Delhi District Court
Smt. Vijay Laxmi Sharma vs Sh. Baljeet Singh on 23 January, 2019
MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5485/16 (Old MACP No. 119/14)
1. Smt. Vijay Laxmi Sharma
Widow of Late Sh. Anand Prakash Sharma
(Widow of deceased)
2. Sh. Vivek Bhardwaj
S/o Late Sh. Anand Prakash Sharma
(Son of deceased)
Both R/o H.No. 75D, Ayodhya Apartments,
Sector - 13, Rohini, Delhi.
3. Sh. Rahul Bhardwaj
S/o Late Sh. Anand Prakash Sharma
R/o Apartment No. 503,
Building 10, Zen Cluster,
Discovery Garden,
Dubai, UAE.
(Son of deceased) .......Petitioners
VERSUS
1. Sh. Baljeet Singh,
S/o Sh. Ram Bhagat,
R/o H.No. 488, Block No. 3,
Pana Dalan,
Gali Sanchi,
Village Palasaedpur,
District Haryana,
Hisar (Driver)
Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 1 of 46
MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019
2. Sh. Mohit Thaman,
S/o Sh. Satish Thaman,
R/o Ward No. 2, Baddi,
Tehsil Nalagarh,
District Solan,
HP(Registered Owner)
3. Reliance General Insurance Co. Ltd.
Sector 145146, Madhya Marg,
Sector - 9,
Chandigarh (Insurer) ........Respondents
AND
MAC Petition No. 5486/16 (Old MACP No. 120/14)
Smt. Vijay Laxmi Sharma
Widow of Late Anand Prakash Sharma
R/o H.No. 75D, Ayodhya Apartments,
Sector - 13, Rohini, Delhi. .......Petitioner
VERSUS
1. Sh. Baljeet Singh,
S/o Sh. Ram Bhagat,
R/o H.No. 488, Block No. 3,
Pana Dalan,
Gali Sanchi,
Village Palasaedpur,
District Haryana,
Hisar (Driver)
Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 2 of 46
MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019
2. Sh. Mohit Thaman,
S/o Sh. Satish Thaman,
R/o Ward No. 2, Baddi,
Tehsil Nalagarh,
District Solan,
HP(Registered Owner)
3. Reliance General Insurance Co. Ltd.
Sector 145146, Madhya Marg,
Sector - 9,
Chandigarh (Insurer) ........Respondents
APPEARENCES
Sh. Mohit Monga, adv for petitioners.
None for respondent no. 1.
Sh. K.R. Sharma, adv for respondent no. 2.
Sh. Sujit Jaiswal, adv for respondent no. 3.
Petition under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD:
1. Vide this common order, I shall dispose of both these claim
petitions with regard to fatal injuries sustained by Anand Prakash Sharma
(MACP No. 5485/16) and injuries sustained by Smt. Vijay Laxmi Sharma
(MACP No. 5486/16) in Motor Vehicular Accident which occurred on
16.12.2013 in between 6:50 hrs to 9:00 hrs at road leading from Bypass to
Burari, Bhalaswa Red Light, Outer Ring Road, Delhi, involving Truck
bearing registration no. HP12C2349 (alleged offending vehicle) being
driven in rash and negligent manner by its driver(R1 herein).
Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 3 of 46
MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019
2. Both these claim petitions were consolidated for the purpose of
recording evidence vide order dated 26.05.2015 passed by Ld.
Predecessor and MACP No. 5485/16 titled as " Vijay Laxmi Sharma &
Ors. Vs. Baljeet Singh & Ors" was treated as the leading case.
Accordingly, the evidence was led on behalf of both the sides in the leading
case for the purpose of both these matters.
FACTS OF THE CASES
3. According to the claim petitions filed in both these cases, on 16.12.13 in between 6:50 am to 9 am, Anand Prakash Sharma (deceased in MACP No. 5485/16) alongwith his wife Smt. Vijay Laxmi Sharma (injured in MACP No. 5486/16) and sisterinlaw, was going from their house to Haridwar in their own car bearing no. DL4CAS3904. The aforesaid car was being driven by their driver namely Motiur Rehman @ Moti. At the time of accident, the aforesaid car was standing near traffic diversion at the place of accident. At the time when the aforesaid car crossed G.T.K. Road Bypass and reached at Red Light signal of Bhalaswa Dairy, the driver of said car and Anand Prakash Sharma, were diverting the traffic as their car had struck against cemented stones kept for traffic diversion on the road due to fog. After sometime, the wife and sisterinlaw of deceased, also started helping the deceased and driver in diverting the traffic on the road. All of a sudden, one truck bearing no. HP12C2349 fully loaded with articles and which was being driven by its driver at very high speed and in rash and negligent manner, came and hit against the aforesaid four persons. As a Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 4 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 result thereof, Anand Prakash Sharma and driver of the car, fell down on the road. Smt. Vijay Laxmi also fell down on the road at some distance. They all were removed to BJRM Hospital, Jahangir Puri, Delhi, where Anand Prakash Sharma died on the same day at 9:30 am, whereas remaining injured were medically examined by the concerned doctor. Postmortem on the body of deceased was got conducted vide PMR No. 1110/13. FIR No. 549/13 u/s. 279/338 IPC was registered at PS. Jahangir Puri with regard to the said accident. It is claimed that said offending vehicle was owned by respondent no. 2 and it was insured with Reliance General Insurance Co Ltd./respondent no. 3 during the period in question.
4. It may be noted here that police had also filed Detailed Accident Report (hereinafter called DAR) on 20.03.2014 corresponding to the investigation carried out in FIR No. 549/13 U/s 279/338 IPC registered at PS. Jahangir Puri with regard to the accident in question.
5. It is averred in MACP No. 5485/16 that Sh. Anand Prakash Sharma (since expired) was aged about 76 years old; he had retired from MCD and was getting monthly pension of Rs. 16,988/ at the time of accident in question. He was also imparting music to the prospering children of the colony and was earning Rs. 20,000/ per month(including pension of Rs. 16,988/). The petitioners have claimed compensation to the tune of Rs. 50,00,000/ (under pecuniary as well as non pecuniary heads) against the respondents.
Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 5 of 46MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019
6. It is averred in MACP No. 5486/16 that petitioner/injured Smt. Vijay Laxmi Sharma was aged about 64 years; she was giving Tuitions and was earning Rs. 18,000/ per month at the time of accident in question. She had sustained grievous injuries and her left leg and right arm were amputated due to the injuries sustained by her in the accident. She claimed to have spent about Rs. 20,00,000/ on her medical treatment. She has claimed compensation to the tune of Rs. 2,00,00,000/ (under pecuniary as well as non pecuniary heads) against the respondents.
7. In his identical but separate WS filed in both these cases, the respondent no. 1 i.e. driver has raised preliminary objections that he was not responsible for the accident and the vehicle which was being driven by him, was not involved in the alleged accident. He claimed that he was having valid DL bearing no. 55200090193125 at the time of accident. He further claimed that the alleged offending vehicle was insured with respondent no. 3, vide policy no. 1302732311001748 having validity upto 24.09.14. On merits, he has simply denied the averments made in the petitions and has prayed for dismissal of the petitions.
8. In his WS, the respondent no. 2 i.e. registered owner has raised preliminary objections that the accident in question was caused due to negligence of vehicle no. DL4CAS3904 and the respondent no. 1 did not cause the accident and he has been falsely implicated in the present case. He further claimed that the petitions are not maintainable due to non Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 6 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 joinder of the parties i.e. driver, owner and insurance company of car bearing no. DL4CAS3904. On merits, he has simply denied the averments made in the petitions and has prayed for dismissal of the petitions.
9. Respondent no. 3/insurance company had filed its legal offer in MACP No. 5485/16, whereby it had offered to pay compensation amount of Rs. 2,50,000/ to the petitioners for fatal injuries suffered by Sh. Anand Prakash Sharma as full and final settlement of the claim raised by them. It had also filed its legal offer in MACP No. 5486/16, whereby it had offered to pay compensation amount of Rs. 3,63,356/ to the petitioner for the injuries suffered by Smt. Vijay Laxmi Sharma as full and final settlement of the claim raised by her. Same were not acceptable to the petitioners.
10. From pleading of the parties, the following issues were framed in MACP No. 5485/16 by Ld. Predecessor vide order dated 16.12.2014 :
1) Whether the deceased Sh. Anand Prakash Sharma sustained fatal injuries in the road accident on 16.12.2013 at about 6:50 am to 9 am at G.T. Karnal Road, Bypass at the Red Light of Bhalaswa Dairy on Outer Ring Road, Delhi, within the jurisdiction of PS. Jahangir Puri, Delhi due to rash and negligent driving of vehicle i.e. truck bearing No. HP12C2349 being driven by respondent no. 1? OPP.
2) Whether the petitioners are entitled to compensation, if so, to what an extent and from which of the respondents? OPP.
Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 7 of 46
MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019
3) Relief.
11. From pleading of the parties, the following issues were framed in MACP No. 5486/16 by Ld. Predecessor vide order dated 16.12.2014 :
1) Whether the petitioner Ms. Vijay Laxmi Sharma, sustained injuries in the road accident on 16.12.2013 at about 6:50 am to 9 am at G.T. Karnal Road, Bypass at the Red Light of Bhalaswa Dairy on Outer Ring Road, Delhi, within the jurisdiction of PS. Jahangir Puri, Delhi due to rash and negligent driving of vehicle i.e. truck bearing No. HP12C2349 being driven by respondent no. 1? OPP.
2) Whether the petitioner is entitled to compensation, if so, to what an extent and from which of the respondents? OPP.
3) Relief.
12. In order to establish their claim, the petitioners have examined nine witnesses i.e. PW1 SI Sukhvir Singh, PW2 Sh. Manish Kumar, Manager, Life Savers Ambulance Services, PW3 Sh. Bhamesh Mittal, Proprietor of Mittal Medicos, DC Chowk, Sector - 9, Rohini, Delhi, PW4 Ms. Anushree Singh, Sales Manager of M/s. Ottobock Healthcare India Pvt. Ltd, PW5 Sh. Pyare Singh, Medical Record Officer, Ganga Ram Hospital, PW6 Smt. Vijay Laxmi Sharma (Widow of deceased Anand Prakash Sharma as Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 8 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 well as injured in connected claim petition), PW7 Sh. Yogesh Goel, Proprietor of M/s. Surya Medicos, Sector - 13, Rohini, Delhi, PW8 Dr. Meenakshi Sidhar, MD (Pathology), BSA Hospital, Delhi and PW9 Ms. Ekta Sharma, Senior Associate Prosthetist and Orthotist, Ottobock Healthcare India Pvt. Ltd. They closed their evidence on 22.05.18 through their counsel. On the other hand, no evidence was adduced by either of the respondents. RE of respondent no. 1 was closed vide order dated 11.09.18 and remaining two respondents i.e. R2 & R3 closed their respective evidence on 22.05.18 and 11.09.18 respectively through their respective counsels.
13. I have already heard the arguments advanced by Ld. Counsels for the parties. Both the sides were directed to submit their respective submissions in Form VIA/VIB vide order dated 08.01.2019 but they have not submitted the same on record till date. My findings on the issues are as under: ISSUE NO. 1 ( IN BOTH THE CASES)
14. For the purpose of this issue, the testimonies of PW1 SI Sukhvir Singh and that of PW6 namely Smt. Vijay Laxmi Sharma are relevant. According to the claim set up by the petitioners, PW6 alongwith deceased Anand Prakash Sharma and her sister namely Mrs. Raj Lakshmi were going from their house to Haridwar in their own car no. DL4CAS3904 Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 9 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 which was being driven by their driver namely Motiur Rehman @ Moti. PW6 is also claimed to have sustained injuries due to the accident in question.
15. PW1 is the IO of criminal case arising out of FIR No. 549/13 (supra) registered at PS. Jahangir Puri with regard to the accident in question. He deposed that during investigation of said case, he had recorded statements of several witnesses including that of Ms. Vijay Laxmi Sharma. He had also verified relevant documents of driver, owner, victims and that of insurance of the alleged offending vehicle and thereafter, he had filed DAR Ex. PW1/1(colly). During his crossexamination on behalf of respondent no. 2, he deposed that he had not prepared site plan in this case. He had recorded statements of Smt. Vijay Laxmi as well as that of driver of the car at their respective residence. He denied the suggestion that accident was caused due to negligence of car driver or that he did not properly investigate the case or that he had falsely implicated respondent no. 1 at the instance of claimants. Respondents no. 1 & 3 preferred not to crossexamine this witness despite grant of opportunity.
16. In her evidence by way of affidavit(Ex. PW6/A), PW6 has deposed on the lines of averments made in the claim petitions to the effect that on 16.12.13 in between 6:50 am to 9 am, she alongwith her husband namely Sh. Anand Prakash Sharma and sister, was going from their house to Haridwar in their own car bearing no. DL4CAS3904. The aforesaid car was being driven by their driver namely Motiur Rehman @ Moti. At the time Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 10 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 of accident, the aforesaid car was standing near traffic diversion at the place of accident. At the time when the aforesaid car crossed G.T.K. Road Bypass and reached at Red Light signal of Bhalaswa Dairy, the driver and her husband were diverting the traffic as their car had struck against cemented stones kept for traffic diversion on the road due to fog. After sometime, she and her sister also started helping her husband and driver in diverting the traffic on the road. All of a sudden, one truck bearing no. HP12C2349 fully loaded with articles and which was being driven by its driver at very high speed and in rash and negligent manner, came and hit against them. As a result thereof, her husband and driver of the car, fell down on the road. She also fell down on the road at some distance. They all were removed to BJRM Hospital, Jahangir Puri, Delhi, where her husband namely Sh. Anand Prakash Sharma died on the same day at 9:30 am. They were medically examined by the concerned doctor. FIR No. 549/13 u/s. 279/338 IPC was registered at PS. Jahangir Puri with regard to the said accident. She has relied upon the following documents: Serial Description of Remarks No. documents 1. Copy of her MLC Ex. PW6/1 2. MLC of deceased Ex.PW6/2
3. PM Report of deceased Ex.PW6/3
4. Death Certificate of Ex. PW6/4 deceased
5. Her discharge summary Ex. PW6/5(colly) and followup advise Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 11 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 sheet/record
6. Original medical Ex. PW6/6(colly) documents
7. Details regarding artificial Ex. PW6/7 leg
8. Estimate in respect of Ex. PW6/8 artificial leg
9. Disability Certificate Ex. PW6/9
10. Documents of identity and Ex. PW6/10 residence address
11. Certificate/bill issued by Ex. PW6/11 Nurse showing the expenditure
12. Copy of passbook of Ex. PW6/12 deceased Anand Prakash Sharma
13. Criminal case record and Ex. PW1/1, Ex.
medical treatment PW2/2 to Ex. PW2/7,
record/bills Ex. PW3/1, Ex.
PW4/2 to Ex. PW4/9
and Ex. PW5/1
17. During her crossexamination on behalf respondent no. 2, she denied the suggestion that truck bearing registration no. HP12C2349 did not cause the alleged accident. She further denied the suggestion that the accident was caused due to fast driving of car no. DL4CAS3904 by its driver who could not control the speed of said car and hit against the divider/stones lying on the road. She did not remember as to whether they had put any barricade for the purpose of diverting the traffic or not. There Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 12 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 was heavy traffic on the road. Her statement was recorded by the police at her house. She admitted that she had not seen the truck before the accident as there was dense fog. Respondent no. 1 did not crossexamine this witness. Respondent no. 3 did not crossexamine this witness on this aspect at all.
18. It is evident from the testimony of PW6 that the respondents could not impeach her testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of cross examination. Even otherwise, the testimony of said witness inspire confidence as she herself is also shown to have sustained injuries due to the accident. FIR in the present case has been registered on the basis of statement of Smt. Raj Laxmi W/o Sh. Bhushan Sharma, who is her sister and she has disclosed therein the same sequence of facts leading to the accident as deposed by PW6 during the course of inquiry. Hence, there is no reason to disbelieve her uncontroverted testimony on the point of accident in question being caused by respondent no. 1 while driving truck No. HP12C2349 in rash and negligent manner.
19. It is pertinent to note that the respondent no.1/driver of aforesaid truck, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 13 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 accident in question occurred due to rash and negligent driving of truck bearing no. HP12C2349 by him.
20. Moreover, it is an undisputed fact that FIR No. 549/13 u/s 279/338 IPC was registered at PS. Jahangir Puri with regard to accident in question. Copy of said FIR(which is part of DAR Ex. PW1/1 colly), would show that same was registered on the basis of statement of Smt. Raj Laxmi wherein she has attributed the entire negligence on the part of driver of truck in causing the accident in question. Furthermore, said FIR is shown to have been registered on 16.12.2013 i.e. on the date of accident itself. Thus, there is no possibility of false implication of respondent no. 1 and / or false involvement of truck No. HP12C2349 at the instance of the petitioners.
21. Not only this, the respondent no. 1 namely Baljeet Singh (accused in State case) has been charge sheeted for the offences punishable U/s 279/337/338/304A 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 vehicle bearing no. HP12C2349 by him. Same would also point out towards rash and negligent driving of truck no. HP12C2349 by respondent no. 1.
22. Copy of MLCs (Ex. PW6/1 & Ex. PW6/2) of injured namely Smt. Vijay Laxmi Sharma and of deceased Anand Prakash Sharma, would Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 14 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 show that they had been removed to BJRM Hospital with alleged history of RTA on 16.12.13 at 8:05 am. They are shown to have sustained multiple injuries as mentioned therein. Not only this, postmortem was got conducted on the body of deceased Anand Prakash Sharma. Copy of PM Report (Ex. PW6/3) would show that cause of death of Anand Prakash Sharma is opined due to hemorrhagic shock consequent upon visceral and multiple injuries. All the injuries were antemortem, fresh and could be possible in road traffic accident. The injuries as mentioned in the relevant column of external injuries of the said report, are also consistent with the injuries which are sustained in road traffic accident. Again, there is no challenge to the aforesaid documents from the side of respondents including insurance company.
23. Further, copy of mechanical inspection report dated 19.12.2013 (which is part of DAR Ex. PW1/1 colly) of truck No. HP12C2349, would show fresh damages i.e. its front left side body and bumper from corner were damaged; its front right side bumper and body corner were bended; its front both wheel tie rod were bended and its left side headlight glass was also found broken. Likewise, copy of mechanical inspection report dated 19.12.2013 (which is also part of DAR Ex. PW1/1 colly) of car bearing no. DL4CAS3904 of victims, would show that its front bumper and body were damaged from right side; its right side headlight bracket was damaged; its front right side wheel rim, tyre and suspension were damaged; its rear right Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 15 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 side body, bumper and tail light were damaged; its rear door was damaged from right side; its rear windscreen glass was broken and its right side rear door was also found bended. Said documents have not been disputed by the respondents and corroborate the ocular testimony of PW6 to the aforesaid extent. Moreover, the offending truck is shown to have been seized from the place of accident. This fact gets strengthened from the copy of seizure memo dated 06.12.13 (date of accident also being 06.12.13) (which is also part of DAR Ex. PW1/1 colly).
24. Moreover, in response to notice U/s 133 M.V Act (which is part of DAR Ex. PW1/1 colly) served upon respondent no. 2 i.e. regd owner of truck bearing no. HP12C2349, he gave written reply that said vehicle was being driven by Sh. Baljeet Singh (R1) on 16.12.13. Same would also corroborate the testimony of PW6 to the extent that the aforesaid vehicle was being driven by respondent no. 1 at the time of accident.
25. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of pre ponderence of probabilities that Anand Prakash Sharma had sustained fatal injuries, whereas petitioner Vijay Laxmi Sharma had sustained injuries in the road accident which took place on 16.12.2013 in between 6:50 hrs to 9 hrs at Outer Ring Road, Road leading towards Bypass to Burari, Bhalaswa Red Light, Delhi, due to rash and negligent driving on the part of driver of truck No. HP12C2349. Thus, this issue is Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 16 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 decided in favour of petitioners and against the respondents in both these claim petitions.
ISSUE NO.2
26. 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.
Compensation in MACP No. 5485/16 (Deceased Anand Sharma) LOSS OF DEPENDENCY
27. As already stated above, the claimants/petitioners are the widow and two sons of deceased. PW6 Smt. Vijay Laxmi Sharma has deposed in her evidence by way of affidavit(Ex. PW6/A) that Sh. Anand Prakash Sharma was working in MCD, from where he had retired as Public Relation Officer and was getting monthly pension of Rs. 16,988/ at the time of accident. She further deposed that deceased was also imparting music to the prospering children in the locality, from where he was earning Rs. 3,000/ per month. During her cross examination on behalf of respondent no. 3, she deposed that she had two married sons at the time of accident. She was residing with her elder son and his family at the time of accident. She could not say as to whether she was getting pension from the employer Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 17 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 of her deceased husband or not and same may be received by her in the bank account. She denied the suggestion that she herself and her husband were not working or were not earning any amount at the time of accident and they were being looked after by their children. Respondent no. 1 did not crossexamine this witness. Respondent no. 2 did not crossexamine this witness on this aspect at all.
28. After referring to the testimony of PW6, counsel for petitioners vehemently argued that since monthly pension of deceased was Rs. 16,988/ per month at the time of accident, said amount should be considered for the purpose of calculating the loss of dependency. On the other hand, it was argued on behalf of insurance company that no cogent evidence has been led on behalf of claimants on this aspect. He further argued that no witness from the office of employer of deceased has been examined during the course of inquiry. Thus, the claimants have failed to prove that deceased was earning anything at the time of accident.
29. Having given my thoughtful consideration to the rival submissions made on behalf of both the sides in the light of evidence, ocular as well as documentary, as available on record, I find that relevant portion of the testimony of PW6 whereby she testified that deceased had retired from MCD and was getting monthly pension of Rs. 16,988/ at the time of accident, has gone unchallenged and unrebutted from the side of respondents. Mere bald suggestion has been put to the witness on behalf of Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 18 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 insurance company that deceased was not earning any amount at the time of accident, which ofcourse has been denied by the witness. Apart from this, PW6 has relied upon bank passbook(Ex. PW6/12) of deceased Anand Prakash Sharma, wherein pension @ Rs. 16,988/ per month have been credited during the months of November 2013 and December 2013. Same would clearly corroborate the ocular testimony of PW6 in this regard. It is also relevant to note that the respondents, more particularly insurance company, have not led any evidence in rebuttal on the aforesaid aspect. It was not difficult for them to summon the relevant official from the office of MCD in case they were disputing the aforesaid facts. Hence, I am of the view that the claimants have been able to establish on the basis of pre ponderance of probabilities that deceased was getting monthly pension of Rs. 16,988/ at the time of accident. However, the relevant part of the testimony of PW6 that deceased was imparting music to prospering children in the locality and was earning Rs. 3,000/ per month therefrom, could not be substantiated as the claimants have failed to lead any cogent or definite evidence to prove the same. Mere bald testimony of PW6 in this regard, would not be sufficient to accept that deceased was also earning that much amount from the said avocation at the time of accident. Hence, the monthly earnings of deceased at the time of accident, is accepted as Rs. 16,988/ in order to compute the loss of dependency.
30. It may be noted that in copy of Voter I Card (Ex. PW6/10) of deceased, his age is mentioned as 68 years as on 01.01.05. Date of Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 19 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 accident is 16.12.13. Thus, his age was about 77 years at the time of accident. Thus, the multiplier of 5 would be applicable 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.
31. Considering the fact that there was one dependent at the time of accident(both the sons of deceased being already married and thus, can not be termed as financially dependent), there has to be deduction of 1/2 as held in the case of Pranay Sethi mentioned supra. Thus, the total of loss of dependency would come out to Rs. 5,09,640/(Rs. 16,988/ X 1/2 X 12 X 5).
LOSS OF LOVE & AFFECTION
32. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra, has been pleased to observe in para 18 of the judgment that the Constitution Bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 20 of 46MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 LOSS OF CONSORTIUM
33. In view of celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned Supra a sum of Rs. 40,000/ is awarded in favour of petitioner no. 1 Smt. Vijay Laxmi Sharma (being widow of deceased) towards loss of consortium.
LOSS OF ESTATE & FUNERAL EXPENSES
34. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioner on account of loss of estate and funeral expenses.
The total compensation is assessed as under:
1. Loss of dependency Rs. 5,09,640/
2. Loss of consortium Rs. 40,000/
2. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 5,79,640/ Rounded off to Rs. 5,80,000/ Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 21 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 Compensation in MACP No. 5486/16(Injured Vijay Laxmi Sharma) MEDICAL EXPENSES
35. PW3 Sh. Bhamesh Mittal is the proprietor of Mittal Medicos, running Chemist Shop. He deposed that bill dated 28.12.13 (Ex. PW3/1) was issued by him in favour of Ms. Vijay Laxmi. During his cross examination on behalf of respondent no. 2, he deposed that he had not brought bill book containing carbon copy of aforesaid bill but volunteered that he could produce the same. He denied the suggestion that no such bill was issued by him. Respondents no. 1 & 3 preferred not to examine this witness despite grant of opportunity.
36. PW4 Ms. Anushree is the officer of M/s. Ottobock Healthcare India Pvt. Ltd. She produced authority letter (Ex. PW4/1) in her favour and deposed that bills Ex. PW4/2 to Ex. PW4/9 were issued by her said company which deals in artificial limbs, hands and legs and said artificial implants have two years warranty and average life of 34 years. She also deposed that service cost of prosthesis is around Rs. 40,000/ to Rs. 50,000/ annually. However, the testimony of this witness remained incomplete as she did not appear on subsequent date during the course of inquiry. In her place, PW9 Ms. Ekta Sharma, Sr. Associate Prosthetist and Orthotist of same company, appeared as witness. She produced authority letter Ex. PW9/1 in her favour. She testified that Ms. Vijay Laxmi had purchased Prosthesis in respect of right upper limb from her company vide bill dated 14.07.17 of Rs. 2,09,000/. She exhibited the said bill as Ex.
Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 22 of 46MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 PW9/2(which was previously exhibited as Ex. PW4/5). She also deposed that said patient had also purchased Prosthesis in respect of left lower limb from her company vide bill dated 17.04.14 of Rs. 1,09,250/. She exhibited the said bill as Ex. PW9/3(which was previously exhibited as Ex. PW4/6). She also exhibited receipts regarding advance payment as Ex. PW9/4(colly)(which were previously exhibited as Ex. PW4/2 to Ex. PW4/9). She also produced relevant bills regarding purchase of cosmetic stockings and accessories for artificial limbs by said patient from her company and exhibited those bills as Ex. PW9/5(colly). During her crossexamination on behalf of insurance company, she deposed that there was fixed price list in respect of different prosthesis manufactured and sold by their company and those prices keep on revising from time to time but she did not produce said price list for the year 2014. However, she admitted that prices in respect of such kind of prosthesis may vary from one manufacturing company to another. Respondents no. 1 & 2 preferred not to crossexamine this witness despite grant of opportunity.
37. PW5 Sh. Pyare Singh is the Medical Record Officer of Sir Ganga Ram Hospital. He produced medical treatment record and medical bills concerning victim Smt. Vijay Laxmi Sharma. He deposed that said patient remained admitted in said hospital from 16.12.13 to 28.12.13. He exhibited the treatment record and medical bills as Ex. PW5/1(colly). He has not been crossexamined at all on behalf of the respondents.
Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 23 of 46MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019
38. PW7 Sh. Yogesh Goel is the proprietor of M/s. Surya Medicos, running Chemist Shop. He produced relevant cash memo book for the period from 16.06.14 to 25.06.14 and deposed that as per said record, cash memo dated 20.06.14 (which is part of Ex. PW6/6 colly) of Rs. 8,820/ was issued by him. He also deposed that cash memo nos. 625, 3405, 3429 and 3459, which were part of Ex. PW6/6(colly), were also issued by his shop and same were in his handwriting. During his crossexamination on behalf of insurance company, he denied the suggestion that aforesaid bills were not issued by him. Respondents no. 1 & 2 preferred not to examine this witness despite grant of opportunity.
39. PW6 Smt. Vijay Laxmi Sharma i.e. injured herself, has deposed in her evidence by way of affidavit(Ex. PW6/A) that after the accident, she was taken to BJRM Hospital, Jahangir Puri, where she was medically examined. Thereafter, she was shifted to Sir Ganga Ram Hospital, where she remained admitted from 16.12.13 till 28.12.13. She also deposed that even after her discharge from the said hospital, she visited the said hospital on OPD basis. She further deposed that her left leg and right hand were amputated due to the injuries sustained by her in the accident. She deposed to have spent considerable amount on her treatment. She also deposed that since her left leg and right hand were amputated, same were fitted with artificial limbs after purchasing the same from M/S Ottobock Healthcare India Pvt. Ltd. She also deposed that she had sustained permanent disability to the tune of 84% in relation to left lower limb and Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 24 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 right upper limb as per Disability Certificate(Ex. PW6/9) issued by Disability Board of BSA Hospital. She has relied upon medical bills (Ex. PW3/1, Ex. PW5/1, Ex. PW6/5 colly & Ex. PW6/6 colly). During her crossexamination on behalf of insurance company, she deposed that she did not get reimbursement of her medical bills from her employer. Her husband was also not having medical reimbursement facility from his employer. She denied the suggestion that since they were having medical reimbursement facilities from their employers, photocopies of medical bills and treatment record were filed by her or that her medical expenses were reimbursed by their employers. She also denied the suggestion that relevant record relating to cost of artificial limbs as filed on record, were inflated. Respondents no. 1 & 2 did not crossexamine this witness on this aspect.
40. It is evident from the aforesaid discussion that the respondents could not create any doubt on the authenticity and genuineness of aforesaid medical bills. They have also not led any evidence in rebuttal. The injured has filed medical bills including bills regarding purchase of her implants and accessories thereof, to the tune of Rs. 9,84,628/ only. Accordingly, a sum of Rs. 9,84,628/ is awarded to her under this head.
LOSS OF INCOME
41. Injured namely Smt. Vijay Laxmi Sharma(PW6) has categorically deposed in her evidence by way of affidavit (Ex PW6/A) that Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 25 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 she was 64 years old; she has done M.Ed and she was self employed before the accident. She further deposed that she was imparting education thereby preparing the children of Navhind Senior Secondary School, Karol Bagh, Delhi for debates and was getting remuneration from the students who were attending the classes and was earning Rs. 18,000/ per month at the time of accident. She also deposed that besides providing pecuniary support, she was also rendering household services to her family. She further deposed that due to the injuries sustained by her, she could not do her work for a considerable period and suffered loss of income to the tune of Rs. 2,16,000/per annum. During her crossexamination on behalf of insurance company, she admitted not to have filed any document concerning her educational qualification. She deposed that she did not have any document to show that she used to give training for debate etc to students. She had retired from Nav Hind Senior Secondary School on 12.08.11 i.e. before the date of accident and was getting monthly pension of Rs. 16,000/ at the time of retirement but could not disclose her monthly pension at the time of accident.
42. However, it may be noted that as per affidavit(which is part of DAR Ex. PW1/1 colly) of petitioner/injured Smt. Vijay Laxmi Sharma filed alongwith DAR, she claimed to have retired as PGT(Hindi) and was getting monthly pension of Rs. 21,008/ at the time of accident. In order to substantiate the said plea, the petitioner has also filed copy of her bank account statement, wherein it is reflected that a sum of Rs. 21,008/each Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 26 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 was credited in her bank account on 28.10.13 & 28.11.13. The date of accident is 16.12.13. Moreover, relevant suggestions have been put to claimant examined as PW6, from the side of insurance company that she was having medical reimbursement facility from her employer and her medical bills were reimbursed to her by her employer, which would clearly show that even the respondents, more particularly the insurance company, are also admitting this fact that she was retired teacher from aforesaid school and was getting monthly pension from her employer. That being so, it is held that the petitioner has been able to establish that she was getting monthly pension of Rs. 21,008/ at the time of accident. At the same time, she could not prove her claim of preparing children for debate and earning Rs. 18,000/ per month from the said avocation, at the time of accident. As already noted above, she admitted not to have any documentary proof in that regard. She also failed to examine any student or his/her parent to whom any such training would have been given by her, during the course of inquiry. Her bald testimony in this regard can not be treated as gospel truth and thus, same would not be sufficient to accept that she was actually earning any such amount from said avocation. Accordingly, it is held that the monthly earning of petitioner would be taken as Rs. 21,008/ at the time of accident for computing the compensation amount under relevant heads.
43. The medical treatment record (Ex. PW5/1 colly) of Ganga Ram Hospital in respect of petitioner, would reveal that she had sustained crush injury of right forearm and traumatic amputation of left lower limb. Her Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 27 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 medical treatment is shown to have continued for considrable period. She remained admitted in the aforesaid hospital from 16.12.13 to 28.12.13. Not only this, she has suffered below knee amputation of left lower limb and below elbow amputation of her right upper limb. She is also shown to have sustained permanent disability to the extent of 84% in relation to her left lower limb and right upper limb as per her disability certificate(Ex. PW6/9) issued by Disability Board of BSA Hospital and in view of ocular testimony of PW8 Dr. Minakshi Sidhar of said hospital. After considering the entire medical treatment record of petitioner as availabile on record and keeping in view the permanent disability to aforesaid extent as sustained by her, it is presumed that she would not have been able to work at all atleast for a period of 2 years. Hence, a sum of Rs. 5,04,192/(Rs. 21,008/ X 24 months) is awarded to the petitioner under this head.
PAIN AND SUFFERING
44. 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 this purpose, the Claims Tribunal and Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 28 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 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".
45. Injured herself as PW6 has deposed in her evidence by way of affidavit(Ex PW6/A) that her left leg and right hand were amputated due to the injuries sustained by her in the accident. She further deposed that since her left leg and right hand were amputated, same were fitted with artificial limbs. She also deposed that she had sustained permanent disability to the tune of 84% in relation to left lower limb and right upper limb as per Disability Certificate(Ex. PW6/9) issued by Disability Board of BSA Hospital. Said part of her testimony is duly corroborated from her medical treatment record(Ex. PW5/1 colly), disability certificate (Ex. PW6/9) and ocular testimony of PW8. Moreover, said documentary evidence as well as ocular evidence have also remained unchallanged and uncontroverted from the side of respondents. In view thereof, one can see that she would have undergone great physical sufferings and mental shock on account of the accident in question.
46. In the case titled as "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, claimant had suffered disability of 50% in relation to right upper limb and Hon'ble Delhi High Court had awarded compensation of Rs. 1,50,000/ each under the heads of Pain & Suffering and Loss of amenities and enjoyment of life. Taking guidance Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 29 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 from the said decision and keeping in view the medical treatment record of petitioner available on record and after considering the fact that the petitioner herein has suffered permanent disability of 84% in relation to her left lower limb and right upper limb, I hereby award a sum of Rs. 3,50,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
47. As already mentioned above, there is sufficient evidence on record to establish that left leg and right hand of petitioner/injured were amputated due to the injuries sustained by her in the accident. She further deposed that since her left leg and right hand were amputated, same were fitted with artificial limbs. She also deposed that she had sustained permanent disability to the tune of 84% in relation to left lower limb and right upper limb as per Disability Certificate(Ex. PW6/9) issued by Disability Board of BSA Hospital. Said part of her testimony is duly corroborated from her medical treatment record(Ex. PW5/1 colly), disability certificate (Ex. PW6/9) and ocular testimony of PW8. Thus, she would not have been able to enjoy general amenities of life after the accident in question and her quality of life has been definitely affected. In view of the nature of injuries suffered by her and her continued treatment for considerable period, I award a notional sum of Rs. 3,50,000/ towards loss of general amenities and enjoyment of life to the petitioner.
Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 30 of 46MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
48. PW6 has deposed in her evidence by way of affidavit (Ex. PW6/A) that she had incurred considerable amount on conveyance charges by hiring the service of ambulance for going to hospital for her checkup. For the said purpose, she has examined PW2 Sh. Manish Kumar, Manager of Life Savers Ambulance Services. Said witness produced his I card, copy of which was exhibited as Ex. PW2/1. He deposed that bills Ex. PW2/2 to Ex. PW2/7 were issued by them for providing ambulance service to Smt. Vijay Laxmi. During his crossexamination on behalf of respondent no. 2, he admitted not to have prepared those bills himself but explained that same were prepared by their technician. He also explained that since separate bill books are maintained for each ambulance, that is why, registration numbers of ambulance were not separately mentioned in those bills. He denied the suggestion that those bills were manipulated or were subsequently raised in order to favour the petitioner. He has not been crossexamined on behalf of respondents no. 1 & 3 despite grant of opportunity.
49. It is quite evident from the aforesaid discussion that the respondents have not been able to create any doubt on the authenticity and genuineness of the aforesaid bills of ambulance service availed by petitioner. She has relied upon ambulance bills (Ex. PW2/2 to Ex. PW2/7) amounting to Rs. 17,200/. Apart from this, she also deposed that she had spent considerable amount on special diet. However, she has failed to lead Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 31 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 any cogent evidence on record in this regard. She also deposed that she had employed one lady who is taking care of her and is providing her nursing facility and she is charging Rs. 900/ per day for rendering such services. She further deposed that she is expected to incur around Rs. 85,41,000/ on the said attendant during her life time. During her cross examination on behalf of insurance company, she disclosed the name of her attendant as Ms. Anju and also claimed to have filed one document/receipt(Ex. PW6/11), in order to show that she had been making payment at the said rate to said attendant.
50. Counsel for claimant vehemently argued that in view of Ex. PW6/11, it is proved that the petitioner is availing services of attendant at the rate of Rs. 900/ per day and urged that appropriate amount for attendant charges for future period of 20 years at the said rate, should be awarded to her. On the other hand, counsel for insurance company vehemently argued that no evidence whatsoever has been led by claimant in this regard and at the most, notional amount may be awarded to her for the period during which she was not able to work at all immediately after the injuries were sustained by her due to the accident.
51. Although, the claimant has relied upon receipt Ex. PW6/11 purportedly issued by Ms. Ashly Mathew claiming therein that she was providing nursing care facility to Smt. Vijay Laxmi w.e.f 30.12.13 and was charging Rs. 900/ per day from her but, I am not inclined to consider the Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 32 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 said document while awarding the compensation under this head as neither said attendant has been produced as a witness during course of inquiry nor any document/receipt regarding payment of amount at the aforesaid rate to her, has been placed on record what to say of being proved during the course of inquiry.
52. Nevertheless, it cannot be overlooked that left leg and right hand of petitioner/injured were amputated due to the injuries sustained by her in the accident. She has deposed that she had sustained permanent disability to the tune of 84% in relation to left lower limb and right upper limb as per Disability Certificate(Ex. PW6/9) issued by Disability Board of BSA Hospital. Thus, she would have taken special rich protein diet for her speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for her regular check up & follow up during the period of her medical treatment. She would have been definitely helped by some person either outsider or from her family, to perform her daily activities. Since she would have been confined to bed, there would have been necessity to employ one maid to perform daily household chores and also to look after the petitioner on day to day basis at least for the assumed period of 2 years during which she was not able to work at all. In these facts and circumstances, I am of the opinion that attendant charges equivalent to minimum wages of an unskilled person for a period of two years should be awarded to the petitioner. The minimum wages of an unskilled worker as on Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 33 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 the date of accident which is 16.12.13, were Rs. 8,086/ per month. Accordingly, a sum of Rs. 1,94,064/ (Rs. 8,086/ X 24 months) is awarded on account of attendant charges to the petitioner. Although, the petitioner also claimed compensation amount on account of attendant charges for future period of her life but I am not inclined to award any such amount for the reason that after installation of artificial limbs, it can not be said that she would still require the services of one attendant round the clock during her life time.
53. Apart from the bills of ambulance services, the petitioner would have also incurred considerable amount while visiting the hospital on OPD basis concerning her medical treatment as well as for purchase of medicines. Keeping in view the overall facts and circumstances of the case, I hereby award a notional sum of Rs. 25,000/ (including a sum of Rs. 17,200/ in respect of ambulance service) for conveyance charges and a notional sum of Rs. 25,000/ for special diet to the petitioner.
LOSS OF FUTURE INCOME
54. As already stated above, the petitioner is shown to have sustained 84% permanent disability in relation to her left lower limb and right upper limb. Same is quite evident from Disability Certificate dated 02.07.15 of Medical Board of BSA Hospital, Rohiini, Delhi. The petitioner has also testified in this regard while examining herself as PW6 during Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 34 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 inquiry. She has not been crossexamined by the respondents on this aspect.
55. As per the testimony of PW8 Dr. Meenakshi Sidhar, the petitioner was found to have suffered 84% permanent disability in relation to left lower limb and right upper limb. She has testified that Disability Certificate(Ex. PW6/9) was issued by the Disability Board of BSA Hospital. She deposed that Medical Board of BSA Hospital had assessed the disability of the said patient to be permanent in nature and same was not likely to improve. She also produced the calculation chart prepared at the time of assessment of her disability and exhibited copy thereof as Ex. PW8/1. She further deposed that the aforesaid patient had suffered amputation below elbow in respect of her right upper limb and below knee in relation to left lower limb. Respondents did not crossexamine this witness despite grant of opportunity.
56. The disability certificate(Ex. PW6/9) of injured would reveal that she had suffered 84% permanent disability in relation to her left lower limb and right upper limb. It is mentioned therein that her case was that of below knee amputation of left lower limb and below elbow amputation right upper limb. It is relevant to note that the petitioner had retired as PGT(Hindi) from government aided school at the time of accident. Same is quite evident from the ocular testimony of PW6 and the affidavit (which is part of DAR Ex. PW1/1 colly) filed on record. Apart from the fact that it would not be Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 35 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 possible for petitioner to engage herself in any kind of avocation requiring movements of upper and lower limbs, it is also important to note that her right upper limb below elbow, has been amputated. It is a matter of common knowledge that normally a person is right handed person. There is nothing on record to show that petitioner herein is not right handed person. That being so, she would not be able to perform even her day to day activities like taking bath, changing clothes, eating food, ironing of clothes etc. Keeping in view the overall facts and circumstances of the case including the nature of injuries sustained by petitioner and her nature of work at the time of accident, her functional disability is taken as 84% with regard to whole body. (Reliance placed on "IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.2018, "Oriental Insurance Company Limited Vs. Manjeet Singh & Ors.", MAC APP No. 359/09, decided on 10.04.17 and "Reliance General Insurance Company Limited Vs. Malti Devi & Ors.,", MAC APP No. 572/12, decided on 20.05.15, by Hon'ble Delhi High Court).
57. In copy of Voter I Card (Ex. PW6/10) of petitioner, her age is mentioned as 55 years as on 01.01.2005. The date of accident is 16.12.2013. In view of said document, her age was about 64 years as on the date of accident. Hence, the appropriate multiplier would be 7 in this case.
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58. It has been argued on behalf of insurance company that the petitioner has not suffered any loss of income after the accident as she was retired teacher and is getting monthly pension from her employer. Hence, no compensation should be awarded to the injured under this head. Per contra, it has been argued on behalf of petitioner that she is entitled to compensation under this head as she would not be able to effectively do any avocation after her retirement from the service. However, it has been fairly conceded during the course of arguments that the petitioner has been getting the pension from her employer.
59. Similar question directly arose for consideration before Hon'ble Delhi High Court in recent case titled as "Raj Kumar Malik Vs. United India Insurance Company Limited & Ors., bearing MAC APP No. 161/2011 decided on 10.10.17. In the said matter, the injured/appellant was a government servant and had suffered permanent disability to the extent of 74% in relation to right upper limb. While dealing with the contention raised on behalf of claimant that no compensation for loss of earning capacity in future has been awarded, Hon'ble Delhi High Court held in para 5 of the order that loss of earning capacity post retirement, had to be considered by the award of compensation and for such purposes, the Tribunal could adopt the multiplier of 9. It further held that in such calculation, however, it would also need to be kept in mind that the claimant would have earned 50% of the last emoluments drawn as pension and thus, the consequent functional disability will have to make up for the loss against Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 37 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 the balance. Similar view has been taken by Hon'ble Delhi High Court in "National Insurance Co. Ltd. Vs. Hari Om Const. & Ors., bearing MAC APP No. 464/2011 decided on 03.11.17.
60. Now, turning back to the facts of the present case. As already noted above, the petitioner had retired as PGT(Hindi) from government aided school. As per her bank account statement (which is part of Ex. PW6/12 colly), she was getting monthly pension of Rs. 21,008/ at the time of accident. In the absence of last drawn salary amount of petitioner being available on record, her monthly pension is being taken into consideration for calculating loss of future income. Applying the ratio of law discussed by Hon'ble Delhi High Court in the above cited decisions, the loss of future income of petitioner comes out to Rs. 14,82,325/ (rounded off)(Rs. 21,008/ X 84/100 X 12 X 7). Thus, a sum of Rs. 14,82,325/ is awarded in favour of petitioner under this head.
COMPENSATION TOWARDS EXPENSES FOR FUTURE TREATMENT
61. PW6 Smt. Vijay Laxmi Sharma has deposed in her evidence by way of affidavit (Ex. PW6/A) that her left leg and right hand were amputated and were fitted with artificial limbs, which she had purchased from M/s. Ottobock Health Care India Pvt. Ltd. She further deposed that the aforesaid artificial leg has average life of 4 years and after every four years, same need to be replaced and the estimated cost for the same is Rs. 8,00,000/.
Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 38 of 46MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 For the said purpose, she has examined PW9 who is Prosthetis and Orthotist of company which manufactures artificial limbs. Said witness deposed that injured Vijay Laxmi is required to get herself examined on annual basis and the relevant parts of right upper limb prosthesis as well as that of left lower limb prosthesis, are required to be replaced depending upon their condition. She further deposed that the aforesaid prosthesis have an average life of 34 years but their life might be increased upto 56 years depending upon maintenance thereof by the patient as per the advise given to patient by them. During her crossexamination on behalf of insurance company, she deposed that it was quite possible that price list of such kind of prosthesis manufactured by different companies may vary from company to company. She denied the suggestion that the average life of the aforesaid type of prosthesis as purchased by aforesaid patient, was more than 910 years or so. She further denied the suggestion that the aforesaid bills were issued by their company by inflating the price of prosthesis at the instance of aforesaid patient and her family members. Respondents no. 1 & 2 did not crossexamine this witness despite grant of opportunity.
62. Counsel for claimant vehemently argued that in view of testimony of PW9, it stands proved that claimant would require to incur Rs. 3,18,000/after every 45 years and would also have to incur a further amount of Rs. 1,00,000/ towards surgery for installation of her artificial limbs. He therefore urged that by taking the average life of claimant to be Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 39 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 84 years and the inflation factor into consideration, a sum of Rs. 12,54,000/ should be awarded to her under this head. On the other hand, counsel for insurance company argued that no such amount should be awarded under this head as there is no evidence in this regard led on behalf of claimant.
63. After bestowing my thoughtful consideration to the respectful submissions made on behalf of both the sides, I find substance in the submission made on behalf of claimant to the extent that some notional amount should be awarded to her on account of expenses to be incurred by her in future for replacement of her artificial limbs and for their annual maintenance. It is pertinent to note that the age of petitioner was 64 years at the time of accident and she has already got her artificial limbs installed once from the company of PW9, for which compensation amount regarding purchase as well as for installation of those artificial limbs has already been awarded under the head of medical expenses. Considering the average life of a person, it is presumed that she would require to get those artificial limbs replaced at least for one or two times in the future during her life time. The respondents have not led any evidence in rebuttal to the testimony of PW9. After considering the inflation factor and also the fact that the price of artificial limbs may decrease in future with more and more manufacturing companies of artificial limbs coming into market and there being healthy competition amongst those companies, I hereby award notional amount of Rs. 6,00,000/ in favour of petitioner/injured towards the expenses for her future treatment.
Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 40 of 46MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 9,84,628/
2. Loss of income Rs. 5,04,192/
3. Pain and suffering Rs. 3,50,000/
4. Loss of general amenities and Rs. 3,50,000/ enjoyment of life
5. Conveyance, special diet, future Rs. 2,44,064/ cost of medicines and attendant charges for rest of life
6. Loss of future income Rs. 14,82,325/
7. Compensation towards expenses Rs. 6,00,000/ for future treatment Total Rs. 45,15,209/ Rounded off to Rs. 45,15,500/
64. 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. 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, the respondent no. 3/insurance company becomes liable to pay the compensation amount, as Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 41 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
65. In view of my findings on issues no. 1 & 2, I award a sum of Rs. 5,80,000/ in MAC Petition No. 5485/16(including interim award amount if any) and a sum of Rs. 45,15,500/ in MAC Petition No. 5486/16 alongwith interest @ 9% per annum w.e.f. date of filing of petitions i.e. 20.03.14 in favour of petitioner(s) and against the respondents jointly and severally. (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016). Issue no. 3 is decided accordingly.
APPORTIONMENT
66. Statements of petitioners in terms of Clause 27 MCTAP were recorded on 11.09.18. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that out of total compensation amount in MAC Petition No. 5485/16, the petitioner no. 1 Smt. Vijay Laxmi Sharma shall be entitled to share amount of Rs. 3,00,000/ (Rupees Three Lacs Only) alongwith proportionate interest, the petitioner no. 2 Sh. Vivek Bhardwaj shall be entitled to share amount of Rs. 1,40,000/ (Rupees One Lakh and Forty Thousand Only) alongwith proportionate interest and the petitioner no. 3 Sh. Rahul Bhardwaj shall be Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 42 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 entitled to share amount of Rs. 1,40,000/ (Rupees One Lakh and Forty Thousand Only) alongwith proportionate interest.
67. Out of share amount of petitioner no. 1, a sum of Rs. 50,000/ (Rupees Fifty Thousand Only), shall be immediately released to her through her saving bank account no. 520402010275084 with Bank of India, Sector - 9, Rohini, Delhi - 85 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for one month, two months, three months and so on and so forth. having cumulative interest.
68. Out of share amount of petitioner no. 2, a sum of Rs. 25,000/ (Rupees Twenty Five Thosuand Only), shall be immediately released to him through his saving bank account no. 520402010275082 with Bank of India, Sector - 9, Rohini, Delhi - 85 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for one month, two months, three months and so on and so forth. having cumulative interest.
69. Out of share amount of petitioner no. 3, a sum of Rs. 25,000/ (Rupees Twenty Five Thosuand Only), shall be immediately released to him through his saving bank account no. 520402010275006 with Bank of India, Sector - 9, Rohini, Delhi - 85 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 43 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 of Rs. 10,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
70. In MACP No. 5486/16, a sum of Rs. 15,00,000/(Rupees Fifteen Lacs Only), shall be immediately released to her through her saving bank account no. 520402010275084 with Bank of India, Sector
- 9, Rohini, Delhi - 85 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 30,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
71. 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 claimants/petitioners. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimants/petitioners.
(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.
Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 44 of 46MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019
72. During the course of hearing final arguments, claimants were examined in order to ascertain as to whether they were entitled to exemption from deduction of TDS or not. They made statement on oath that they were entitled to exemption from deduction of TDS and also furnished their respective Form Nos. 15G/15H on record.
73. 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 respective amounts in their aforesaid saving bank accounts mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimants. Copy of this award be also given dasti alongwith Form nos. 15G/15H furnished by claimants (after retaining their copies on record) to counsel for insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of both the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form IVB, IVA and Form V in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to Smt. Vijay Laxmi Sharma & Ors.& Vijay Laxmi Sharma Vs. Baljeet Singh & Ors. Page 45 of 46 MACP Nos. 5485/16 & 5486/16, FIR No. 549/13; PS.Jahangir Puri DOD: 23.01.2019 concerned M.M and DLSA as per clause 31 and 32 of MCTAP. Signed copy of this Award be placed on the judicial record of MAC Petition No. 5486/16, as per the rules.
Digitally signed by VIDYA VIDYA PRAKASH
PRAKASH Date:
2019.01.25
Announced in the open 15:31:54 +0530
Court on 23.01.2019 (VIDYA PRAKASH)
Judge MACT2 (North)
Rohini Courts, Delhi
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