. However, it was admitted that the alleged offending vehicle bearing registration no. DL1RX3065 was insured with the answering respondent vide policy bearing no. Anjali Sobti v. Karambir & Ors. Page 5 of 17 040100/31/03/02/00003905 which was valid from 09.09.03 to 08.09.04 in the name of M/s. Mega Corporation.
24. Rest of the averments made in the claim petition were denied.
25. From the pleadings of parties, following issues were framed:
1) Whether petitioner Anjali had sustained injuries on her person in an accident which took place on 19.06.04 due to the negligent driving of car bearing registration no. DL01RX3065 which was being driven in a negligent manner by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3? OPP
2) In case, issue no. 1 is decided in favour of the petitioner, to what amount of compensation he is entitled to and from whom? OPP
3) Relief.
26. Petitioner did not enter in the witness box in support of her claim petition.
27. Sh. Rajender Sobti, husband of the petitioner entered in the witness box as PW1. He stated similar facts in his evidence by way of affidavit as were already stated by the petitioner in her claim petition.
28. Certified copy of FIR No. 247/04, under Section 279/337 of IPC, P.S. Dwarka was exhibited as Ex.PW1/1, Anjali Sobti v. Karambir & Ors. Page 6 of 17 Chargesheet under Section 279/338 of IPC as Ex.PW1/2, site plan as Ex.PW1/3, Mechanical Inspection report of offending vehicle as Ex.PW1/4, mechanical inspection report of the motorcycle being driven by husband of petitioner as Ex.PW1/5, driving licence of respondent No. 1 as Ex.PW1/6, MLC of petitioner as Ex.PW1/7, MLC of husband of petitioner as Ex.PW1/8, seizure memo of motorcycle as Ex.PW1/9, certificate of Saraswati Middle School, Jagdhauli, Yamuna Nagar certifying that petitioner has worked in that school as Assistant Teacher from 2002 to May 2004 at a monthly salary of Rs. 38,00/ per month as Ex.PW1/10, experience certificate given by Saraswati Middle School as Ex.PW1/11, medical papers prescriptions and bills regarding treatment of petitioner as Ex.PW1/12, medical certificate given by Civil Surgeon, Yamuna Nagar, certifying that percentage of disability of petitioner is 70 % as Ex.PW1/13, discharge slip of Mata Chanan Devi Hospital where petitioner had remained admitted from 19.6.2004 to 22.7.2004 as Ex.PW1/14, election I card of petitioner as Ex.PW1/15, Degree granted by University of Delhi to the petitioner as Ex.PW1/16 and the Marksheet as Ex.PW1/17
29. In cross examination, PW1 stated that the headlights of his motorcycle were on at the time of accident. He stated that he was driving the motorcycle at a speed of 30 Kms. per hour. He stated Anjali Sobti v. Karambir & Ors. Page 7 of 17 that he has spent a sum of Rs. Four lacs on the treatment of his wife in Mata Chanan Devi Hospital, besides which he had incurred a sum of one to two lacs of Rupees on the treatment of his wife. He stated that even after discharge from the hospital, his wife remained on treatment as an OPD patient for a period of one year and even today her treatment is going on. He denied a suggestion that his wife has not suffered any loss of memory. Suggestions contrary to case of petitioner were denied.
30. PW2 examined on behalf of petitioner was one Sh. Waryam Singh, Manager of Saraswati Middle School, Jagdhauli, Yamuna Nagar, Haryana. He stated that the petitioner was working in that school as a Teacher from 10.4.2002 to 30.6.2004. He exhibited attendance register of the teachers working in the said school as Ex.PW2/A and certificates issued by Head Master of the school which were already exhibited as Ex.PW1/10&11 were also proved by him as he stated that he identified the signatures of Head Master Sh. Ranjeet Singh.
31. In cross examination he stated that in their school they are not maintaining any register of payment of salary to the employees. He stated that the salary used to be paid to the teachers in cash and they never obtained receipts of the salary given to their employees. He stated that their school was granted temporary Anjali Sobti v. Karambir & Ors. Page 8 of 17 registration by Education Department and from 2006 onwards their school was granted permanent registration.
32. PW3 examined on behalf of petitioner was Medical Record Clerk of Mata Chanan Devi Hospital who proved the entire medical treatment record of petitioner as Ex. PW3/A and proved the bill as Ex. PW3/B.
33. Last witness examined on behalf of petitioner was Dr. Deepan Jain. He deposed that on 31.08.05 he was posted as Medical Officer at M.L. General Hospital, Yamuna Nagar. He deposed that he was member of the Board constituted by Dr. Deepak Kamboj, Civil Surgeon, Yamuna Nagar for assessment of permanent disability of petitioner for the purposes of handicap pension only. He deposed that on examination, she was found to be suffering from right side hemiplegia and her percentage of permanent disability for the purposes of pension was assessed to be 70%. He proved medical certificate already exhibited as Ex. PW1/13 and proved his signatures at point X and the signatures of other doctors at point P and Q. He stated that the certificate is not valid for Medico Legal Cases.
34. In cross examination he clarified that the assessment of permanent disability in relation to court cases is made on a different criteria and assessment is made with regard to permanent disability vis a vis the whole body. He stated that he cannot give any Anjali Sobti v. Karambir & Ors. Page 9 of 17 assessment of permanent disability vis a vis the whole body on the basis of this medical certificate. He further deposed that while making the assessment of handicap for pension purpose they did not examined the medical report or ascertained how the injuries were caused. He did not know the mode or date of injuries in this case.
35. No witness was got examined on behalf of respondents.
36. Arguments were addressed by Sh. Harish Khanna, learned counsel for petitioner and Sh. R.P. Mathur, learned Counsel for insurance company.
37. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1
38. Burden of proving this issue is on the petitioner.
39. For succeeding in a claim petition under 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.
40. This is sine qua non for getting the relief.
41. The petitioner has stated in the claim petition that the offending vehicle was being driven at a very fast speed and in a rash and negligent manner and hit against the motorcycle driven by husband of petitioner as a result of which petitioner and her husband fell down on the road.
Anjali Sobti v. Karambir & Ors. Page 10 of 17
42. The driver of offending vehicle did not file any written statement to deny allegations of rash and negligent driving by him.
43. PW1, the husband of petitioner has repeated similar averments in the evidence by way of affidavit.
44. The evidence of petitioner has gone unrebutted.
45. The driver of offending vehicle did not enter in the witness box to prove his innocence.
46. Police has investigated in the matter and filed charge sheet under Section 279 and 338 of IPC against respondent no. 1. This is also prima facie suggestive of rash and negligent driving by respondent no. 1.
47. It is settled law that the test for proving negligence of the driver of offending vehicle for succeeding in a claim petition under M.V. Act is of preponderance of probabilities and not beyond all reasonable doubts.
48. Applying the principles of res ipsa locquitor this issue is therefore decided in favour of petitioner and against respondents. ISSUE NO. 2:
49. 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 Anjali Sobti v. Karambir & Ors. Page 11 of 17 a result of wrong done as far as money can do so, in a fair, reasonable and equatable manner.
50. 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).
51. 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) Anjali Sobti v. Karambir & Ors. Page 12 of 17 and loss of expectation of life.
52. Certified copy of MLC is on record as per which petitioner has suffered grievous injuries. Police after investigation in the matter has filed charge sheet under Section 279 and 338 of IPC.
53. Petitioner had remained admitted in the Hospital from 19.06.04 to 22.07.04. She was in ICCU for 24 days. She was on ventilator for six days. She underwent eight blood transfusions. Petitioner had suffered head injury followed by loss of consciousness, nasal bleeding and episode of vomiting. She had to undergo tracheotomy.
54. Since compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim of a motor accident. Nature of injury, the parts of body where the injuries were sustained, surgeries if any underwent by the victim, confinement in the Hospital and the duration of the treatment are normally considered by the Claims Tribunal for this purpose. (Oriental Insurance Company Ltd. v. A. Mohan & Ors. MAC APP. No. 602/11 dated 14.03.12).
55. Therefore, for Pain and Suffering, petitioner is granted a compensation of Rs. 50,000/.
56. Petitioner has given a sum of Rs. 91,240/ for her Anjali Sobti v. Karambir & Ors. Page 13 of 17 treatment in Mata Chanan Devi Hospital. The said bill is Ex. PW3/G. Besides this, petitioner has placed on record 19 cash memos of Mata Chanan Devi Hospital for payments made during her hospitalisation which are totaling Rs. 11,733/.
57. Petitioner has relied upon bills of chemists worth Rs. 50,020/ for medicines and treatment related purchases made by the petitioner from different chemists.
58. Resultantly, for Cost of Treatment and Cost of Medicines, petitioner is granted a compensation of Rs. 1,52,993/.
59. For Special Diet and Conveyance, petitioner is granted a sum of Rs. 10,000/ each i.e. Rs. 20,000/ in total.
60. Petitioner has stated that she was working as an assistant teacher in Saraswati Middle School, Jagdhauli, Yamuna Nagar at a salary of Rs. 3,800/ per month.
61. Petitioner has relied upon Ex. PW1/10 which is certificate dated 05.07.04 where the Manager of the school has certified that petitioner has worked in the said school from the year 2002 to May, 2004. Reliance is also placed on experience certificate Ex. PW1/11 given by the said school to the petitioner.
62. Petitioner had also summoned a witness from the said school and PW2 proved teacher's attendance register as Ex. PW2/A to show that petitioner was a teacher in that school. Anjali Sobti v. Karambir & Ors. Page 14 of 17
63. However, PW2 admitted that they are not maintaining any register of payment of salary given to the teachers and salary was given in cash for which no receipts were taken from the teachers.
64. Even otherwise, petitioner is a graduate which is evident from Ex. PW1/16 as well as Ex. PW1/17. As per minimum wages applicable on the date of accident, the wages of a graduate as on 19.06.04 were Rs. 3,654.90/ per month.
65. The Hon'ble High Court of Delhi in the case of Royal Sunderman Alliance Insurance Company Ltd. v. Master Manmeet Singh & Ors. which is MAC APP No. 590/11 dt. 30.01.12 has held that loss of dependency on account of gratuitous services rendered by a housewife shall be minimum salary of a graduate where she is a graduate and there will be an addition of 25% in the assumed income where the age of the home maker is upto 40%.
66. Petitioner has suffered 70% disability as a result of this accident which is evident from Ex. PW1/13 as well as from the evidence of PW4.
67. In the evidence of PW4 it has come on record that percentage of permanent disability for the purposes of the pension was assessed to be 70%.
68. Although this witness has stated that the assessment of permanent disability in relation to court cases is made on a different Anjali Sobti v. Karambir & Ors. Page 15 of 17 criteria and the assessment is made in regard to permanent disability vis a vis the whole body but no distinction can be drawn between disability for the purposes of pension or for the purposes of determining compensation payable to the victim of road accident under provisions of Motor Vehicles Act.
69. Therefore, for determining compensation towards loss of earnings in future, reliance can be placed on Ex. PW1/13.
70. From the certificates issued by the school where the petitioner was employed, it is clear that she had to leave the job soon after this accident.
71. As noted above, even independent of employment of petitioner in Saraswati Middle School compensation can still be granted in favour of petitioner for loss of gratuitous services by relying upon the judgment of Hon'ble High Court in the case of Royal Sunderam noted above.
72. As petitioner has suffered 70% disability loss of gratuitous services per month to the family would be Rs. 3622/ x 70 / 100 = Rs. 2535/. Multiplier applicable would be of 15 because the age of petitioner was less than 40 years on the date of accident as her date of birth is 10.03.1965.
73. Therefore, petitioner would be entitled to a compensation of Rs. 4,56,300/ for Loss of Earnings in Future. Anjali Sobti v. Karambir & Ors. Page 16 of 17
74. There is no evidence of any payment given to Dr. Naresh Puri or to the nurse. Therefore, no compensation can be given for fees of said doctor or for expenses of the nurse. ISSUE NO.3: RELIEF
75. Therefore, the petitioner is awarded a total compensation of Rs. 6,79,293/ with interest @ 7.5% p.a. from the date of filing of this claim petition which is 28.11.2006 till its deposit.
76. Insurance company has not proved any statutory defence available to it under M.V. Act. Therefore, the entire compensation would be payable by insurance company within 30 days from today under intimation to the petitioner by registered post.
77. Copy of award be given dasti to all the parties.
78. File be consigned to record room.
Announced in the Open Court.
On the 07th day of May, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
Anjali Sobti v. Karambir & Ors. Page 17 of 17