-1- IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI (MACT No. 753/10/06) [ENTITY] S/o Sh. Rohtash Singh R/o Nai Basti, P.O. Wali, Auchandi Road, Bawana, Delhi Petitioner Versus 1) Sh. [ENTITY] S/o Sh. Tara Chand R/o 83, Main Bazar, Bawana, Delhi-110039. 2) The [ENTITY] A-2/3, Lusa Tower, Azadpur, Delhi 3) Sh. [ENTITY] S/o Sh. Ram Mehar, R/o Village & P.O. Nangal Thakran, Delhi-110039 Respondents Date of institution 19.09.2006 Date of decision 23.03.2012 (Application u/s 140 and 166 of Motor Vehicles Act for grant of compensation) JUDGMENT:
Petitioner [ENTITY] aged about 19 years used to work as a helper in the offending vehicle i.e. bus bearing No. DL-1PB-4387. It is stated that on 07.08.2006 the petitioner was on duty with the driver on the aforesaid bus. At about 9.30 pm when the bus reached at Main Bus stand Bahadurgarh, Narela the petitioner was standing on the gate, the driver stopped the bus and when the petitioner was alighting from the bus, the driver again started the bus in a rash and negligent manner and with a high speed and as a result the petitioner lost his balance and fell outside from the bus and received serious/grievous injuries all over the body. The petitioner was removed to Trauma Centre in a precarious condition. It is further alleged that the petitioner has suffered permanent disability on account of the injuries sustained by him in the aforesaid accident. It is further stated that the accident was caused due to rash and negligent driving on the part of driver of the offending vehicle. A criminal case under [SECTION] [ACT] was registered against respondent no. 1 vide FIR No. 482/09 in police station Narela, Delhi.
Petitioner alleged that at the time of accident he was helper on the offending bus and was earning Rs. 4,000/- per month. He claimed sum of Rs. 10 lakhs alongwith interest @ 12% p.a. as compensation from the respondents being owner, insurance company and driver of offending vehicle under various pecuniary and non pecuniary heads.
Initially in the present petition driver/respondent no. 3 was not made a party, but subsequently the driver was impleaded as respondent no. 3 on 05.04.2008 on an application moved under [SECTION] [ACT] and counsel for petitioner filed amended memo of parties.
Respondent no. 1 filed written statement and totally denied happening of accident with his vehicle. Respondents no. 2 insurance company in its written statement admitted existence of insurance policy in respect of offending vehicle but tried to avoid its liability on various technical grounds. Respondent no. 3 driver of the offending vehicle also denied happening of an accident with his vehicle.
On the basis of pleadings of the parties, following issues were framed on 12.02.2007 by my ld. Predecessor:
1) Whether on 07.08.2006 at main bus stand Bahadurgarh Narela, petitioner suffered injuries as driver of bus no.
DL-1PB-5387 put the bus suddenly in motion? OPP
2) Whether petitioner is entitled to compensation as prayed for, if so, what amount and from which of the respondent? OPP.
3) Relief.
In order to prove his case, petitioner examined three witnesses. He has disclosed how and in which manner accident took place. He stated that he was removed to Trauma Centre (Lok Nayak Hospital) by his grand father in a precarious condition, where he admitted from 08.08.2006 to 20.08.2006 and proved the photocopy of the discharge slip as Mark-A. Thereafter, he was again admitted in Tirath Ram Shah Charitable Hospital, where he remained admitted from 24.08.2006 to 29.08.2006 and proved the photocopy of discharge slip as Ex.PW1/1. Thereafter, the petitioner was again admitted at Pal Charitable Hospital, where he remained admitted from 16.09.2006 to 22.09.2006 and proved the photocopy of discharge slip as Ex.PW1/2. He further stated that he has suffered crush injury of left foot grievous injuries on other parts of his body, thereafter, he remained under treatment for about 8 months in various hospitals. His treatment is still continuing. He proved his medical record as Ex.PW1/3 to Ex.PW1/16. He further stated that he has suffered the amputation of his great toe with stiff ankle and suffered permanent physical disability of 51%. He proved the photocopy of disability certificate as Ex.PW1/16A. He stated that during the course of treatment, he has spent approximately Rs. 2,00,000/- on purchase of medicines and about Rs. 50,000/- on special diet as advised by the doctors, he spent about Rs. 25,000/- on conveyance charges. His medical bills and residence proof are collectively Ex.PW1/17. He was not in a position to perform his daily routine work and he has to take help of others. He is unmarried still and no girl is willing to marry him due to disability. He further stated that he was a young man of 20 years of age at the time of accident and was able bodied but because of the said accident, he has become disabled person and cannot lead his life like a normal person because of the injuries sustained by him in the said accident which caused due to rash, negligent and high speed of driver respondent no. 3. In the cross examination by counsel for R-1 & 2, petitioner stated that the bus was taking back turn. He was not having any whistle at that time and he was helping for getting the bus reversed. There was no street light near the spot of accident. He further stated that he started working as helper in the bus about 15 days prior to the accident, but he does not remember the exact date of his employment. No attendance was marked anywhere and no Identity card was issued to him. He denied the suggestion that this accident took place due to his own negligence as he jumped from the reversing bus. In the cross examination conducted by counsel for respondent no. 3, the petitioner PW-1 stated that he does not have any document to show that he was working as a helper in the offending bus or he was getting salary of Rs. 4,000/- p.m. He stated his date of birth as 23.02.1987. He has already filed all the medical bills which were available with him. He denied the suggestion that his disability has not been properly assessed.
Petitioner further examined PW-2 Sh. [ENTITY], Medical Record Officer, Tirath Ram Shah Hospital, who has brought the medical record and medical bills of the petitioner and proved the same as collectively Ex.PW2/A (running into 33 pages).
Petitioner also examined Dr. [ENTITY], Specialist Orthopaedics Surgeon, Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi as PW-3, who stated that he has issued the disability certificate no. 2070 to the petitioner and according to the said disability certificate, he suffered permanent disability of 51% in relation to left lower limb. It is being a case of crush injury left foot and there is no guideline to access the disability in relation to whole body. He further stated that the petitioner may not be able to drive a heavy vehicle and it is unlikely that a disability will improve. No cross examination of the said witness was conducted by the respondents. Respondent no. 2 insurance company examined Sh. [ENTITY], Head Clerk, STA Rajpur Road, Delhi as R2W1 who has brought the computerized attested copy of permit record of bus bearing No. DL-1PB-4387 and proved the same as collectively Ex.R2W1/A (running into 2 sheets). He further stated that as per their record the permit was surrendered on 14.10.2002 and on 14.10.2002 fresh permit was issued and the same was continued/valid upto 21.08.2006. No evidence was led by other respondents.
I have heard counsel for the parties and perused the material on record. My decision on the above mentioned issues is as under:
Issue no. 1:-
The principles to be followed in the case of motor accident claims has been laid down by the Hon'ble High Court of Guwahati in case cited as [PRECEDENT] by Hon'ble Guahati High Court that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
[PRECEDENT]. (1980)
3 SCC 475 Hon'ble Supreme Court has observed as under:-
"In Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
Petitioner PW-1 in his evidence disclosed how and in which manner the accident took place. Nothing material has been put regarding the manner of accident in the cross examination of PW-1. Version of the petitioner regarding accident has remained unrebutted and unchallenged and I find no ground to disbelieve him in this regard. There is nothing on record to point out that there was any negligence on the part of the petitioner. Petitioner has also placed on record the copies of criminal case which shows that police after investigation found that accident took place due to rash and negligent driving of the offending bus by respondent no. 1. No effective cross examination of the petitioner's witness was conducted by the respondents, so its adverse inference has to be taken against them. Police investigation also prima facie reveals the involvement of respondent no.1 in causing the accident due to driving offending vehicle in rash and negligent manner. Hence it is held that the accident took place due to rash and negligent driving of bus by respondent no. 1. Accordingly, this issue is decided in favour of petitioner and against the respondents.
Issue no. 2:-
Hon'ble Supreme Court in [ENTITY] vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has observed as under:
"The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term "compensation" used in [SECTION] of the [ACT] (for short, "the Act") would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under [SECTION] of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of the compensation in such cases should invariably include pecuniary and non- pecuniary damages. In [PRECEDENT], this Court while dealing with a case involving claim of compensation under the [ACT], referred to the judgment of the Court of Appeal in [PRECEDENT], Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance, (ii) loss of earning of profit up to the date of trial, (iii) other material loss. So for non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future, (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit;
(iii) damages for the loss of expectation of life, i.e, on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life".
In the same case, the court further observed:
"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards".
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka MANU/SC/0803/2009: (2009)6 SCC 1, the three-Judge Bench was dealing with a case arising out of the complaint filed under the [ACT]. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs. 15 lakhs to Rs. 1 crore, the Bench made the following observations which can appropriately be applied for deciding the petitions filed under [SECTION] of the Act:
"At the same time we often find that a person injured in an accident leaves his family in greater distress vis- -vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity".
In Reshma Kumari v. Madan Mohan Manu/SC/1303/2009:
(2009) 13 SCC 422, this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the Judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
In Arvind Kumar Mishra v. New India Assurance Co.
Limited Manu/SC/0777/2010: (2010) 10 SCC 254, the Court considered the plea for enhancement of compensation made by the Appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:
"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as ho was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered".
In [PRECEDENT], the court considered some of the precedents and held:
"The provision of the [ACT], ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as for as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and hie inability to earn as much as he used to earn or could have earned".
In our view, the principles laid down in [PRECEDENT] (supra) and [PRECEDENT] (supra) must be followed by all the Tribunals and the High Court in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident".
The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages):
Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising;
a) Loss of earning during the period of treatment; b) Loss of future earnings on account of permanent disability. iii) Future medical expenses. Non Pecuniary damages (General damages): iv) Damages for pain suffering and trauma as a consequence of the injuries. v) Loss of amenities (and/or loss of prospects of marriage). vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (I), Iii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
We shall now consider whether the compensation awarded to the petitioner is just and reasonable or he is entitled to enhanced compensation under any of the following heads:
i) Loss of earning and other gains due to the amputation of leg.
ii) Loss of future earnings on account of permanent disability.
iii)Future medical expenses.
iv)Compensation for pain, suffering and trauma caused due to the amputation of leg.
v) Loss of amenities including loss of the prospects of marriage.
vi)Loss of expectation of life.
Hon'ble Supreme Court in [ENTITY] vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has further observed as under:
"In this view of the matter, in our view, it would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, the court has to arrive at a reasonable estimate on the basis of the evidence brought on record."
"After the aforesaid judgment, the cost of living as also the cost of artificial limbs and expenses likely to be incurred for periodical replacement of such limb has substantially increased. Therefore, it will be just and proper to award a sum of Rs. 2,00,000/- to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing on it will take care of the cost of artificial limb, fees of the doctor and other ancillary expenses."
"The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the Appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met b awarding him a sum of Rs. 1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg."
"The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with one artificial leg. The Appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs. 1,50,000/- for the loss of amenities and enjoyment of life."
Pecuniary damages (Special damages):
Petitioner suffered crush injury of left foot and grievous injuries on other parts of his body. He remain admitted in Lok Nayak Hospital from 08.08.2006 to 20.08.2006 as per discharge slip Mark-A. Thereafter, he was again admitted in Tirath Ram Shah Charitable Hospital, where he remained admitted from 24.08.2006 to 29.08.2006 as per discharge slip Ex.PW1/1.
Thereafter, the petitioner was again admitted at Pal Charitable Hospital, where he remained admitted from 16.09.2006 to 22.09.2006 as per discharge slip Ex.PW1/2. Thereafter, he remained under treatment for about 8 months in various hospitals and his treatment is still continuing. He proved his medical record as Ex.PW1/3 to Ex.PW1/16. He has suffered the amputation of his great toe with stiff ankle and suffered permanent physical disability of 51% as per disability certificate Ex.PW1/16A.
Petitioner has alleged that he had incurred Rs. 2,00,000/- on his treatment, but the petitioner has placed on record the medical bills worth Rs. 51,000/- only which are corroborated by the medical prescriptions and treatment record. No dispute regarding the correctness and genuineness of these bills is raised so the petitioner is thus entitled to recover the amount of Rs. 51,000/- towards medical expenses.
Petitioner has proved the disability certificate as Ex.PW1/16A which shows that the petitioner suffered permanent disability of 51% in relation to left lower limb. He also examined the doctor concerned i.e. PW-3 who stated that it is a case of crush injury left foot and there is no guideline to access the disability in relation to whole body. He further stated that the petitioner may not be able to drive a heavy vehicle and it is unlikely that a disability will improve.
Counsel for the petitioner cited the case decided by Hon'ble Supreme Court titled as [ENTITY] vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 and argued that in the present case the extent of disability be taken as full 51% as reported in disability certificate Ex.PW1/16A and compensation be fixed according to this extent. In this cited case the permanent disability assessed by the doctor in the certificate has been taken as it is to ascertain the amount of compensation and has not been reduced. It has come on record that till the date of accident he was doing the work of helper and due to disability he is not in a position to perform his daily routine work and he has to take help of others. He further stated that he was a young man of 20 years of age at the time of accident and was able bodied but because of the said accident, he has become disabled person and cannot lead his life like a normal person because of the injuries sustained by him in the said accident.
Permanent disability is treated as akin to the death in relation to the loss of earning capacity but it would depend upon the extent of disability. In view of the above judgment of Hon'ble Supreme Court in such cases, the permanent disability as determined by the medical board is to be used.
The petitioner in his petition described his age as 19 years at the time of accident and during cross examination he also given his date of birth as 23.02.1987, but no proof has been placed on record regarding his age, but as per his own statement, his age is to be taken as 19 years approximately at the time of accident, so in view of the decision of Hon'ble Supreme Court given in [PRECEDENT], multiplier of 18 has to be applied to count loss of earning capacity.
Petitioner alleged that at the time of accident he was helper on the offending bus and was earning Rs. 4,000/- per month but he has not proved his income nor produced any witness in this regard. In absence of any documentary evidence in this regard, petitioner has to be treated as a worker falling in unskilled category according to the schedule of minimum wages and presumed to be earning a sum of Rs.3,312/- per month. Accordingly this amount of Rs. 3,312/- per month has to be taken into consideration to assess the amount of compensation.
Petitioner had suffered crush injury of left foot and grievous injuries on other parts of his body. He remain admitted in Lok Nayak Hospital from 08.08.2006 to 20.08.2006. Thereafter, he was again admitted in Tirath Ram Shah Charitable Hospital from 24.08.2006 to 29.08.2006. Thereafter, the petitioner was again admitted at Pal Charitable Hospital, from 16.09.2006 to 22.09.2006 and thereafter, he remained under treatment for about 8 months in various hospitals and his treatment is still continuing. He has suffered the amputation of his great toe with stiff ankle and suffered permanent physical disability of 51% as per disability certificate Ex.PW1/16A. Thereafter his treatment continued as OPD patient. Medical record shows that he visited doctors from time to time as OPD patient. In such situation, I am of the view that petitioner is required to be reimbursed the amount towards loss of income for six months only at Rs. 19,872/- (Rs. 3312/- x 6 months).
Petitioner was not having any permanent job. He was aged about 19 years at the time of accident. Hon'ble Delhi High Court in [PRECEDENT] and [PRECEDENT] decided on 25-8-2009 held that keeping in view the trend of increase of minimum wages from time to time and rises in price index and inflation, it can be said that minimum wages would get almost double over a period of next 10 years and thus future prospects should be given upon minimum wages also. Thus applying the formula given in these judgments, the monthly income of the petitioner can be held at Rs. 4,968/- (Rs. 3312 + 50%).
As no deduction from income has to be taken towards personal expenses in case of injury as per decision of Hon'ble Delhi High Court in [PRECEDENT] decided on 22-3-2010, so the total loss of future income or earning capacity comes to Rs. 5,47,275/-
(in round figure) as per the formula (Rs. 4968 x 12 x 18 x 51%). Accordingly petitioner is granted loss of future income at Rs. 5,47,275/-.
Medical record shows that petitioner had visited number of times to hospital as OPD patient and remain admitted in various hospitals approximately for 25 days and thereafter his treatment continued as OPD patient, though no proof of spending upon any conveyance is brought on record. Injured must have spent some amount on extensive visits to the hospitals during that period. In case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc. is provided instead of or in addition to the normal food. Hence in absence of any evidence and documentary evidence, I am of the view that maximum petitioner can be paid Rs. 10,000/- towards special diet and Rs. 15,000/- towards conveyance charges.
Counsel for petitioner during arguments requested for awarding future medical expenses. But no evidence is brought on record that petitioner requires any further treatment in future. Judicial notice can be taken of the fact that due to such type of injuries and disability as is suffered by the petitioner, petitioner now cannot walk properly due to disability in his left leg and cannot now run or climb the stairs easily. Difficulty and inconvenience arises to perform even daily personal routine acts due to this disability. Hence I awarded a sum of Rs. 25,000/- towards future medical expenses.
Non-pecuniary damages (General damages) PW-3 also stated that it is a case of crush injury left foot. He further stated that the petitioner may not be able to drive a heavy vehicle and it is unlikely that a disability will improve. Judicial notice can be taken of the fact that due to such type of injuries and disability as is suffered by the petitioner, the petitioner must have suffered great pain and sufferings and also had undergone some shock of accident. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the age, status and condition of the petitioner, extent of disability, hospital admissions and visits to doctors etc. he is granted lump sum amount of Rs. 75,000/- towards pain and sufferings, mental shock and trauma a sum of Rs. 1,00,000/- towards loss of amenities and enjoyment of life as per the judgment of [ENTITY]'s case.
Petitioner in his affidavit stated that he is unmarried still and no girl is willing to marry him due to disability. He further stated that he was a young man of 20 years of age at the time of accident. He cannot marry and his marriage prospects have been vanished. Hence, I awarded a sum of Rs. 1,50,000/- towards loss of marriage prospects and shortening of life as per the judgment titled as [PRECEDENT] and as per the judgment of [ENTITY]'s case.
Respondent no. 2 insurance company examined Sh. [ENTITY], Head Clerk, STA Rajpur Road, Delhi as R2W1 who has proved the computerized attested copy of permit record of bus bearing No. DL-1PB-4387 as collectively Ex.R2W1/A (running into 2 sheets). He further stated that as per their record the permit was surrendered on 14.10.2002 and on 14.10.2002 fresh permit was issued and the same was continued/valid upto 21.08.2006.
Beside this respondent no. 2 insurance company has failed to bring on record any other evidence to show that the documents of the bus were not proper or genuine. Insurance company is not able to prove from any evidence that it is liable to be exonerated and is not liable to pay the compensation amount as ordered by the court. Hence, the respondent no.2 shall be liable to pay the entire compensation amount.
In view of the above discussions, this issue is decided in favour of petitioner by holding that he is entitled to get the following total compensation from respondent no. 2:
Pecuniary damages (Special damages):
a) Medical expenses Rs. 51,000/-
b) Loss of income Rs. 19,872/-
c) Loss of future income Rs. 5,47,275/-
d) Special diet expenses Rs. 10,000/-
e) Conveyance charges Rs. 15,000/-
f) Future medical treatment expenses Rs. 25,000/-
Non-pecuniary damages (General damages)
g) Pain, suffering, mental shock and trauma Rs. 75,000/-
h) Loss of amenities and enjoyment of life Rs. 1,00,000/-
i) Loss of marriage prospects etc. Rs. 1,50,000/-
Total Rs. 9,93,147/-
Accordingly it is ordered that respondent no. 2 shall pay interest at the rate of 7.5% p.a. on the above compensation amount from 19.09.2006 till realization.
Issue no. 3 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 2 insurance company is directed to pay within 30 days a total sum of Rs. 9,93,147/- to the petitioner with interest at the rate of 7.5% p.a. from 19.09.2006 till the compensation amount is fully paid.
It is further ordered that out of compensation amount, sum of Rs. 5 lakh be kept in [ENTITY] in the name of petitioner for a period of five years, Rs. 2 lakh be kept in [ENTITY] in the name of petitioner for a period of three years and Rs. 2 lakh be kept in [ENTITY] in the name of petitioner for a period of two years to be renewed from time to time. Remaining amount alongwith accrued interest be deposited in saving bank account of the petitioner with liberty to withdraw Rs. 7,000/- p.m. till this amount is fully exhausted. However, petitioner is allowed to withdraw the quarterly interest on these [ENTITY]s. The [ENTITY]s shall not be encashed without permission of the court. No loan or advance shall be granted to the petitioner on the [ENTITY]. Respondent no. 2 insurance company to pay further sum of Rs. 30,000/- as counsel fee to Sh. [ENTITY], Adv., Enrollment No. D-368/93 by preparing separate cheque in the name of counsel as per the judgment of Hon'ble Mr. Justice [ENTITY].
Copy of this judgment be given to petitioner and counsel for respondent no. 2. File be consigned to record room.
Announced in the open (D.K. MALHOTRA) Court on 23.03.2012 JUDGE, MACT (OUTER-II) DELHI