Delhi District Court
Sh. Moti Lal vs Sh. Neeraj Kumar on 15 September, 2018
MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5618/16(Old MAC Petition No. 177/15)
Sh. Moti Lal
Through his next friend/wife
Ms. Nisha Devi,
R/o H.No. 132A, Gali No. 4,
20 Foot Road, Part 2nd
Mukund Pur, Delhi.
..........Claimant/Petitioner
VERSUS
1. Sh. Neeraj Kumar
S/o Sh. Ram Singh
R/o Village Baregaye,
Distt. Etha, U.P,
PS Pilwa, U.P.
(Driver)
2. Sh. Santosh
S/o Sh Ram Gopal
R/o H.No. B141, 28 Foot Road,
West Karawal Nagar, Delhi.
(Regd Owner)
3. ICICI Lombard General Insurance Co Ltd.
Having its office at 120, Gali No. 38,
West Karawal Nagar, New Delhi.
(Insurer)
............Respondents
Date of Institution : 17.03.2015
Date of Arguments : 31.08.2018
Date of Award : 15.09.2018
APPEARANCES: Sh. R.K Jain, Adv for petitioner.
None for respondents no. 1 & 2.
Sh. S.K Tyagi Adv for respondent no.3.
Moti Lal Vs. Neeraj Kumar & Ors. Page 1 of 20
MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018
Petition under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD
1. The petitioner is seeking compensation in the wake of Detailed Accident Report(DAR) filed by police corresponding to the investigation carried out in case FIR No. 68/14 U/s 279/338 IPC registered at PS Jahangir Puri with regard to injuries sustained by him in Motor Vehicular Accident which occurred on 27.01.2014 at about 6.15 am at Mukundpur Red Light, Outer Ring Road, Jahangir Puri, Delhi, involving Eicher Canter bearing registration no. DL1LR1848 (alleged offending vehicle) being driven by respondent no. 1 in rash and negligent manner. Detailed Accident Report(hereinafter called DAR) filed by police, was treated as claim petition under Section 166(4) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act').
2. According to DAR, on 27.01.2014, the petitioner was going from his residence to Azadpur Mandi by his two wheeler scooter no. DL4SAP2137 at very normal speed. Sh. Dharamvir (brother of injured) was also following him on cycle rickshaw. At about 6:15 am, when they reached at Mukundpur Chowk, Azadpur, Delhi, they both stopped their respective vehicles due to red light signal. When the red signal turned green, the petitioner/injured was in the process of crossing the Mukundpur Chown then in the meantime, one Eicher Canter bearing registration no. DL1LR1848 which was being driven by its driver Sh. Neeraj Kumar/R1 at very high speed and in rash and negligent manner, came from Burari side and jumped the red signal and hit its front right portion/bumper to the left side portion of two wheeler scooter no. DL4SAP 2137 with great force and dragged him for considerable distance. As a result thereof, he sustained serious/grievous injuries all over his body. He was removed to BJRM Hospital, Jahangir Puri, Delhi, where he was medically examined. FIR No. 68/14 was registered at PS. Jahangir Puri with regard to accident in question. The said Eicher Canter vehicle was found to be owned by respondent no. 2/registered owner and it was found to be insured with ICICI Moti Lal Vs. Neeraj Kumar & Ors. Page 2 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 Lombard General Insurance Co Ltd/respondent no. 3 during the period in question.
3. The respondents no. 1 & 2 i.e. driver and registered owner although put their appearance in the Court on 17.03.15 at the time of filing of DAR, however, they failed to file their WS despite grant of opportunity. Ultimately, their defence was struck off vide order dated 25.05.15 pased by my Ld. Predecessor.
4. Respondent no. 3/insurance company has filed its legal offer, whereby it offered to pay a sum of Rs. 48,172/ as compensation towards full and final satisfaction for the claim raised by petitioner for the injuries sustained by him. However, the said offer was not acceptable to the petitioner. It has admitted that vehicle bearing no. DL1LR1848 was insured with it in the name of R2, vide Policy No. 3001/85558780/00/000 having validity from 30.11.13 to 29.11.14.
5. From pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 25.05.2015:
1. Whether the injured Moti Lal suffered injuries in road traffic accident on 27.01.14 at about 6:15 am at Mukundpur Red Light, Outer Ring Road, Jahangir Puri, Delhi, within the jurisdiction of PS. Jahangir Puri, due to rashness and negligence on the part of Mr. Neeraj Kumar who was driving truck bearing registration no. DL1RL1848, owned by Mr. Santosh and insured with ICICI Lombard General Insurance Co. ? OPP.
2. Whether the injured is entitled to any compensation if so to what amount and from whom?
OPP.
3. Relief.
Moti Lal Vs. Neeraj Kumar & Ors. Page 3 of 20MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018
6. It is relevant to mention here that an application u/o. 32 r/w Section 151 CPC has been moved on behalf of the petitioner for appointing wife of the injured as next friend as he has suffered permanent mental disability and his memory has been greatly hampered and is unable to remember his memories and the same was allowed vide order dated 15.05.2017.
7. In support of his claim, the petitioner has examined five witnesses i.e. PW1 Sh. Dharamvir, PW2 Ms. Nisha Devi(Next friend/wife of injured), PW3 Ms. Renu, Record Clerk, LNJP Hospital, New Delhi, PW4 Sh. K.D. Sharma, Record Clerk, Maharaja Agarsen Hospital, Delhi and PW5 Dr. (Ms.) Ramandeep Pattnayak, Associate Professor, Psychiatry and NDDTC, AIIMS, New Delhi. PE was closed on 24.11.17 through his counsel. On the other hand, no evidence has been adduced by either of the respondents. RE of insurance company was closed on 24.11.17 through its counsel.
8. I have already heard the arguments addressed by ld counsels for the parties. I have also gone through the record. Both the sides were directed to submit their respective submissions in Form IV B vide order dated 31.08.2018 but they have not submitted the same on record till date. My findings on the issues are as under: ISSUE NO. 1.
9. For the purpose of this issue, the testimonies of PW1 & PW2 are relevant. PW1 Sh. Dharamvir (alleged eyewitness) has deposed in his evidence by way of affidavit(Ex. PW1/A) that on 27.01.2014, his brother/petitioner Moti Lal was going on his scooter no. DL4SAP2137 at very normal speed and he was following him on cycle rickshaw. They were proceeding from their residence at Mukundpur towards Azadpur Mandi via Outer Ring Road to purchase vegetables. At about 6:15 am, when they reached at Mukundpur Chowk, they both stopped their vehicle due to red signal. When the red signal turned green, they both started crossing Moti Lal Vs. Neeraj Kumar & Ors. Page 4 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 Mukundpur Chowk. In the meantime, one Eicher Canter bearing registration no. DL1LR1848 which was being driven by its driver Sh. Neeraj Kumar/R1 at very high speed and in rash and negligent manner, came from Burari side and jumped the red signal and violently hit its front right portion/bumper against the left side portion of two wheeler scooter no. DL4SAP2137 of his brother/injured Moti Lal with great force and also dragged him and his two wheeler scooter for about 30 steps. As a result thereof, his brother Sh. Moti Lal sustained serious/grievous injuries all over his body. The aforesaid two wheeler scooter of his brother was also badly damaged. He shouted and managed to stop the aforesaid offending Eicher Canter and caught hold of its driver Sh. Neeraj Kumar/Respondent No. 1. He further deposed that he had also informed PCR Van standing at Mukundpur Chowk. He alongwith PCR officials took the injured to BJRM Hospital, wherefrom injured was referred to LNJP Hospital and he got his brother/injured admitted in LNJP Hospital. Police reached at LNJP Hospital and recorded his statement and FIR against Sh. Neeraj Kumar/Respondent No. 1 was registered at his instance. He categorically deposed that the accident took place solely and entirely due to rash and negligent driving of driver Sh. Neeraj Kumar/Respondent No. 1. During his crossexamination on behalf of respondent no. 3, he admitted that there was construction work going on at Bhalaswa Chowk, Mukundpur and Burari Chowk since last three years. He denied the suggestion that due to construction work, the traffic signals were not working. He deposed that the construction work was going on since two and half years. He denied the suggestion that there was barricade on the crossing of Mukundpur Chowk due to construction work of fly over. He admitted that there was police Gypsy at the spot. He was stationed at the red light signal when his brother came. He deposed that there was no construction work going on both sides of the road. He further deposed that he had seen the offending vehicle when it hit his brother. He had not seen the offending vehicle before the accident. He volunteered that the offending truck suddenly came after jumping the red signal and hit the scooter of his brother Moti Lal. His statement was recorded Moti Lal Vs. Neeraj Kumar & Ors. Page 5 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 in LNJP Hospital. He denied the suggestion that he was not present at the spot at the time of accident. He further denied the suggestion that there was barricade at the red light of Mukundpur Chowk and no traffic was passing through directly from Mukundpur to Azadpur side. Respondents no. 1 & 2 did not crossexamine this witness despite grant of opportunity.
10. The testimony of PW1 has been duly corroborated by the testimony of PW2 Ms. Nisha Devi, who is wife of injured/petitioner. The said witness in her affidavit in evidence (Ex. PW2/A) has deposed on identical lines and narrated the same sequence of facts leading to the accident as averred in the DAR petition. She has relied upon following documents: S.No. Description of documents Remarks
1. Original Discahrge Slips and OPD Ex. PW2/1(colly) Cards
2. Original medical bills Ex. PW2/2(colly)
3. Seven further original medical bills Ex. PW2/3(colly)
4. DL of her husband/injured Sh. Moti Ex. PW2/4 Lal
5. Original Disability Certificate Ex. PW2/5
10. During her crossexamination on behalf of respondent no. 3, she admitted that whatever she had mentioned in para no. 2 of her affidavit, was hearsay. Respondents no. 1 & 2 did not crossexamine this witness despite grant of opportunity.
11. The careful perusal of testimony of PW1 would go to show that the respondent no. 3 was not able to impeach his testimony through litmus test of crossexamination. The said witness is found to have successfully withstood the crossexamination and nothing could be elicited during his cross examination from the side of insurance company so as to discredit his testimony made on Oath. Moreover, the respondents have not led any Moti Lal Vs. Neeraj Kumar & Ors. Page 6 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 evidence whatsoever in order to rebut the testimony of PW1 during the course of inquiry. Hence, there is no reason to disbelieve the testimony of said witness.
12. It is pertinent to note that the respondent no.1/driver of aforesaid Car, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he preferred not to enter into the witness box and to stay away from the proceedings during the course of inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question had occurred due to rash and negligent driving of Eicher Canter No. DL1LR1848 by him.
13. Moreover, FIR No. 68/14(supra)(which is part of DAR) which is also shown to have been registered on the statement of complainant Sh. Dharambir, recites the same sequence of facts which led to the accident in question, as deposed by PW1 during the course of inquiry. Copy of said FIR would show that same was registered on 27.01.2014 i.e. on the date of accident itself. Thus, FIR was registered promptly and without there being any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of Eicher Canter bearing no. DL1LR1848 at the instance of petitioner herein.
14. Not only this, the respondent no. 1 namely Sh. Neeraj Kumar (accused in State case) has been charge sheeted for offences punishable U/s 279/337 IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending Eicher Canter bearing no. DL1LR1848 by him. Same would also point out towards rash and negligent driving of aforesaid Canter No. DL1LR1848 by respondent no. 1.
Moti Lal Vs. Neeraj Kumar & Ors. Page 7 of 20MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018
15. Apart from above, copy of MLC (which is part of DAR) of injured prepared at BJRM Hospital, Rohini, Delhi, shows that he had been removed to said hospital on 27.01.2014 at 6.40 AM with alleged history of RTA. On his local examination, he was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.
16. Not only this, copy of mechanical inspection report dated 28.01.2014 (which is part of DAR) of Eicher Canter Tempo No. DL1LR1848, would show that there were fresh damages i.e. its front bumper right side corner was damaged; its front right side indicator and reflector light was damaged and its front body right side corner was slightly dented. Likewise, copy of mechanical inspection report dated 28.01.14 of Scooter No. DL4SAP 2137 of victim, would show that its front left side body and indicator light was damaged; its front wheel mudguard was damaged; its headlight and headlight cover were damaged; its speedo meter bracket was damaged; its front diggy was damaged from left side; its right side body was scratched and damaged and its right front indicator light was damaged. Said reports, which have gone unchallenged and unrebutted from the side of respondents, also corroborate the ocular testimony of PW1 Sh. Dharambir to the aforesaid extent. Moreover, the offending Eicher Canter Tempo is shown to have been seized from the place of accident. This fact gets strengthened from the copy of seizure memo dated 27.01.14 (date of accident being 27.01.14)(which is also part of DAR).
17. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of pre ponderence of probabilities that he had sustained grievous injuries in road accident which took place on 27.01.2014 at about 6.15 am at Mukundpur Red Light, Outer Ring Road, Jahangir Puri, Delhi, due to rash and negligent driving of Eicher Canter Tempo bearing no. DL1LR1848 by the Moti Lal Vs. Neeraj Kumar & Ors. Page 8 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 respondent no. 1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 2.
18. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
MEDICAL EXPENSES
19. PW2 Smt. Nisha Devi i.e. wife of petitioner/injured, has deposed in her evidence by way of affidavit(Ex. PW2/A) that after the accident, the petitioner/injured was taken to BJRM Hospital, Jahangir Puri, Delhi, from where he was shifted to LNJP Hospital, Delhi, where he remained admitted from 27.01.14 to 03.02.14. Thereafter, he took treatment as OPD Patient from LNJP Hospital, G.B. Pant Hospital and from the clinic of Dr. Anoop Kohli of Apollo Hospital till 22.02.14. On 22.02.14, he was got admitted in Maharaja Agarsen Hospital, wherefrom, he was discharged on 26.02.14. She further deposed that injured had suffered blunt trauma abdomen with haemoperitoneum with shattered spleen with acute SAH left frontal with extra axial bleed left temporoparietal region and serious head injury with bilateral cerebral convexity subdural collection. She also deposed that exploratory laprotomy with splenectomy with appendicectomy was done and spleen was removed. She also referred to his treatment record wherein it is recorded that calcified granuloma left posterior parietal lobe seen with no perilesional edema, fracture right parieto and occipital obne seen. During her cross examination on behalf of respondent no.3, she deposed that her husband was calling her by way of gesture and also calls his children by his name and sometime by gesture. She further deposed that her husband was unable to go outside alone and she sent her children alongwith him if he wishes to go Moti Lal Vs. Neeraj Kumar & Ors. Page 9 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 outside home. She further deposed that sometimes injured became aggressive and started quarreling with persons going on road when he goes alone on road. She deposed that injured also informed them about the natural calls and they had to accompany and assist him till door of bathroom in attending the natural call. She denied the suggestion that the contents of para no. 6 of her affidavit regarding condition of her husband, was false. She admitted that she had not filed any document regarding spending of Rs. 25,000/ on medical treatment except the medical bills filed by her on judicial record. Respondents no. 1 & 2 did not crossexamine this witness despite grant of opportunity.
20. It is quite evident that the respondents have not disputed the authenticity and genuineness of the medical bills filed by the petitioner/injured on record during the course of inquiry. Moreover, the respondents have failed to lead any evidence in rebuttal in order to create any doubt on the authenticity of the medical bills of the injured as available on record. The wife/next friend of injured stated to have spent more than Rs. 25,000/ on his medical treatment. However, she has filed original medical bills total amounting to Rs. 22,823/. Accordingly, a sum of Rs. 22,823/ is awarded to the petitioner under this head.
LOSS OF INCOME
21. PW2 Smt. Nisha Devi has categorically deposed in her evidence by way of affidavit(Ex PW2/A) that petitioner/injured prior to the accident was working as vegetable seller and he was earning Rs. 15,000/ per month. She further deposed that injured is unable to do any work due to the injuries and permanent disability suffered by him in the accident. During her cross examination on behalf of respondent no. 3, she deposed that her husband was not an income tax payee. She admitted that she had not filed any documentary proof regarding earning of Rs. 15,000/ per month by her husband. She denied the suggestion that her husband was unable to do any work due to the Moti Lal Vs. Neeraj Kumar & Ors. Page 10 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 injuries and permanent disability suffered by him. She further denied the suggestion that her husband had not suffered any loss of income due to said accident. She denied the suggestion that her husband was still working. Respondents no. 1 & 2 did not crossexamine this witness despite grant of opportunity.
22. PW3 Ms. Renu, Record Clerk, LNJP Hospital has produced treatment record of patient Moti Lal. She deposed that said patient was admitted in their hospital on 27.01.14 and was discharged on 03.02.14. She exhibited his treatment record as Ex. PW3/A(colly). During her cross examination on behalf of respondent no. 3, she admitted that the documents brought by her, were not prepared in her presence. She further deposed that the doctors who had treated the patient, were still present in the hospital. She also deposed that she had no personal knowledge of the present case.
23. PW4 Sh. K.D. Sharma, Record Clerk, Maharaja Agarsen Hospital, Punjabi Bagh, Delhi has produced the treatment record of patient Moti Lal. He deposed that said patient was admitted in their hospital on 22.02.14 and was discharged on 26.02.14. He exhibited his treatment record as Ex. PW4/A(colly). During his crossexamination on behalf of respondent no. 3, he admitted that the documents brought by him, were not prepared in his presence. He further deposed that the doctors who had treated the patient, were still present in the hospital. He also deposed that he had no personal knowledge of the present case.
24. The discharge slip (which is part of Ex. PW2/1) of injured/claimant of LNJP Hospital, would show that he had sustained blunt trauma abdomen with haemoperitoneum with shattered spleen with acute SAH left frontal with extra axial bleed left temporoparietal region. Said treatment record would further show that exploratory laprotomy with splenectomy with appendicectomy was done on 27.01.14. The discharge summary (which is part Moti Lal Vs. Neeraj Kumar & Ors. Page 11 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 of Ex. PW2/1) of injured/claimant of Maharaja Agarsen Hospital, would show that he had sustained head injury with bilateral cerebral convexity subdural collection. The said treatment record would also reveal that injured was firstly admitted in LNJP Hospital on 27.01.14 till 03.02.14. He also admitted in Maharaja Agarsen Hospital on 22.02.14 and was discharged on 26.02.14. Same shows that his treatment continued for considerable period. Keeping in view the nature of injuries including mental disability to the extent of more than 40% and in view of the medical treatment record filed by claimant, it is presumed that he would not have been able to work at all atleast for a period of one year or so.
25. During the course of arguments, counsel for injured fairly conceded that for want of any cogent evidence with regard to monthly income of injured/petitioner, his income has to be assessed as per Minimum Wages Act applicable during the relevant period. The petitioner has not filed any document in respect to his educational qualification. In these circumstances, the minimum wages of an unskilled worker under Minimum Wages Act during the period in question, has to be taken into consideration. The minimum wages of an unskilled worker were Rs. 8086/per month as on the date of accident which is 27.01.2014. Thus, a sum of Rs. 97,032/ (Rs. 8086/ x 12) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
26. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the 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. For Moti Lal Vs. Neeraj Kumar & Ors. Page 12 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
27. PW2 Smt. Nisha Devi, wife/next friend of injured has deposed in her evidence by way of affidavit(Ex PW2/A) that injured had sustained blunt trauma abdomen with haemoperitoneum with shattered spleen with acute SAH left frontal with extra axial bleed left temporoparietal region and serious head injury with bilateral cerebral convexity subdural collection. She also deposed that exploratory laprotomy with splenectomy with appendicectomy was done and spleen was removed. She also referred to his treatment record wherein it is recorded that calcified granuloma left posterior parietal lobe seen with no perilesional edema, fracture right parieto and occipital obne seen. Injured has sustained permanent mental disability to the extent of more than 40%. Apart from the fact that the relevant portion of her testimony in this regard, has gone unchallanged and unrebutted from the side of respondents, her ocular testimony is duly corroborated by the ocular testimonies of PW3 & PW4 and by his medical treatment record as well as Disability Certificate (Ex. PW2/5) filed on record. Thus, injured would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs. 1,50,000/ towards pain and sufferings to the petitioner. (Reliance placed on ""IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.20158 by Hon'ble Delhi High Court).
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
28. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered blunt trauma abdomen with haemoperitoneum with shattered spleen with acute SAH left frontal with extra Moti Lal Vs. Neeraj Kumar & Ors. Page 13 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 axial bleed left temporoparietal region and serious head injury with bilateral cerebral convexity subdural collection. Exploratory laprotomy with splenectomy with appendicectomy was done and spleen was removed. His treatment record would further show that calcified granuloma left posterior parietal lobe seen with no perilesional edema, fracture right parieto and occipital obne seen. He has also sustained permanent mental disability to the extent of more than 40%, which is duly established from the Disability Certificate (Ex. PW2/5) issued by Department of Psychiatry, AIIMS as also from the ocular testimony of PW5. His treatment continued for more considerable period. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 1,50,000/ towards loss of general amenities and enjoyment of life to the petitioner. (Reliance placed on ""IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.20158 by Hon'ble Delhi High Court).
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
29. Although, PW2 has deposed in her evidence by way of affidavit (Ex. PW2/A) that she had spent Rs. 20,000/each on conveyance and special diet of injured and Rs. 24,000/ as attendant charges for injured but she has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that injured had sustained blunt trauma abdomen with haemoperitoneum with shattered spleen with acute SAH left frontal with extra axial bleed left temporoparietal region and serious head injury with bilateral cerebral convexity subdural collection. He is shown to have sustained permanent mental disability of more than 40% . Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the Moti Lal Vs. Neeraj Kumar & Ors. Page 14 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 10,000/ for conveyance charges and a sum of Rs. 15,000/ each for special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
30. As already stated above, the petitioner is shown to have sustained more than 40% of mental disability. Same is quite evident from Disability Certificate dated 18.11.2016 (Ex. PW2/5) of Medical Board of AIIMS, New Delhi. The wife/next friend(PW2) of petitioner has also testified in this regard while examining herself during the course of inquiry. She has also deposed that her husband was calling her by way of gesture and also calls his children by his name and sometime by gesture. She further deposed that her husband was unable to go outside alone and she sent her children alongwith him if he wishes to go outside home. She further deposed that sometimes injured became aggressive and started quarreling with persons going on road when he goes alone on road. She deposed that injured also informed them about the natural calls and they had to accompany and assist him till door of bathroom in attending the natural call. She has not been crossexamined by the respondents on these aspects.
31. As per the testimony of PW5 Dr.(Ms.) Ramandeep Pattnayak, Professor Psychiatry, who was one of the members of Medical Board constituted at AIIMS, the petitioner was found to have suffered more than 40% mental disability. She further explained that as per calculation chart (Ex. PW5/1) brought by her, the said mental disability ranges from 71% to 90% and same was permanent in nature and there was no likelihood of any improvement in his condition in future and thus, his reassessment was not Moti Lal Vs. Neeraj Kumar & Ors. Page 15 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 recommendable. She further deposed that with such kind of permanent mental disability, injured Moti Lal would not be able to run any kind of business activity even small business of selling vegetables or grocery items etc as his case was that of cognitive dysfunctions including memory impairment and that is why, he would not be able to do any kind of avocation independently without help of any other person. Nothing material could be elicited during crossexamination of said witness. Respondents no. 1 & 2 did not crossexamine this witness despite grant of opportunity.
32. In view of the ocular testimony of PW5 and the Disability Certificate (Ex. PW2/5) and calculation sheet (Ex. PW5/1), I am of the view that it would not be possible for injured to carry on any kind of avocation without help of any other person as he is suffering from memory loss and his mental disability is shown to be ranging between 71% to 90%. The activeness of mind is required in order to carry out any kind of avocation. Hence, his functional disability is taken as 75% with regard to whole body.
33. In copy of Driving Licence (Ex. PW2/4) of petitioner, his date of birth is mentioned as 16.12.1970. The date of accident is 27.01.2014. In view of said document, his age was about 43 years as on the date of accident. Hence, the appropriate multiplier would be 14 in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
34. The notional monthly income of petitioner has been taken as Rs. 8086/ per month as discussed above. Thus, the loss of monthly future income would be Rs. 6064.50 paise (Rs. 8086/ x 75/100 ). The total loss of future income would be Rs. 12,73,545/ (Rs. 6064.50 x 125/100 x 12 x 14). Thus, a sum of Rs. 12,73,545/ is awarded in favour of petitioner under this head. (Reliance placed on decisions of Hon'ble Delhi High Court in Moti Lal Vs. Neeraj Kumar & Ors. Page 16 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 "National Insurance Co. Ltd. Vs. Hari Om Const. & Ors.", MAC APP No. 464/2011 decided on 03.11.17 and "ICICI Lombard General Insurance Company Limited Vs. Mahesh Kumar & Ors.", MAC APP No. 843/2011, decided on 03.11.17).
LOSS OF EXPECTANCY OF LIFE
35. Counsel for petitioner/injured vehemently argued that the life expentancy of injured has been reduced on account of severe injury sustained by him due to the accident in question. For this purpose, he referred to ocular testimonies of PW3 to PW5 as also the medical treatment record of claimant brought on record. He therefore urged that appropriate amount should also be awarded to him under this head. Per contra, counsel for insurance company argued that no amount should be awarded under this head as the petitioner has failed to lead any cogent evidence in this regard.
36. After considering the rival submissions made on behalf of both the sides, I find myself in agreement with the contentions raised on behalf of claimant. The medical condition of injured has already been discussed in detail in the preceding paras. As already discussed above, PW5 Dr. Ramandeep Pattnayak has categorically deposed that injured had suffered mental disability in the range of 71% to 90% and same was permanent in nature and there was no likelihood of any improvement in his condition in future. Thus, the expectancy of claimant has definitely been reduced/shortened. Hence, I hereby award notional amount of Rs. 1,00,000/ under this head. [Reliance placed on decision of Hon'ble Delhi High Court in the case titled as "
Pritam Singh Vs. Oriental Insurance Co. Ltd. & Ors.", II(2016) ACC, 747(Delhi)].
Thus, t he total compensation is assessed as under:
1. Medical Expenses Rs. 22,823/
2. Loss of income Rs. 97,032/
3. Pain and suffering Rs. 1,50,000/ Moti Lal Vs. Neeraj Kumar & Ors. Page 17 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018
4. Loss of general amenities and Rs. 1,50,000/ enjoyment of life
5. Conveyance, special diet and Rs. 40,000/ attendant charges
6. Loss of future income Rs. 12,73,545/
7. Loss of expectancy of life Rs. 1,00,000/ Total Rs. 18,33,400/ Rounded off to Rs. 18,33,500/
37. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 3/insurance company did not adduce any evidence since it had no statutory defence. However, counsel for insurance company submits that there was contributory negligence on the part of injured as he was crossing the road, where there was no zebra crossing. There is no substance in the said argument for the simple reason that no such plea is raised by insurance company in its WS. Moreover, there is no iota of evidence available on record to substantiate this plea. Even otherwise, there is nothing on record that there was any kind of negligence on the part of injured Moti Lal in the occurrence of accident. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
38. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 18,33,500/ (including interim award amount if any) alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 17.03.2015 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd.
Moti Lal Vs. Neeraj Kumar & Ors. Page 18 of 20MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
39. Statement of wife/next friend of petitioner/injured in terms of Clause 27 MCTAP was recorded on 31.08.2018. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the award amount, a sum of Rs. 2,00,000/ (Rs Two Lacs only) shall be immediately released to the petitioner through his saving bank account no. 90222210019764 with Syndicate Bank, A257, Derawal Nagar, Azadpur, Delhi and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 25,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
40. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimant/petitioner. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimant/petitioner.
(ii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
(iii) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(iv) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victim.
(v) Half yearly statement of account be filed by the Bank before the Tribunal.
41. During the course of hearing final arguments, wife/next friend of claimant was examined in order to ascertain as to whether claimant was Moti Lal Vs. Neeraj Kumar & Ors. Page 19 of 20 MACP No. 5618/16 (Old No. 177/15); FIR No.68/14; PS Jahangir Puri DOD: 15.09.2018 entitled to exemption from deduction of TDS or not. She made statement on oath that claimant was entitled to exemption from deduction of TDS and also furnished Form No. 15G on record.
42. Respondent no. 3, being insurer of offending vehicle is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the amount of Rs. 2,00,000/ (Rs. Two Lacs only) in the aforesaid saving bank account of petitioner, on completing necessary formalities as per rules. He is further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioner. Copy of this award alongwith original Form no. 15G of Income Tax Act furnished by claimant through his wife/next friend (after retaining copy thereof on record) be given to counsel for insurance company for compliance. Copy of this award alongwith one photograph, specimen signatures, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form No. IVB & Form V in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in open
Court on 15.09.2018 (VIDYA PRAKASH)
Judge MACT2 (North)
Rohini Courts, Delhi
Moti Lal Vs. Neeraj Kumar & Ors. Page 20 of 20