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[Cites 16, Cited by 0]

Delhi District Court

Meenakshi vs Hansraj on 1 October, 2014

                      IN THE COURT OF Ms. GEETANJLI GOEL
                     PO: MOTOR ACCIDENT CLAIMS TRIBUNAL 2
                                  NEW DELHI

                                   SUIT NO.82/14

DATE OF INSTITUTION: 19.12.2013

IN THE MATTER OF:

1.  Meenakshi 
W/o Shri Nanak Chand
R/o 1/6, Rajkumari Amrit Kaur 
Nursing College 
Lajpat Nagar
New Delhi. 

2.  Arti 
W/o Shri Om Prakash
R/o 1/6, Rajkumari Amrit Kaur 
Nursing College 
Lajpat Nagar
New Delhi.                                         ......... Petitioners.

Versus

1. Hansraj
S/o Shri Hari
R/o H.No. F­152, J. J. Colony 
Raghubir Nagar
PS Rajouri Garden
Delhi.

2. M/s Future Generali India Insurance Co. Ltd. 
1st Floor, Unit No.110 to 115 
Krishna Apra Business Square 


Suit No. 82/14                                                      Page No. 1 of 30  
Meenakshi Vs. Hansraj & Ors.  
 Plot No. D­4­6, Netaji Subhash Place 
New Delhi ­ 110034.                                               .........Respondents
Final Arguments heard                    : 02.09.2014
Award reserved for                       : 01.10.2014
Date of Award                            : 01.10.2014

AWARD

1. Vide this judgment cum award I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.

2. It is the case of the petitioners that on 21.06.2013 at about 14.45 hrs the petitioner No.1 was traveling on Scooty bearing No.DL­3SBX­4352 along with her sister Arti who was pillion rider on the Scooty. When they reached Moti Bagh Flyover within the jurisdiction of PS R. K. Puram suddenly a car bearing No.DL­5CD­9494 came in a rash and negligent manner and hit the Scooty from behind as a result of which the petitioners fell on the road and sustained grievous injuries. It is averred that the petitioners were taken to AIIMS Trauma Center where MLC No.373554/13 and MLC No.373555/13 were registered respectively. It is stated that FIR No 204/13 U/s 279/338 IPC was registered at PS R.K. Puram, New Delhi in respect of the accident. It is averred that the accident was caused due to the rash and negligent driving of the respondent No.1. It is stated that the petitioner Meenakshi is 34 years old and a housewife and her monthly income was nil while the petitioner No.2 is 30 years old and running a beauty parlour and earning Rs. 20,000/­ p.m. It is averred that due to the injuries sustained by the petitioners they Suit No. 82/14 Page No. 2 of 30 Meenakshi Vs. Hansraj & Ors.

are not able to work in full capacity as they used to before the accident. It is averred that the petitioners have suffered grievous injuries. It is averred that the treatment is still going on of the petitioners and Rs.25,000/­ were incurred on their treatment. It is averred that the petitioners are entitled for Rs.3 lacs towards compensation for the injuries sustained due to the rash and negligent driving and carelessness of the respondent No.1 and the respondent No.2 is liable to indemnify the respondent No.

1. It is prayed that an amount of Rs.3 lacs be awarded as compensation in favour of the petitioners and against the respondents.

3. Reply was filed on behalf of the driver cum owner taking the preliminary objections that the alleged vehicle has been falsely involved in the alleged accident by the police, as the complainant herself was driving her vehicle in a rash and negligent manner and hit the vehicle of the respondent No.1. It is averred that the driver of the vehicle has been falsely implicated in the case who had a valid driving license at the time of the alleged accident. It is averred that the alleged vehicle was duly insured from Future Generali India Insurance Company Limited vide cover Note No.F4446804 for the period 7.6.2013 to 6.6.2014 and was valid at the time of the alleged accident, hence the respondent No.1 was not liable to pay any compensation. It is averred that the injured herself was at fault in driving her vehicle in a rash and negligent manner and hit the vehicle of the respondent No.1.

4. Reasoned decision was filed on behalf of the respondent No.2 in which an offer of Rs.15,000/­ in full and final discharge of the liability of the respondent No.2 was made in addition to the amount of the actual medical bills in the case of Suit No. 82/14 Page No. 3 of 30 Meenakshi Vs. Hansraj & Ors.

Meenakshi and for an amount of Rs.10,000/­ in the case of Arti. It is averred that the vehicle No.DL­5CD­9494 was insured with the respondent No.2 at the relevant time i.e. on 21.06.2013 vide policy cover note No.F4446804 for the period from 07.06.2013 to 06.06.2014.

5. Initially the Detailed Accident Report was filed by the IO on 18.11.2013 and thereafter the claim petition was filed on 19.12.2013. An application was filed on behalf of the petitioner No.1 Meenakshi for issuance of disability certificate which was allowed vide order dated 23.1.2014.

6. The petitioner No.2 appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. PW1 deposed that on 21.06.2013 at 14.45 p.m. she along with her sister Meenakshi was going on the scooter bearing No.DL 3SBX 4352 at the right side following the traffic rules, suddenly Maruti Swift vehicle bearing No.DL­15CD­9494 came in a rash and negligent manner and hit the scooter from behind as a result of which they both sustained injuries. She stated that she sustained head injury and also all over her body and in the spine and facial injuries. She stated that she is self­employed and running a beauty parlour. She stated that she has two children aged 7 years and 3 years who are small and need constant attention all the time. She stated that she had suffered head injuries with stitches on the right eyebrow which had disfigured her face. She stated that she had also suffered internal injuries of spine which had kept her indisposed for more than 15 days which had resulted into neglecting her house, children and day to day activities. Suit No. 82/14 Page No. 4 of 30 Meenakshi Vs. Hansraj & Ors.

She stated that she had suffered losses in her parlour also as she had to keep the parlour closed for the said days and accordingly the loss of earning was Rs.20,000/­ p.m. She stated that she was about 30 years of age at the time of the accident. She stated that due to the said accident she was admitted in AIIMS Trauma Centre where she had to spend Rs.5,000/­ on her treatment. She stated that she had to take discharge as there was nobody to take care in the hospital and her husband had to go to attend the job. She stated that the treatment was continuing for a long time, after the accident she had mental trauma and she had not been able to resume her work as well as normal activities and earning till date. She stated that she had spent more than Rs.10,000/­ on her treatment and some of the bills could not be procured due to the emergent situation. She stated that she had suffered two months loss and also towards the household activities. She stated that she was contributing her earning to the members of the family and she had to keep an attendant during her treatment. She stated that she had to spend Rs.10,000/­ towards conveyance and diet. She stated that she had limited source of income. The election card/ Aadhar card is Ex.PW1/1, medical records including discharge summary are Ex.PW1/2 (colly) and criminal records are Ex.PW1/3 (colly).

7. The petitioner No.1 Meenakshi appeared in the witness box as PW2 and led her evidence by way of affidavit which is Ex.PW2/A reiterating the averments made in the claim petition. PW2 deposed that on 21.06.2013 at 14.45 p.m. she along with her sister Arti was going on the scooter bearing No.DL 3SBX 4352 at the right side following the traffic rules, suddenly Maruti Swift vehicle bearing No.DL­15CD­9494 came in a rash and negligent manner and hit the scooter from behind as a result of Suit No. 82/14 Page No. 5 of 30 Meenakshi Vs. Hansraj & Ors.

which they both sustained injuries. She stated that she sustained injuries all over her body and in the spine and sustained fracture on the right arm as a result of which she sustained disfigurement and disability in her right arm as per the discharge summary. She stated that she is self­employed and running as LIC agent and agent of Oriflame products. She stated that she has one son aged about 11 years who is small and needs constant attention all the time. She stated that she had sustained fracture on the right arm which had resulted in disfigurement and disability. She stated that she had also suffered internal injuries of spine which had kept her indisposed for more than 6 months which had resulted into neglecting her house, children and day to day activities. She stated that she had suffered losses in her work also and accordingly the loss of earning was Rs.20,000/­ p.m. She stated that she was about 32 years of age at the time of the accident. She stated that due to the said accident she was admitted in AIIMS Trauma Centre where she had to spend Rs. 50,000/­ on her treatment. She stated that she had to take discharge as there was nobody to take care in the hospital and her husband had to go to attend the job. She stated that the treatment was still continuing and ever since the accident she had not been able to resume her work as well as normal activities and earning till date. She stated that she had spent more than Rs.50,000/­ on her treatment and some of the bills could not be procured due to the emergent situation. She stated that she had suffered two months loss and also towards the household activities. She stated that she was contributing her earning to the members of the family and she had to keep an attendant who was still helping for her day to day activities. She stated that her treatment was still continuing and she had to visit the hospital for regular check­up. She stated that she had to spend Rs.25,000/­ towards conveyance Suit No. 82/14 Page No. 6 of 30 Meenakshi Vs. Hansraj & Ors.

and diet. She stated that she had limited source of income. The election card/ Aadhar card is Ex.PW2/1, medical records including discharge summary are Ex.PW2/2 (colly) and criminal records are Ex.PW2/3 (colly). PE was closed on 10.7.2014. No RE was led on behalf of the respondents.

8. I have heard the learned counsel for the petitioners and the learned counsel for the respondent No.2 and perused the record. The petitioners were also examined on 10.7.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.

9. As regards the question of negligence since the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that they sustained injuries in an accident caused due to the rash and negligent driving by the respondent No.1, the driver of the offending vehicle No.DL­5CD­9494. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:

"The last contention of the appellant insurance company is that the respondents/claimants 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 Company Ltd. V. Meena Variyal (supra). On perusal of the award 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 Suit No. 82/14 Page No. 7 of 30 Meenakshi Vs. Hansraj & Ors.

FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle 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 part of the driver."

It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.

10. The case of the petitioners is that on 21.06.2013 at about 14.45 hrs the petitioner No.1 was traveling on Scooty bearing No.DL­3SBX­4352 along with her Suit No. 82/14 Page No. 8 of 30 Meenakshi Vs. Hansraj & Ors.

sister Arti who was pillion rider on the Scooty. When they reached Moti Bagh Flyover within the jurisdiction of PS R. K. Puram suddenly a car bearing No.DL­5CD­9494 came in a rash and negligent manner and hit the Scooty from behind as a result of which the petitioners fell on the road and sustained grievous injuries. It was averred that the petitioners were taken to AIIMS Trauma Center where MLC No.373554/13 and MLC No.373555/13 were registered respectively. It was stated that FIR No. 204/13 U/s 279/338 IPC was registered at PS R. K. Puram, New Delhi in respect of the accident. It was averred that the accident was caused due to the rash and negligent driving of the respondent No.1. PW1 in para 2 of her affidavit Ex.PW1/A had reiterated the mode and manner of the accident as stated in the claim petition. Likewise PW2 in para 2 of her affidavit Ex.PW2/A had reiterated the mode and manner of the accident.

11. The IO had filed Detailed Accident Report, on which reliance has been placed by the petitioners, containing the criminal record consisting of copy of charge sheet; copy of FIR; copy of tehrir, copy of seizure memos, copy of notice under Section 133 MV Act, copy of arrest memo, copies of MLCs, copy of RC of the offending vehicle with the verification report, copy of DL of the respondent No.1 and its verification report, copy of site plan; copy of mechanical inspection report of the offending vehicle and of the scooty of the petitioners, copy of DL of the petitioner No.1 Meenakshi, copy of cover note of the offending vehicle with its verification report, copy of Aadhar card of the petitioner No.2, photographs and copy of statements under Section 161 Cr.P.C. As per the FIR No.204/13 under sections 279/337 IPC, PS R.K. Puram the case was registered on the basis of complaint of Suit No. 82/14 Page No. 9 of 30 Meenakshi Vs. Hansraj & Ors.

Meenakshi wherein she had stated the manner in which the accident had taken place. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/337/338 IPC.

12. The respondent No.1 had filed reply averring that the alleged vehicle had been falsely involved in the alleged accident by the police, as the complainant herself was driving her vehicle in a rash and negligent manner and hit the vehicle of the respondent No.1. It was averred that the driver of the vehicle had been falsely implicated in the case who had a valid driving license at the time of the alleged accident. It was averred that the injured herself was at fault in driving her vehicle in a rash and negligent manner and hit the vehicle of the respondent No.1. However the respondent No.1 did not appear to cross­examine PW1 and PW2. During cross­ examination by the learned counsel for the respondent No.2 PW1 stated that the accident took place on 21.06.2013 at around 2.00 p.m. She did not remember the registration number of the offending vehicle. She denied the suggestion that the accident had not been caused due to the rashness and negligence of the respondent No.1. During cross­examination by the learned counsel for the respondent No.2 PW2 stated that the accident took place on 21.06.2013 at around 2.30­3.00 p.m. She did not remember the registration number of the offending vehicle. She denied the suggestion that the accident had not been caused due to the rashness and negligence of the respondent No.1. Thus PW1 stated that the accident took place on 21.06.2013 at around 2.00 p.m. and PW2 also stated that the accident took place on 21.06.2013 at around 2.30­3.00 p.m. Both PW1 and PW2 did not remember the registration number of the offending vehicle. However nothing much turns on the same as the number of the offending vehicle was duly mentioned Suit No. 82/14 Page No. 10 of 30 Meenakshi Vs. Hansraj & Ors.

in the FIR. Both PW1 and PW2 denied the suggestion that the accident had not been caused due to the rashness and negligence of the respondent No.1. Thus nothing material has come out in the cross­examination of PW1 and PW2. The respondent No.1 had stated in the written statement that the injured herself was at fault in driving her vehicle in a rash and negligent manner and hit the vehicle of the respondent No.1 but there is nothing to show the same or that the accident had taken place due to the negligence of the petitioner No.1. Even the respondent No.1 has not led any evidence to establish the same.

13. The respondent No.1 who is the driver and owner of the offending vehicle has not led any evidence to dispute the version put forth by the petitioners or in the criminal record or to prove any other version of the accident. Further the criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/337/338 IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. There is absolutely no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.DL­5CD­9494. In view of the testimony of PW1 and PW2 and the documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved.

14. It was stated that due to the accident the petitioners fell down on the road and the petitioners sustained grievous injuries. The MLCs of the petitioners are on Suit No. 82/14 Page No. 11 of 30 Meenakshi Vs. Hansraj & Ors.

record which show the nature of injuries in respect of the petitioner No.1 Meenakshi to be grievous and in respect of the petitioner Arti to be simple. Thus it stands established that the petitioners had sustained injuries in the alleged accident. The question of negligence of the driver of the offending vehicle is accordingly decided in favour of the petitioners and against the respondents.

15. Since the question of negligence has been decided in favour of the petitioners, they would be entitled to compensation as per the provisions of the Motor Vehicle Act. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads:­ (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by them on their treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, the injured are further entitled to non­pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life. COMPENSATION IN RESPECT OF THE PETITIONER No.1 MEENAKSHI MEDICINES AND MEDICAL TREATMENT

16. It is the case of the petitioner Meenakshi that due to the accident on 21.06.2013 she fell down on the road and sustained grievous injuries. It was averred that the petitioner and her sister were taken to AIIMS Trauma Center where MLC No.373554/13 and MLC No.373555/13 were registered respectively. It was averred that due to the injuries sustained by the petitioners they were not able to work in full capacity as they used to before the accident. It was averred that the petitioners had Suit No. 82/14 Page No. 12 of 30 Meenakshi Vs. Hansraj & Ors.

suffered grievous injuries. It was averred that the treatment was still going on of the petitioners and Rs.25,000/­ were incurred on their treatment. The petitioner No. 1 in paras 2 and 4 of her affidavit Ex.PW2/A had deposed to that effect. PW2 stated that she sustained injuries all over her body and in the spine and sustained fracture on the right arm as a result of which she sustained disfigurement and disability in her right arm as per the discharge summary. She stated that she had also suffered internal injuries of spine which had kept her indisposed for more than 6 months which had resulted into neglecting her house, children and day to day activities. She stated that due to the said accident she was admitted in AIIMS Trauma Centre where she had to spend Rs.50,000/­ on her treatment. She stated that she had to take discharge as there was nobody to take care in the hospital and her husband had to go to attend the job. She stated that the treatment was still continuing and ever since the accident she had not been able to resume her work as well as normal activities and earning till date. She stated that she had spent more than Rs. 50,000/­ on her treatment and some of the bills could not be procured due to the emergent situation. She stated that her treatment was still continuing and she had to visit the hospital for regular check­up. The medical records including discharge summary are Ex.PW2/2 (colly). The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and the nature of injuries was opined to be grievous. The documents placed on record show that the petitioner had sustained comminuted fracture distal end of radius and fracture Rt. Zygomatic Arch Depressed. Thus the injuries were serious in nature. The petitioner had also appeared before the Disability Board and as per the Disability Certificate the petitioner was a case of fracture of distal end of right radius which had malunited. Suit No. 82/14 Page No. 13 of 30 Meenakshi Vs. Hansraj & Ors.

She had restriction of last 10 degree of flexion and extension of right wrist which are painful and her permanent physical impairment was 5% in relation to right upper limb.

17. During cross­examination by the learned counsel for the respondent No.2 PW2 stated that due to the accident caused she suffered multiple fractures. She stated that due to the accident she was on total bed rest for 2 months. She stated that she got herself treated in Government Hospital. She did not remember the actual medical expenditure incurred. Thus PW2 stated that she was on total bed rest for 2 months though there is nothing in the documents to show that she was advised bed rest for any particular period. The petitioner had stated that she had spent more than Rs.50,000/­ on her treatment though she also stated that she got herself treated in Government Hospital. However the petitioner has placed on record only one bill for an amount of Rs.2,385/­. It cannot be disputed that the petitioner sustained injuries in the accident and underwent treatment for the same. Looking to the injuries the petitioner would be entitled to the amount of the medical bill. The petitioner would have incurred some expenditure on treatment even subsequently. Accordingly, a sum of Rs.5,000/­ (Rs.Five Thousand only) is awarded towards medical expenses including the amount of the bill. PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE

18. It has been held in Divisional Controller, K. S. R. T. C v Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:

Suit No. 82/14 Page No. 14 of 30

Meenakshi Vs. Hansraj & Ors.
"The damages for vehicular accidents are in the nature of compensation in money for less of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (1969 1 All. E. R. 555) Lord Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but no other process can be devised than that of making monetary assessment."

The case of the petitioner is that due to the accident on 21.06.2013 she fell down on the road and sustained grievous injuries. It was averred that the petitioner and her sister were taken to AIIMS Trauma Center where MLC No.373554/13 and MLC No. 373555/13 were registered respectively. It was averred that due to the injuries sustained by the petitioners they were not able to work in full capacity as they used to before the accident. It was averred that the petitioners had suffered grievous injuries. It was averred that the treatment was still going on of the petitioners. PW2 stated that she sustained injuries all over her body and in the spine and sustained fracture on the right arm as a result of which she sustained disfigurement and disability in her right arm as per the discharge summary. She stated that she had also suffered internal injuries of spine which had kept her indisposed for more than 6 months which had resulted into neglecting her house, children and day to day activities. She stated that due to the said accident she was admitted in AIIMS Trauma Centre. She stated that she had to take discharge as there was nobody to take care in the hospital and her husband had to go to attend the job. She stated that the treatment was still continuing and ever since the accident she had not been able to resume her work as well as normal activities and earning till date. She stated Suit No. 82/14 Page No. 15 of 30 Meenakshi Vs. Hansraj & Ors.

that her treatment was still continuing and she had to visit the hospital for regular check­up. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and the nature of injuries was opined to be grievous. The documents placed on record show that the petitioner had sustained comminuted fracture distal end of radius and fracture Rt. Zygomatic Arch Depressed. Thus the injuries were serious in nature. The petitioner had also appeared before the Disability Board and as per the Disability Certificate the petitioner was a case of fracture of distal end of right radius which had malunited. She had restriction of last 10 degree of flexion and extension of right wrist which are painful and her permanent physical impairment was 5% in relation to right upper limb. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2013, the petitioner is awarded Rs.35,000/­(Rs.Thirty Five Thousand only) for pain and suffering.

19. The petitioner was stated to be around 34 years old and it was so stated in the claim petition though in the evidence by way of affidavit Ex.PW2/A the petitioner had stated her age to be 32 years. The copy of the DL of the petitioner was placed with the DAR which shows her date of birth to be 2.8.1971. Thus the petitioner would have been more than 41 years old on the date of the accident i.e. 21.6.2013. Notice can be taken of the fact that on account of the injuries sustained by her the petitioner may not have been able to perform her day to day duties towards her family and on account of the injuries suffered by her the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.20,000/­(Rs.Twenty Thousand only) for loss of amenities of life. However the petitioner would not be entitled to any amount towards loss of Suit No. 82/14 Page No. 16 of 30 Meenakshi Vs. Hansraj & Ors.

expectation of life though she is awarded an amount of Rs.10,000/­ towards disfiguration.

CONVEYANCE AND SPECIAL DIET

20. In para 6 of the affidavit Ex.PW2/A the petitioner had stated that she had spent Rs.25,000/­ towards diet and conveyance. She stated that she had to visit hospital for regular check­up. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the petitioner was taken to AIIMS Trauma Centre and she had to visit the hospital subsequently as well for treatment and consultations. After discharge from the hospital she would have hired the services of private conveyance as she would not have been able to drive of her own or to use public conveyance and would have spent amount on conveyance for going for her treatment. In the circumstances a sum of Rs.5,000/­ (Rs.Five Thousand Only) would be just and proper towards conveyance charges.

21. In para 6 of the affidavit Ex.PW2/A the petitioner had stated that she had spent Rs.25,000/­ towards diet and conveyance. Although the petitioner has not proved that she was advised special diet but looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.5,000/­ for special diet.

22. The petitioner in para 4 of her affidavit Ex.PW2/A had stated that she had to keep an attendant who was still helping for her day to day activities. She also stated Suit No. 82/14 Page No. 17 of 30 Meenakshi Vs. Hansraj & Ors.

that she has one son aged about 11 years who is small and needs constant attention all the time. Although the petitioner has not produced any evidence to show that she incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.6000/­ is awarded towards attendant charges. LOSS OF INCOME

23. It is the case of the petitioner that she was 34 years old and a housewife and her monthly income was nil. It was averred that due to the injuries sustained by the petitioner she was not able to work in full capacity as she used to before the accident. PW2 in para 3 of her affidavit Ex.PW2/A had stated that she is self­ employed and running as LIC agent and agent of Oriflame products. She stated that she had sustained fracture on the right arm which had resulted in disfigurement and disability. She stated that she had also suffered internal injuries of spine which had kept her indisposed for more than 6 months which had resulted into neglecting her house, children and day to day activities. She stated that she had suffered losses in her work also and accordingly the loss of earning was Rs.20,000/­ p.m. She stated that she was about 32 years of age at the time of the accident. She stated that the treatment was still continuing and ever since the accident she had not been able to resume her work as well as normal activities and earning till date. She stated that she had suffered two months loss and also towards the household activities. She stated that she was contributing her earning to the members of the family. She stated that she had limited source of income. However the petitioner has not placed on record any document to show what she was doing or how much Suit No. 82/14 Page No. 18 of 30 Meenakshi Vs. Hansraj & Ors.

she was earning. It is also pertinent that in the claim petition it was stated that the petitioner was a housewife and her income was nil whereas in the evidence by way of affidavit it was stated that the petitioner was self­employed and running as LIC agent and agent of Oriflame products. She had also not stated her income specifically though she had stated that the loss of earning was Rs.20,000/­ per month and again there is nothing to show the same. During cross­examination by the learned counsel for the respondent No.2 PW2 stated that she is self­employed working as an LIC agent. She stated that she had not placed on record any document to prove her employment as LIC agent. She stated that she did not have any fixed source of income. Thus PW2 reiterated that she is self employed working as an LIC agent though she stated that she had not placed on record any document to prove her employment as LIC agent. She also stated that she did not have any fixed source of income. During examination by the Tribunal the petitioner Meenakshi stated that she is 40 years old and is agent of LIC and Oriflame and earns about Rs.10,000/­ p.m. In the absence of any documentary evidence the income of the petitioner would have to be computed on the basis of minimum wages prevalent on the date of the accident i.e. 21.6.2013. After the final arguments the petitioner had placed on record her Senior School Certificate Examination document. As such her income would be computed on the basis of minimum wages for a matriculate as there is nothing to show that had done graduation which were Rs.9,386/­ per month i.e. Rs.1,12,632/­ p.a.

24. The contention of the petitioner is that she had suffered 5% permanent disability. In Raj Kumar v Ajay Kumar & Anr.(2011)1 SCC 343, the Hon'ble Supreme Court has held that :

Suit No. 82/14 Page No. 19 of 30

Meenakshi Vs. Hansraj & Ors.
"4..........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 equitable manner. The court or tribunal has to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. Thus Tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6.Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent Suit No. 82/14 Page No. 20 of 30 Meenakshi Vs. Hansraj & Ors.
disabilities for the purpose of claiming compensation''.
"8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency)."

Thus it has been held that what requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured i.e. the functional disability and after assessing the loss of earning capacity in terms of percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings. The disability certificate is on record and as per the same the petitioner was a case of fracture of distal end of right radius which had malunited. She had restriction of last 10 degree of flexion and extension of right wrist which are painful and her permanent physical impairment was 5% in relation to right upper limb. The doctor has not been examined in the present case who could depose about the effect of the disability on the working capacity of the petitioner. The petitioner has sustained permanent physical disability of 5% in relation to right upper limb which would have some effect on the working capacity of the petitioner. In view of the same considering the nature of disability, the age of the petitioner and other attending circumstances the functional disability in her respect is taken as 3% in relation to the whole body. Accordingly the loss of income of the petitioner shall be 3% of Rs.1,12,632/­ i.e. Rs.3,379/­ per annum.

Suit No. 82/14 Page No. 21 of 30 Meenakshi Vs. Hansraj & Ors.

23. As observed above the petitioner was more than 41 years old at the time of the accident and suffered permanent disability. As per Sarla Verma v. DTC (2009) 6 SCC 121 the appropriate multiplier applicable shall be of 14. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:

"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self­employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self­employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."

12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self­employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."

Thus the petitioner would be entitled to addition of 30% of the income towards future prospects as she was above 40 years. After applying the multiplier of 14, the petitioner shall be entitled to loss of income i.e. Rs.3,379X14 = Rs.47,306/­ + Rs. Suit No. 82/14 Page No. 22 of 30 Meenakshi Vs. Hansraj & Ors.

14,192/­ (30% future prospects) i.e. Rs.61,498/­ rounded off to Rs.61,500/­.

24. The petitioner had stated that she had suffered two months loss and also towards household activities though she had also stated that she remained indisposed for more than 6 months. There is however nothing to show the same nor to show that she was advised bed rest for six months or two months or that she remained on bed rest for six months. The petitioner has also not filed any advice of the doctor by which she was prescribed rest for any specific period. In the absence of any advice of doctor, notice can be taken of the fact that petitioner may not have been able to perform her avocation for some period. Hence, the petitioner is held entitled to an amount of Rs.20,000/­ for the period she may not have been able to work. Thus the petitioner would be entitled to a total sum of Rs.81,500/­ on account of loss of income.

The total compensation is assessed as under: 

       Medicines and Medical treatment          Rs.5,000/­
       Pain and suffering                       Rs.35,000/­
       Loss of Amenities of life                Rs.20,000/­
       Disfiguration                            Rs.10,000/­
       Conveyance                               Rs.5,000/­
       Special Diet                             Rs.5,000/­
       Attendant charges                        Rs.6,000/­
       Loss of Income                           Rs.81,500/­

       TOTAL                                    Rs.1,67,500/­

Thus the total compensation would be Rs.1,67,500/­.




Suit No. 82/14                                                        Page No. 23 of 30  
Meenakshi Vs. Hansraj & Ors.  
 COMPENSATION IN RESPECT OF THE PETITIONER No.2 ARTI


MEDICINES AND MEDICAL TREATMENT

25. It is the case of the petitioner Arti that due to the accident on 21.06.2013 she fell down on the road and sustained grievous injuries. It was averred that the petitioner and her sister were taken to AIIMS Trauma Center where MLC No. 373554/13 and MLC No.373555/13 were registered respectively. It was averred that due to the injuries sustained by the petitioners they were not able to work in full capacity as they used to before the accident. It was averred that the petitioners had suffered grievous injuries. It was averred that the treatment was still going on of the petitioners and Rs.25,000/­ were incurred on their treatment. The petitioner in paras 2 and 4 of her affidavit Ex.PW1/A had deposed to that effect. PW1 stated that she sustained head injury and also all over her body and in the spine and facial injuries. She stated that she had suffered head injuries with stitches on the right eyebrow which had disfigured her face. She stated that she had also suffered internal injuries of spine which had kept her indisposed for more than 15 days which had resulted into neglecting her house, children and day to day activities. She stated that due to the said accident she was admitted in AIIMS Trauma Centre where she had to spend Rs.5,000/­ on her treatment. She stated that she had to take discharge as there was nobody to take care in the hospital and her husband had to go to attend the job. She stated that the treatment was continuing for a long time, after the accident she had mental trauma and she had not been able to resume her work as well as normal activities and earning till date. She stated that she had spent more than Rs.10,000/­ on her treatment and some of the bills could not be procured due to Suit No. 82/14 Page No. 24 of 30 Meenakshi Vs. Hansraj & Ors.

the emergent situation. Medical records including discharge summary are Ex.PW1/2 (colly). The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and the nature of injuries was opined to be simple. The documents placed on record show that the petitioner had sustained minor head injury. There is however nothing to show that the petitioner had sustained any disability in the accident.

26. During cross­examination by the learned counsel for the respondent No.2 PW1 stated that due to the accident caused she suffered minor head injury along with other injuries over her body. She did not remember the actual medical expenditure incurred volunteered the doctor had advised surgery over the eyebrow but at present she was not getting it done. She admitted that that she had not filed any estimate or advice of doctor to get the surgery done. Thus PW1 herself stated that due to the accident caused she suffered minor head injury along with other injuries over her body. She did not remember the actual medical expenditure incurred and volunteered that the doctor had advised surgery over the eyebrow but at present she was not getting it done. It is pertinent that she admitted that she had not filed any estimate or advice of doctor to get the surgery done and as such there is nothing on record to show that she was advised surgery over the eyebrow or what would be the expenditure on the same. She stated that due to the accident she remained indisposed for 15 days though there is nothing in the documents to show that she was advised bed rest for any particular period. The petitioner had stated that she had spent Rs.5,000/­ on her treatment and at another place stated that she had spent more than Rs.10,000/­ on her treatment. However the petitioner has placed on record bills for an amount of Rs.800/­ only. It cannot be disputed that the Suit No. 82/14 Page No. 25 of 30 Meenakshi Vs. Hansraj & Ors.

petitioner sustained injuries in the accident and underwent treatment for the same. Looking to the injuries the petitioner would be entitled to the amount of the medical bills. The petitioner would have incurred some expenditure on treatment even subsequently. Accordingly, a sum of Rs.1,000/­ (Rs.One Thousand only) is awarded towards medical expenses including the amount of the bills.

27. Note can also be taken of the fact that on account of the accident the petitioner may not have been able to perform her day to day duties towards her family and may not have been able to enjoy the amenities of life and would have undergone pain and suffering. No document has been placed on record regarding expenditure on conveyance, special diet or attendant charges. There is also nothing to show that the injuries of the petitioner were such that she might have to incur extra expenditure on conveyance. However it can be taken note of that she might have had to take special diet for a few days and would have incurred some expenditure towards engaging an attendant.

LOSS OF INCOME

28. It is the case of the petitioner that she is 30 years old and running a beauty parlour and earning Rs.20,000/­ p.m. It was averred that due to the injuries sustained by the petitioner she was not able to work in full capacity as she used to before the accident. PW1 stated that she is self­employed and running a beauty parlour. She stated that she had also suffered internal injuries of spine which had kept her indisposed for more than 15 days which had resulted into neglecting her house, children and day to day activities. She stated that she had suffered losses in her parlour also as she had to keep the parlour closed for the said days and Suit No. 82/14 Page No. 26 of 30 Meenakshi Vs. Hansraj & Ors.

accordingly the loss of earning was Rs.20,000/­ p.m. She stated that she was about 30 years of age at the time of the accident. She stated that the treatment was continuing for a long time, after the accident she had mental trauma and she had not been able to resume her work as well as normal activities and earning till date. She stated that she had suffered two months loss and also towards the household activities. She stated that she was contributing her earning to the members of the family. She stated that she had limited source of income. During cross­examination by the learned counsel for the insurance company - respondent No.2 PW1 stated that she runs a beauty parlour. She stated that she earns around Rs.20,000/­ per month. She denied the suggestion that she does not earn Rs.20,000/­ per month. Thus PW1 reiterated that she runs a beauty parlour and that she earns around Rs. 20,000/­ per month though there is nothing to show the same. During examination by the Tribunal the petitioner stated that she is aged 34 years and runs a parlour and earns Rs.20,000/­ per month. The petitioner has not placed any document on record to show that she was indeed running a parlour or earning Rs.20,000/­ p.m. Even the particulars of the parlour have not been stated and no witness has been produced to depose in that respect.

29. The petitioner had contended that she was indisposed for 15 days though she had also stated that she had suffered two months loss and also towards the household activities. However there is nothing to show the same and there is even nothing on record to show that she was advised bed rest for any particular period. Again no document has been produced to show for how much period the petitioner had to remain on bed rest on account of the injuries sustained in the accident or what was the loss suffered by her. Notice can however be taken of the fact that the Suit No. 82/14 Page No. 27 of 30 Meenakshi Vs. Hansraj & Ors.

petitioner may not have been able to perform her avocation for some period. Hence, the petitioner is held entitled to an amount of Rs.10,000/­ on account of loss of income.

30. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that she acquired any disability on account of the accident or that she is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce her efficiency to work and thereby she would suffer loss of future income. Accordingly the petitioner cannot be held entitled to any amount on account of loss of future income.

31. In the facts and circumstances of the case and in view of the above discussion a lump sum amount of Rs.18,000/­ would be just and reasonable. Accordingly an amount of Rs.18,000/­ is awarded as compensation in favour of the petitioner.

RELIEF

32. The petitioner No.1 Meenakshi is awarded a sum of Rs.1,67,500/­ (Rs.One Lac Sixty Seven Thousand and Five Hundred only) and the petitioner No.2 Arti is awarded a sum of Rs.18,000/­ (Rs.Eighteen Thousand only) along with interest @ 9% per annum from the date of filing of the DAR till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. The entire amount be released to the petitioners. The respondent No.2 is directed to deposit the said amount by way of crossed cheques/ demand drafts in Suit No. 82/14 Page No. 28 of 30 Meenakshi Vs. Hansraj & Ors.

court within 30 days of the award failing which it would be liable to pay interest at the rate of 12% p.a. for the period of delay. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.

APPORTIONMENT OF LIABILITY:

33. The respondent No.1 is the driver cum owner and the respondent No.2 is the insurer of the offending vehicle. Thus the respondents No.1 and 2 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.2. Respondent No.2 i.e. M/s Future Generali India Insurance Co. Ltd. being the insurance company in its reply had admitted that the vehicle No.DL­5CD­9494 was insured with the respondent No.2 at the relevant time i.e. on 21.06.2013 vide policy cover note No.F4446804 for the period from 07.06.2013 to 06.06.2014. There is no evidence on behalf of respondent No.2 to show that there was any violation of the rules and terms of policy by the respondent and in fact the duly verified documents regarding the offending vehicle were placed on record by the IO with the DAR. Hence, the respondent No.2 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondent No.

1. The respondent No.2 being the insurer is directed to deposit the award amount in the court by way of crossed cheques/ demand drafts within 30 days of the passing of the award with interest at the rate of 9% from the date of filing of the DAR till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.

Suit No. 82/14 Page No. 29 of 30 Meenakshi Vs. Hansraj & Ors.

34. Nazir to report in case the cheques are not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.2 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 24.12.2014.

Attested copy of the award be given to the parties free of cost. File be consigned to record room.



Announced in open court
on this 1st day of October, 2014                                  (GEETANJLI GOEL)
                                                                      PO: MACT­2
                                                                        New Delhi




Suit No. 82/14                                                                     Page No. 30 of 30  
Meenakshi Vs. Hansraj & Ors.