Delhi District Court
Arun Kumar vs . Surender Yadav & Ors. on 19 October, 2019
Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav
IN THE COURT OF SHRI SAMEER BAJPAI : PRESIDING OFFICER :
MACT : SOUTH DISTT. : SAKET COURTS : NEW DELHI
Petition No. : 377/17
Arun Kumar
S/o Sh. Mahesh Kumar
R/o H. No. 638
Village Gumthal,Distt. Sambhal,
Uttar Pradesh
Also at: 28B, Second Floor, Kh. No. 677/3/9,
Devli Ext. Devli Village,
New Delhi - 110 062
Petition No. : 376/17
Amit Paras
S/o Late Sh. M. D. Paras
R/o H. No. 19B, HIGMIG Flats,
Green View Apartments
Sector 99, NOIDA
Uttar Pradesh
Also at: G9/B 72
Sangam Vihar
New Delhi - 110 062
...... Petitioners
Versus
1. Surender Yadav
S/o Sh. Bhishm Yadav
R/o Village Rasulpur Nawada
Sector 62, Noida,
PS Sector 58
Distt. G. B. Nagar
Uttar Pradesh ..... (Driver)
Petition No. : 377/17 and 376/17 Page No. 1 of 18
Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav
2. Rakesh Kumar Sharma
S/o Sh. Balram Sharma
R/o Village Rasulpur Nawada
Sector 62 NOIDA,
PS Sector 58
Distt. G. B. Nagar
Uttar Pradesh
Ph. 9891221351, 9891121540
Also at:
B. R. Paint Hardware & Sanitary Store
Sri NAV Durga Market, Nawada,
NOIDA Sector 62, NOIDA201309 ..... (Owner)
Date of Institution : 28.02.2015
Date of reserving of judgment/order : 10.10.2019
Date of pronouncement : 19.10.2019
JUDGMENT:
1. By this judgment I shall dispose off the mentioned two claim petitions filed by the petitioners for the injuries sustained by them in a road accident on 10.05.2014 at about 01:30 a.m. at Service Lane near Sector 96 adjacent to NOIDA Express Way Near Mahamaya Flyover due to rash and negligent driving of vehicle bearing no. UP16 P 1978 by respondent no.1 and owned by respondent no.2.
2. Respondent no.1 filed written statement denying the averments made by the petitioners in their petitions.
Petition No. : 377/17 and 376/17 Page No. 2 of 18Arun Kumar vs. Surender Yadav & Ors.
3. Respondent no.2 filed written statement denying the averments made by the petitioners in their petitions and stated that he had sold the vehicle Maruti 800 bearing UP16P1978 to the respondent no. 1 on 21.02.2013 for an amount of Rs. 60,000/. The promissory note on or after 21.02.2013 was executed with regard to the same.
4. From the pleadings of the parties following issues were framed vide order dated 19.12.2015 by the Ld. Predecessor of this court:
1. Whether Amit Kumar and Arun Kumar sustained injuries in a road accident on 10.05.2014 at about 01:30 a.m. at Service Lane Near Sector 96 adjacent to NOIDA Express Way Near Mahamaya Flyover due to rash and negligent driving of vehicle bearing no. UP16 P 1978 being driven by respondent no. 1 (Sh. Surender Yadav) and owned by respondent no. 2 (Sh. Rakesh Kumar Sharma)? ...(OPP.)
2. To what amount of compensation, the petitioners are entitled and from whom?
3. Relief.
(Inadvertently the name of the petitioner Amit Kumar in petition no. 376/17 was mentioned as Arun Kumar in issues framed on 19.12.2015. which is now correctly mentioned as Amit Kumar under the signature of the court.)
5. As per record, vide order dated 15.05.2018 respondents were proceeded exparte.
Petition No. : 377/17 and 376/17 Page No. 3 of 18Arun Kumar vs. Surender Yadav & Ors.
6. In petition no. 376/17 petitioner Amit Paras examined himself as PW1. He tendered in evidence his affidavit Ex.PW1/1 and relied upon the documents Ex.PW1/A to Ex.PW1/F.
7. In petition no. 377/17 petitioner Arun Kumar examined himself as PW1. He tendered in evidence his affidavit Ex.PW1/1 and relied upon the documents Ex.PW1/A (OSR) to Ex.PW1/F. I S S U E No. 1
8. Needless to say that for making someone entitled U/s 166 of the Motor Vehicle Act, negligence of the driver of the offending vehicle needs to be proved and to prove the same the Tribunal need not go into the technicalities because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just, rational and reasonable on the basis of enquiry. It is an admitted legal position that the negligence on part of the driver with respect to use of the vehicle needs to be established and the same is to be established on the principle of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III (2015) ACC 435 Delhi.
PW1 (in both the claim petitions) stated that on 10.05.2014 at about 00.30 hrs, they (both the petitioners) were coming from Dwarka to Noida and petitioner Amit Paras was driving his car bearing No. DL 12CH3143. When they reached Service Lane, near Sector96, adjacent to Noida Express way near Mahamaya Flyover, Noida, Petition No. : 377/17 and 376/17 Page No. 4 of 18 Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav suddenly a Maruti800 bearing registration no. UP16P1978 in a rash and negligent manner came and in attempt to overtake from left side hit their vehicle. Due to the impact, the balance of the vehicle of the injured persons lost and it hit a tree on the road side and they sustained injuries. They were taken to hospital where their MLCs were prepared. Thereafter, they were transferred to Safdarjung Hospital. They further stated that a case vide FIR no. 497/2014 u/s 279/337/427 IPC was registered against the respondent no.1 at the police station Sector39, NOIDA Distt. Gautam Budh Nagar UP. They further stated that the accident took place due to rash and negligent driving by the respondent no.1.
The witnesses were not crossexamined by the respondents as they were exparte.
In view of the unrebutted testimony of the petitioners it is established on record that the petitioners sustained injuries in a road accident on 10.05.2014 due to rash and negligent driving of vehicle bearing no. UP 16 P 1978 by the respondent no.1 which was owned by respondent no.2. It is an admitted position on record that the vehicle was not insured.
Hence, this issue is decided in favour of the petitioners and against the respondents.
I S S U E No. 2Injury case of Arun Kumar MEDICAL EXPENSES :
9. In the present case the petitioner has placed on record medical bills of Petition No. : 377/17 and 376/17 Page No. 5 of 18 Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav Rs.710/. I therefore, award Rs.710/ to the petitioner towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
10. As per the discharge summary Ex.PW1/B the petitioner was diagnosed with Post. Ewall Fracture Right Acetabulum with Right hip Dislocation. He remained hospitalised from 10.05.2014 to 16.05.2014. He was operated there. The injuries on his person were grievous in nature. The petitioner has suffered 6% disability in relation to his Right Lower Limb. Having regard to the injuries, treatment and disability of the petitioner, I award him Rs. 50,000/ towards pain and suffering & enjoyment of life.
SPECIAL DIET, CONVEYANCE AND ATTENDANT CHARGES :
11. In the present case the petitioner has not placed on record any document with special diet, conveyance and attendant charges. However, looking into the injuries, treatment and disability of the petitioner, I award Rs.25,000/ to the petitioner towards special diet, conveyance and attendant charges.
12. COMPENSATION FOR MENTAL AND PHYSICAL SHOCK :
The injuries on the person of the petitioner were such that he must have suffered mental and physical shock, for which he has to be compensated. Looking into the injuries and disability of the petitioner, I award him Rs.15,000/ towards mental and physical shock.Petition No. : 377/17 and 376/17 Page No. 6 of 18
Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav LOSS OF INCOME/FUTURE LOSS OF INCOME :
13. In the present case the petitioner has not deposed regarding his income. However, in the claim petition, the petitioner stated that he was working in Lion Services Pvt. Ltd., Delhi and was earning Rs.8,000/ p.m. The petitioner has not placed on record any document regarding his occupation and income. Therefore, minimum wages of 'unskilled person' as on the date of accident has to be considered for calculating the loss of income which were Rs.8,554/ p.m. The injuries on the person of the petitioner were such that he must have remained out of work at least for four months. Therefore, the loss of income comes to Rs.34,216/ (8,554 x 4). I therefore, award Rs.34,216/ to the petitioner towards loss of income.
The petitioner has suffered 6% permanent physical impairment in relation to his Right Lower Limb. This disability will not much affect the working of the petitioner in future, however, he would definitely face some difficulty. Therefore, balancing all the facts, I award a lumpsum amount of Rs. 50,000/ to the petitioner towards future loss of income.
14. Thus, the total compensation in favour of petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 710/
PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 50,000/
SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 25,000/
COMPENSATION FOR MENTAL &
PHYSICAL SHOCK : Rs. 15,000/
LOSS OF INCOME : Rs. 34,216/
Petition No. : 377/17 and 376/17 Page No. 7 of 18
Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav
LOSS OF FUTURE INCOME : Rs. 50,000/
===========
Rs.1,74,926/
===========
Injury case of Amit Paras
MEDICAL EXPENSES :
15. In the present case the petitioner has not placed on record any original bill. Therefore, no amount is awarded to the petitioner under this head.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
16. As per the discharge summary the petitioner was diagnosed with Bimalleolar Fracture Right Ankle and Compound Right Ankle Fracture. The injuries on his person were grievous in nature. The petitioner has suffered 43% permanent physical impairment in relation to his Right Lower Limb. Having regard to the injuries, treatment and disability of the petitioner, I award him Rs. 75,000/ towards pain and suffering & enjoyment of life.
SPECIAL DIET, CONVEYANCE AND ATTENDANT CHARGES :
17. In the present case the petitioner has not placed on record any document with special diet, conveyance and attendant charges. However, looking into the injuries, treatment and disability of the petitioner, I award Rs.35,000/ to the petitioner towards special diet, conveyance and attendant charges.
Petition No. : 377/17 and 376/17 Page No. 8 of 18Arun Kumar vs. Surender Yadav & Ors.
18. COMPENSATION FOR MENTAL AND PHYSICAL SHOCK :
The injuries on the person of the petitioner were such that he must have suffered mental and physical shock, for which he has to be compensated. Looking into the injuries and disability of the petitioner, I award him Rs.25,000/ towards mental and physical shock.
LOSS OF INCOME/FUTURE LOSS OF INCOME :
19. In the present case the petitioner has not deposed regarding his income. However, in the claim petition, the petitioner stated that he was doing private service and was earning Rs.60,000/ p.m. The petitioner has not placed on record any document regarding his occupation and income. Therefore, minimum wages of 'unskilled person' as on the date of accident has to be considered for calculating the loss of income which were Rs.8,554/ p.m. The injuries on the person of the petitioner were such that he must have remained out of work at least for eight months. Therefore, the loss of income comes to Rs.68,432/ (8,554 x 8). I therefore, award Rs.68,432/ to the petitioner towards loss of income.
The petitioner has suffered 43% permanent physical impairment in relation to his Right Lower Limb. This disability will definitely affect his future working and daily chores of life to some extent. Therefore, balancing all the facts, I take the functional disability of the petitioner as Rs.25%. As per the driving license, the date of birth of the petitioner is 24.11.1980, the accident took place on 10.05.2014, so, he was 34 years of age at the time of accident. Therefore, taking a Petition No. : 377/17 and 376/17 Page No. 9 of 18 Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav multiplier of '16' the loss of future income is calculated as Rs.8,554 x 12 x 16 x 25% = Rs.4,10,592/. I therefore, award Rs.4,10,592/ to the petitioner towards future loss of income.
LOSS OF AMENITIES :
20. The petitioner was about 34 years of age at the time of accident. Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his daily life to pursue his talents, recreation interest, hobbies and evocations. The injuries would also have an affect on his social life. Looking into his age, injuries and facts and circumstances of the case, I award a sum of Rs. 35,000/ to the petitioner towards loss of amenities.
21. Thus, the total compensation in favour of petitioner is assessed as under :
MEDICAL EXPENSES : Nil
PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 75,000/
SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 35,000/
COMPENSATION FOR MENTAL &
PHYSICAL SHOCK : Rs. 25,000/
LOSS OF INCOME : Rs. 68,432/
LOSS OF FUTURE INCOME : Rs.4,10,592/
LOSS OF AMENITIES : Rs. 35,000/
===========
Rs.6,49,024/
===========
Petition No. : 377/17 and 376/17 Page No. 10 of 18
Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav
LIABILITY
22. As the offending vehicle was being driven by respondent no. 1, primary liability to compensate the petitioners remain with respondent no. 1.
Since the vehicle was owned by respondent no.2, he is vicariously liable to compensate the petitioners. It is an admitted position on record that the vehicle was not insured, therefore, respondents are directed to satisfy the award.
RELIEF
23. In view of my findings, I award Rs. 1,74,926/ (Rs. One Lakh Seventy Four Thousand Nine Hundred Twenty Six only) in claim petition no. 377/17 titled as Arun Kumar vs. Surender Yadav & Anr. and Rs. 6,49,024/ to the petitioner Amit Paras in claim petition no. 376/17 titled as Amit Paras vs. Surender Yadav & Ors. alongwith interest @7.5% per annum from the date of filing the petition till its realisation (except for the period from 29.05.2017 to 07.09.2019).
Release of the award amount
24. In claim petition no. 377/17 titled as Arun Kumar vs. Surender Yadav, out of the total awarded amount an amount of Rs.1,50,000/ is directed to be kept in the form of fixed deposit for a period of 03 years.
As far as the amount in claim petition no. 376/17 titled as Amit Paras vs. Surender Yadav is concerned, out of the total awarded amount an amount of Rs. 6,00,000/ is directed to be kept in the form of fixed Petition No. : 377/17 and 376/17 Page No. 11 of 18 Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav deposit in the following phased manner :
1. Rs. 1,00,000/ for a period of 01 year.
2. Rs. 1,00,000/ for a period of 02 years.
3. Rs. 1,00,000/ for a period of 03 years.
4. Rs. 1,00,000/ for a period of 04 years.
5. Rs. 1,00,000/ for a period of 05 years.
6. Rs. 1,00,000/ for a period of 06 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
25. In consonance to the idea conceptualized and formulated in various land mark judgments of our own Hon'ble High Court, by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble High Court, respondents are directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners within a period of 30 days from today, failing which the respondents shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
26. The respondents are directed to credit the amount directly to the MACT account of State Bank of India, District Court, Saket branch.
27. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following Petition No. : 377/17 and 376/17 Page No. 12 of 18 Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav manner:
28.
1. The interest on the fixed deposit be paid to the petitioner / claimant by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
2. Withdrawal from the aforesaid account shall be permitted to petitioner / claimant after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
3. No cheque book be issued to petitioner / claimant without the permission of this Court.
4. The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioner / claimant alongwith the photocopy of the FDRs .
5. The original fixed deposit receipts shall be handed over to petitioner / claimant at the end of the fixed deposit period.
6. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
7. Half yearly statement of account be filed by the Bank in this Court.
8. On the request of petitioner / claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
9. Claimant / petitioner shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
10. The bank is also directed to get the nomination form filled by the claimants at the time of preparation of FDRs.
11. The bank is also directed to keep the money received from the respondents in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
12. The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioner from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 4112541127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/ NEFT directly in the personal bank Petition No. : 377/17 and 376/17 Page No. 13 of 18 Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav account of the petitioner of the bank nearest to their place of residence.
DIRECTIONS FOR THE RESPONDENTS
29. The Respondents are directed to file the compliance report of their having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
30. The Respondents are directed to furnish a copy of this award alongwith the cheque of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimants/petitioners in whose favour the award has been passed.
31. The Respondents shall intimate the claimants/petitioners about their having deposited the amount in favor of the claimants in terms of the award, at the address of the claimants mentioned at the title of the award, so as to facilitate them to withdraw the same.
32. Copy of this award / judgment be given to the claimants who are directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after their having received the notice of the deposit of awarded amount by the respondents.
33. Copy of this Award / Judgment be given to the parties for compliance.
Petition No. : 377/17 and 376/17 Page No. 14 of 18 Arun Kumar vs. Surender Yadav & Ors.
34. The case is now fixed for compliance by the respondents for 19.11.2019.
FORM IVB SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1) Date of accident : 10.05.2014
2) Name of the injured : Amit Paras
3) Age of the injured: 33 years
4) Occupation of the injured : Private service, however, not proved on record.
5) Income of the injured : Rs.8,554/ p.m. (minimum wages)
6) Nature of injury : Grievous
7) Medical treatment
taken by the injured : Implant used for trauma fixation.
8) Whether any permanent disability? : Yes
10. Computation of Compensation
S. Heads Awarded by the
No. Claims Tribunal
11 Pecuniary Loss :
i Expenditure on treatment Nil
ii Expenditure on special diet, conveyance and Rs.35,000/
attendant
iii Loss of earning capacity
iv Loss of Income Rs.68,432/
v Any other loss which may require any special
treatment or aid to the injured for the rest of his life.
12 NonPecuniary Loss :
Petition No. : 377/17 and 376/17 Page No. 15 of 18 Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav
i Compensation for mental and physical shock Rs.25,000/
ii Pain and suffering Rs.75,000/
iii Loss of amenities Rs.35,000/
iv Disfiguration and marriage prospects
v Loss of marriage prospects
vi Compensation on account of permanent Rs.4,10,592/
disability
13 Disability resulting in loss of earning capacity :
(i) Percentage of disability assessed and nature of
disability as permanent or temporary
(iii) Percentage of loss of earning capacity in
relation to disability
14 TOTAL COMPENSATION Rs.6,49,024/
15 INTEREST AWARDED 7.5%
16 Total amount of interest Rs. 1,15,338/
17 Total amount including interest Rs.7,64,362/
18 Award amount released Rs.1,64,362/
19 Award amount kept in FDRs Rs.6,00,000/
20 Mode of disbursement of the award amount to No amount shall be
the claimant(s) released to the
petitioner unless he
complies the
directions of Hon'ble
High Court.
21 Next date for compliance of the award. 19.11.2019
FORM IVB
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD Petition No. : 377/17 and 376/17 Page No. 16 of 18 Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav
1) Date of accident : 10.05.2014
2) Name of the injured : Arun Kumar
3) Age of the injured: 23 years
4) Occupation of the injured : Private service, however, not proved on record.
5) Income of the injured : Rs.8,554/ p.m. (minimum wages)
6) Nature of injury : Grievous
7) Medical treatment
8) taken by the injured : Open reduction and internal fixation was
done.
9) Whether any permanent disability? : Yes
10. Computation of Compensation S. Heads Awarded by the No. Claims Tribunal 11 Pecuniary Loss :
i Expenditure on treatment Rs.710/
ii Expenditure on special diet, conveyance and Rs.25,000/
attendant
iii Loss of earning capacity
iv Loss of Income Rs.34,216/
v Any other loss which may require any special
treatment or aid to the injured for the rest of his life.
12 NonPecuniary Loss :
i Compensation for mental and physical shock Rs.15,000/ ii Pain and suffering Rs.50,000/ iii Loss of amenities iv Disfiguration and marriage prospects v Loss of marriage prospects vi Compensation on account of permanent Rs.50,000/ disability Petition No. : 377/17 and 376/17 Page No. 17 of 18 Arun Kumar vs. Surender Yadav & Ors.
Amit Paras vs. Surender Yadav
13 Disability resulting in loss of earning capacity :
(i) Percentage of disability assessed and nature of disability as permanent or temporary
(iii) Percentage of loss of earning capacity in relation to disability
14 TOTAL COMPENSATION Rs.1,74,926/ 15 INTEREST AWARDED 7.5% 16 Total amount of interest Rs. 31,084/ 17 Total amount including interest Rs.2,06,010/ 18 Award amount released Rs.50,000/ 19 Award amount kept in FDRs Rs.1,50,000/ 20 Mode of disbursement of the award amount to No amount shall be the claimant(s) released to the petitioner unless he complies the directions of Hon'ble High Court.
21 Next date for compliance of the award. 19.11.2019 Digitally signed by SAMEER SAMEER BAJPAI BAJPAI Date: 2019.10.22 Announced in the Open Court 15:57:10 +0530 on 19th day of October, 2019 (SAMEER BAJPAI) Presiding Officer : MACT/SD Saket Courts : New Delhi 19.10.2019 Petition No. : 377/17 and 376/17 Page No. 18 of 18