Delhi District Court
Judge( Ndps)Tis Hazari Courts:(West) ... vs Shri Shankar Singh on 22 November, 2011
1
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN ASJ/SPECIAL
JUDGE( NDPS)TIS HAZARI COURTS:(WEST) DELHI
Suit no. 124/10/09
Date of Filing of the Petition : 23.04.2009
Date reserve for Judgment : 09.11.2011
Date of Final Award : 22.11.2011
Binod Kumar
S/o Late Shri Bulan Singh
R/o RZ E - 668 / 36 Gali no. 27 D
Sadh Nagar - II , Dabri
New Delhi
Also at
3 B Deep Enclave , Vikas Nagar
New Delhi - 59 ...............Petitioner
V E R S U S
1 Shri Shankar Singh
S/o Joginder Singh
C/o Kunal Breakdown Services
at Bhasin Service Station
Pusa Gate , New Delhi
Suit no. 124/10/09 Page ..............1/17
2
2 Smt. Kamlesh Kad
W/o Shri Om Parkash Kad
(M/s Kunal Breakdown Service)
C/O Bhasin Services Station
Pusa Gate, New Delhi
Also at B16 Vishwas Park ,
Uttam Nagar
New Delhi
3 The New India Assurance Co. Ltd.
Branch offices : Channana Complex
3rd Floor , 2212 , Gurudwara Road ,
Karol Bagh, New Delhi 5 ................Respondents
JUDGMENT / AWARD
1. In this petition under section 166 & 140 of the Motor Vehicles Act, 1988 hereinafter referred as the Act , the petitioner has claimed compensation of Rs. 5 Lacs for injuries sustained by him in the accident caused by respondent no.1 . It is alleged that on 06.9.2008 at about 7.20 p.m ,the petitioner was driving motorcycle bearing no. DL 9 SG 7946 alongwith his friend and were going from Vikas Puri to their residence in Sadh Nagar, II, Dabri , New Delhi and when petitioner stopped his motorcycle at red light near Janak Cinema , Pankha road , suddenly the driver of the offending vehicle crane bearing no. DL 1LD 5128 came from back side with a very Suit no. 124/10/09 Page ..............2/17 3 high speed in rash and negligent manner struck against the motor cycle from back . As a result, the petitioner fell down on the road and sustained multiple injuries . Thereafter, the petitioner was removed to Kartik Hospital and thereafter shifted to Sri Balaji Action Medical Institute, Paschim Vihar and was treated for his injuries. Due to the said accident , he has also lost his earning capacity and has suffered permanent disability . At the time of accident, he was working in a private firm M/s Om Shanti Services and was earning Rs 6,500/ per month .
2. All the respondents have been served and have filed their written statement.
3. The respondent no. 1 and 2 have filed their separate written statements and had taken almost similar objections to the petition. Respondents no. 1 and 2 are driver and owner of the vehicle and has denied the allegations of rash and negligent driving stating that accident occurred because of the negligence of the petitioner and they are not liable to pay any compensation .
4. Respondent no. 3 /Insurance company in its written statement has denied their liability to pay compensation. It is however admitted that offending vehicle bearing no. DL 1L D 5128 was insured /registered vide policy no. 312302/31/07/01/00003988 w.e.f 29.12.2007 to 28.12.008.
5. On 09.11.2011 from the pleading of the parties , following issues were framed :
i) Whether the petitioner had sustained multiple injuries on 06.9.2008 at about 7.20 p.m near Janak Cinema , Red Light , pankha Road, Delhi due to rash and negligent driving of respondent no.1 while driving crane bearing number DL Suit no. 124/10/09 Page ..............3/17 4 1LD 5128 ?
ii) Whether petitioner is entitled to any compensation ? If so for what amount and from whom ?
iii) Relief.
6. Binod Kumar petitioner has been examined as PW1, HC Rajbir Singh has been examined as PW2 , Dr. S.K Sharma , DDU hospital as PW3. No RE was lead on behalf of respondents, hence RE was closed on 19.8.2011. ISSUE NO.1 Whether the petitioner had sustained multiple injuries on 06.9.2008 at about 7.20 p.m near Janak Cinema , Red Light , pankha Road, Delhi due to rash and negligent driving of respondent no.1 while driving crane bearing number DL 1LD 5128 ?
7. Petitioner Binod Kumar as PW1 has reiterated the averments of the claim petition. In his testimony vide affidavit Ex. PW1/A , he has deposed that on 06.9.2008 he was driving his motorcycle alongwith his friend Manoj Kumar and was going from Vikaspuri to their residence and stopped his motorcycle at red light , Janak Cinema, Pankha Road, Delhi , suddenly the driver of the offending vehicle crane bearing registration no. DL 1LD 5128 in rash and negligent manner struck against the motor bike of the petitioner from back and petitioner and his friend fell down on the road and sustained multiple injuries . Petitioner was removed to Sri Balaji Action Medical Institute for treatment and had to undergo skin grafting and Suit no. 124/10/09 Page ..............4/17 5 plastic surgery was done and has suffered permanent disability.
8. The complete criminal case record has been placed on record by PW2 HC Rajbir Singh and same is Ex. PW2/A . The conclusion of the chargesheet shows that respondent no. 1 was responsible for causing the accident .
9. Thus , the FIR , seizure memo and mechanical inspection report pertaining to the involvement of the offending vehicle and all other documents on record has sufficiently proved that it was respondent no. 1 who has caused the accident while driving his crane bearing no. DL 1LD 5128 in rash and negligent manner. Moreover, respondents no . 1 and 2 has not challenged the criminal proceedings in any manner and criminal case record shows that police investigation has concluded that respondent no.1 Shankar Singh was driving the offending vehicle in rash and negligent manner and hit the petitioner . The issue no.1 is decided in favour of the petitioners and against the respondents.
ISSUE NO.2 Whether petitioner is entitled to any compensation ? If so for what amount and from whom ?
10. The petitioner has claimed Rs. 5 Lacs as compensation for the injuries suffered by him. Let me now assess the compensation to which petitioner is entitled to under different heads.
Suit no. 124/10/09 Page ..............5/17 6 Compensation for the expenses incurred on medical treatment
11. The petitioner has also proved treatment papers and medical bills Ex. PW1/1 ( pages 1 to 62 ) and total of medical bills comes to Rs. 1,36, 786/. Considering the document and evidence on record and medical bills to the tune of Rs. 1,36, 786/ , the petitioner is therefore, held entitled to a sum of Rs. 1,36, 786/ under this head. Compensation for the expenses incurred on conveyance expenses, special diet and attendant charges.
12 . Though, there is no cogent evidence of the expenses incurred on conveyance expenses, special diet and attendant charges however in view of the nature of injuries received by the petitioner as enumerated by him in his evidence and his treatment papers on record and having suffered 13.5% permanent disability as per Ex. PW1/4 and other bodily injuries, I am of the opinion that petitioner must have spent some sum under this head. I therefore , assess the petitioner to be entitled for a sum of Rs. 10, 000/ for conveyance charges , Rs. 15,000/ on special diet and Rs. 5,000/ on attendant charges respectively. Therefore petitioner is entitled to Rs. 30,000/ as compensation under this head.
Compensation for loss of income
13. The petitioner in his affidavit Ex. PW1/A has stated that due to the accident , the petitioner has remained absent from his duties and till date of filing of the claim petition , he has not joined his office and is still unable to move around and Suit no. 124/10/09 Page ..............6/17 7 has been advised complete bed rest and has suffered permanent disability and is unable to work in future efficiently as he was working previously. The petitioner has placed on record salary certificate Ex. PW1/3 issued by his employer M/s Om Shanti Services wherein it is mentioned that Binod kumar was working with them on commission basis and his gross salary with incentives was Rs. 6500/ per month but employer has not been examined in this regard. Hence, he is entitled to loss of income equivalent to the Minimum wages for a period of 5 months for an unskilled labour . As per Delhi Government notification, the minimum wages at the time of accident was Rs. 3683/(which is rounded off to Rs. 3700/) for an unskilled workman. Hence, her total loss of income would be Rs. 18,500/ (3700 X 5) as compensation for loss of income.
Compensation for Pain and Suffering
14. One cannot over look the fact that injury elicited above sustained by the petitioner resulting into 13.5% permanent disability , would cause life long pain and suffering to the petitioner. It is settled law that no amount of compensation can be adequate for the physical discomfort, mental pain and suffering. The Hon'ble Supreme Court in The Divisional Controller, KSRTC Vs. Mahadeva Shetty & Anr. reported in AIR 2003 SC 4172, has made the following observations regarding compensation for pain and suffering: "It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Merries in West Vs. Shepard (1964 AC 326). Justice requires that it should be equal in value, Suit no. 124/10/09 Page ..............7/17 8 although not alike in kind Object of providing compensation is to place the claimant as far as possible in the same position financially as he was before accident."
15. It is thus, difficult to exactly compensate the injured in terms of money for pain and suffering. In the present case, keeping in mind the facts and circumstances of the case and fact that petitioner is suffering from 13.5% permanent disability, I am of the opinion that a sum of Rs. 30,000/ as compensation for pain and suffering will be sufficient to meet the ends of justice.
COMPENSATION FOR LOSS OF AMENITIES OF LIFE
16. Petitioner had suffered permanent disability in relation to left upper limb. Keeping in mind the permanent disability suffered, the restrictions put on enjoyment of his life due to the suffered permanent disability, I am of the opinion that a sum of Rs. 30,000/ as compensation for loss of amenities of life will be sufficient to meet the ends of justice.
Compensation for loss of earning capacity on account of permanent disability
17. In the present case , the petitioner has suffered 13.5% permanent disability because of injuries sustained in the accident and the disability has been found to be permanent.
Suit no. 124/10/09 Page ..............8/17 9
18. Let me now asses the compensation to which the petitioner is entitled on the ground of permanent disability of 13.5% in relation to left upper limb.
19. The petitioner has proved his disability certificate Ex. PW1/4 showing 13.5 % permanent disability. The disability certificate Ex. PW1/4 has been placed on record by PW3 Dr. S.K Sharma and he has testified that the said disability is permanent in nature in relation to the left upper limb . The doctor has deposed that the patient / petitioner was found to have a permanent disability of 13.5% in relation to his left upper limb due to post traumatic scarring of left forearm with restriction of elbow and wrist movement. This witness was not crossexamined on behalf of respondents.
20. In terms of the law laid in the case of Oriental Insurance Company Ltd. Vs Rajinder Kumar & ors. reported in (III 2007) ACC 19, Hon'ble Mr. Justice Pradeep Nandrajog had held that when the injured a qualified stenographer suffered permanent disability resulting in 44 % functional disability on left arm crushed under bus, there was no infirmity found in the award recompensating loss of future earning due to disability suffered by injured as a result of accident, even though the petitioner had not suffered any cut in salary and was employed with the same employer. Also was held that if as a result of the accident, human anatomy is shattered or a limb is damaged, as far as possible, loss occasioned in terms of money to the victim of the unfortunate road mishap has to be recompensed. Damages have to be full and adequate. In case of personal Suit no. 124/10/09 Page ..............9/17 10 injuries, the assessment of damages have to take into consideration the restriction of future earning capacity. The loss of chance of better employment or prospects have also to be examined and assessed. The impairment of the body as a whole has to be considered and its resultant impact on the earning or earning capacity as also future prospects in increasing the earning capacity have to be considered.
21. In the case of S.K. Kattimani Vs. Karnataka State Road Transport Corporation & Others reported as 2007 ACJ 2279 wherein the Hon'ble Apex Court has held in para No. 3 and 4 as under:
"After hearing learned counsel for the parties, we find that the High Court committed gross error in ignoring the fact that the claimant was a coolie doing manual labour for earning his livelihood. As a result of the accident his one arm was amputated which was almost total disability for earning. In such a situation, to reduce the quantum of compensation by treating disability at 50 percent was uncalled for. The tribunal has in fact assessed the disability at 80 percent."
Consequently, we allow his appeal, set aside the order of the High Court and restore the award made by Motor Accidents Claims Tribunal."
22. In the present case , the petitioner has suffered 13.5% permanent disability and other bodily injuries sustained because of the accident. There is no doubt that due to permanent disability the prospect of earning of livelihood by petitioner has been adversely affected. The case of S.K. Kattimani referred (Supra) perfectly covers the facts of the present case and the ratio is squarely applicable in the case of the petitioner also.
23. As per law laid down in Patti Ram Vs Kushal Pal Singh reported as 2010 ACJ 1481 by Hon'ble High court of Delhi , in a case of permanent disability in order to Suit no. 124/10/09 Page ..............10/17 11 assess the loss of earning capacity on the basis of minimum wages , the increase in minimum wages due to inflation and rise in price index has to be taken into consideration. It was also held that court should take judicial notice of increase in minimum wages to meet the increase in price index and inflation rate . It was also held that in various judgments the Hon'ble High court of Delhi has taken the view that the minimum wages get doubled over the period of 10 years and the increase in minimum wages is not akin to future prospects. Thus, Tribunal has to consider future increase in minimum wages while awarding compensation for loss of earning capacity. Benefit of future increase in the income of the injured is to be given. The mean average income of the injured is to be calculated by adding double amount of minimum wages to the prevailing wages and dividing the total sum by 2(Two) . On the same analogy to be applicable in this case, the loss of monthly income of the petitioner due to permanent disability is concluded as under : (Rs. 3700 + Rs.7400) divided by 2 Rs. 11,100 / ÷ 2 = Rs. 5,550/
24. In terms of the law laid in the case of Rajinder Kumar (SUPRA) the petitioner is according entitled for loss of earning capacity on account of permanent disability suffered as per multiplier basis. The petitioner has failed to lead any cogent evidence to show that he was earning Rs.6500/ pm from his work/job and therefore he is to be granted loss of earning on the basis of minimum wages prevailing at the time of accident for an untrained workman. According to minimum wages, as per Suit no. 124/10/09 Page ..............11/17 12 Delhi Government Notification, the monthly income of the petitioner is to be taken as Rs. 3700/ as herein before elicited.
25. In terms of law laid in the case of Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. Cited as 2009, ACJ 1298, it was held that in a claim petition u/s 166 of the Motor Vehicles Act, 1988, the multiplier of 15 is to be applied for assessing the compensation for the victim of the road accident ( for the age group of 3640 years ) . The date of birth of the petitioner in the driving licence has been shown as 16.09.1972 . The accident has occurred on 06.9.2008. Thus, at the time of accident the petitioner was of age of 36 years. Since the petitioner was of age 36 years as per Driving Licence Mark A , here also the multiplier of 15 is to be adopted in this case for assessing the compensation for petitioner.
26. In view of the aforesaid , the petitioner has suffered loss of earning capacity to the tune of Rs. 9, 99,000/ (Rs 5,550 X 12 X 15 ) as compensation for loss of earning capacity.
COMPENSATION FOR PHYSICAL DISFIGUREMENT DUE TO PERMANENT DISABILITY
27. The petitioner has suffered permanent disability along with other bodily injury resulting into 13.5% physical disability vide Ex.PW1/4, resultant from the present accident in question. The physical disfigurement cannot be recompensed in Suit no. 124/10/09 Page ..............12/17 13 terms of money , till one is alive , one cannot face even oneself to the hard realities due to physical disfigurement / disability . The Tribunal is enjoined to award just compensation for non pecuniary damages under this head as well. I am of the considered opinion that Rs. 20, 000/ as compensation under this head for the petitioner would be just and petitioner is entitled for the same.
28. In view of the above discussions, the total compensation to which the petitioner Binod Kumar is entitled comes as under : 1 Compensation for the expenses incurred on medical treatment Rs. 1,36, 786/ 2 Compensation for special diet , conveyance and attendant charges Rs. 30,000/ 3 Compensation for loss of income Rs. 18,500/ 4 Compensation for pain and suffering Rs. 30,000 / 5 Compensation for loss of amenities of life Rs. 30,000/ 6 Compensation for loss of earning capacity Rs. 9, 99,000/ 7 Compensation for physical disfigurement due to permanent disability Rs 20,000 / TOTAL Rs. 12, 64, 286/ Suit no. 124/10/09 Page ..............13/17 14
29. In view of the above discussion, issue no. 2 is decided in favour of the petitioner and against the respondents. The petitioner is thus entitled to a sum of Rs.12, 64, 286/ as compensation along with interest @ 7.5% per annum from the date of filing of the petition till its realization from the respondents , payable by the Insurer i.e respondent no. 3 The New India Assurance Co. Ltd.
RELIEF 30 In view of the aforesaid discussions, it is hereby held that petitioner is thus entitled to Rs. 12, 64, 286/ as compensation alongwith interest @7.5 % per annum from the date of filing of the petition till its realization from the respondents payable by respondent no.3 The New India Assurance Co. Ltd..
31. Since the amount awarded should not be frittered away by of India in a case titled 'G.M. Kerala State Road Transport Corporation Vs. Susamma Thomas' reported in 1994(2) SCC 176, has laid guidelines pronouncing that in a case of compensation, it is appropriate that Tribunals do keep in mind the principles enunciated by this court in 'Union Carbide Corporation Vs. Union of India', 1991(4) SCC 584, in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. Guidelines inter alia included of investment of share of the claimants in FDRs in nationalized banks with conditions that bank will not permit any loan or advance on the fixed deposits and Suit no. 124/10/09 Page ..............14/17 15 interest on the amount invested is paid monthly/periodically directly to the claimant and such investment may be made in more tha n one fixed deposit. In case of any exigency, claimants are at liberty to apply to Tribunal for withdrawal of such investment.
32. In terms thereof, out of the award sum, 70% sum be invested in 14 FDR's of equal (almost) in name of petitioner in State Bank of India. One FDR be invested for a period of one year; One FDR be invested for a period of two years; One FDR be invested for a period of three years; One FDR be invested for a period of four years; One FDR be invested for a period of five years; One FDR be invested for a period of six years; One FDR be invested for a period of seven years; One FDR be invested for a period of eight years; One FDR be invested for a period of nine years; One FDR be invested for a period of ten years; One FDR be invested for a period of eleven years; One FDR be invested for a period of twelve years; One FDR be invested for a period of thirteen years; One FDR be invested for a period of fourteen years The FDRs shall have no facility of loan or advance. Petitioner can withdraw the interest monthly. In case of exigency, petitioner can move application for premature withdrawal before this Tribunal, as per law.
33. Aforesaid fixed deposits are to be made by State Bank of India, Tis Hazari in the following manner: (1) The State Bank of India, Tis Hazari, shall open separate Savings Account in the Suit no. 124/10/09 Page ..............15/17 16 name of claimant and the entire interest on the aforesaid fixed deposits be credited in the said accounts. The fixed deposits shall be automatically renewed till the period prescribed by the court.
(2) The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Account. Claimant after due verification and the Bank shall issue photo identity card/pass book with attested photograph to claimant to facilitate his identity.
(3) No cheque book be issued to the claimant without the permission of this court. (4) Half yearly statement of account be filed by the Bank in this court. (5) The original FDRs shall be retained by the Bank in the Safe custody. However, the original pass book shall be given to the claimant alongwith the photocopy of the FDRs.
(6) The original Fixed Deposit Receipts shall be handed over to the claimant at the end of the fixed deposit period.
(7) No loan, advance or withdrawal shall be allowed on the said FDRs without the permission of this court.
(8) On the request of the claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India according to the convenience of the claimant
34. In terms of directions contained in case of UOI Vs Nanisiri, in MAC Appeal no. 682/2005 , order dated 13.1.2010 of Hon'ble Mr. Justice J.R Midha, Respondent no. 3 The New India Assurance Co. Ltd. is directed to directly deposit the Suit no. 124/10/09 Page ..............16/17 17 award sum with State Bank of India (SBI) Tis Hazari within 30 days through its nodal officer , Mr. H.S Rawat, Relationship Manager , Tis Hazari Branch (MB: 09717044322) and the Manager concerned of SBI, Tis Hazari Court to release the balance amount by transferring the same to the Saving Bank Account of the petitioner /claimant. Insurance company to also file proof of deposit of award sum, also within said period , Manager SBI, Tis Hazari to also furnish compliance report within said period , Manager SBI, Tis Hazari to also furnish compliance report within 15 days of deposit of award sum. Claimant to do the necessary formalities in respect of the bank account(s). Nazir to keep the copy of Award in a miscellaneous file for awaiting compliance report from all concerned, which is to be put up on 17.12.2011 File be consigned to record room.
ANNOUNCED IN THE OPEN COURT
ON 22nd day of November , 2011
(RAJ KUMAR CHAUHAN)
ASJ/SPECIALJUDGE(NDPS)
(WEST)DELHI
Suit no. 124/10/09 Page ..............17/17