IN THE COURT OF MS. [ENTITY] : PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL : KARKARDOOMA COURTS : EAST DISTRICT : DELHI MAC Petition No. 19 of 2012 Unique I.D. No.02402C0009592012 Sh. [ENTITY] S/o Sh. Ram Baran Singh R/o C109, IInd Floor, Bhagwan Nagar, Ashram, Hari Nagar, New Delhi14. PETITIONER Versus 1. [ENTITY] S/o Sh. S.K. Sharma R/o 4/800, D.S. Block, Gali No.15, DRIVER CUM Bhola Nath Nagar, Shahdara, Delhi32. OWNER 2. ICICI Lombard General Insurance Co. Ltd. C15, IIIrd Floor, Aggarwal City Mall, Road No.44, Plot No.5, Near M2K Mall, Pitam Pura, Delhi. INSURER RESPONDENTS
Represented by : Mr. [ENTITY], Counsel for Petitioner.
Respondent no.1 is Ex Parte.
Mr. [ENTITY], Counsel for Respondent no.2.
Presented on : 01.12.2011 Reserved on : 30.01.2015 Decided on : 02.02.2015 [PRECEDENT]. PAGE : 1/18 A W A R D
1. The petitioner has filed the present Petition U/s 166 & 140 of [ACT] claiming compensation of Rs.60,00,000/ for the injuries suffered by him in the road side accident which occurred on 24.10.2011.
2. To put succinctly, the facts of the case are that on 24.10.2011 at about 7.00 PM, petitioner was standing at Nirman Vihar Bus Stop. Suddenly a motorcycle Hero Honda CBZ bearing registration No. DL13SJ5353, driven by respondent no.1 at a very high speed in a rash manner, hit the petitioner, as a result of which, he fell down and sustained injuries. He was taken to Lok Nayak Hospital. A case FIR No. 314/11, u/[SECTION] [ACT] was registered at Police Station Preet Vihar against respondent no.1.
3. It is stated that respondent no.1 is the driver cum owner and the respondent no. 2 is the Insurer of the offending vehicle; therefore, they both are jointly and severally liable to pay the compensation.
4. Notice of the petition was served upon the respondents. Respondent no. 1 in the Written Statement submitted that he was having the valid driving licence at the time of accident. [PRECEDENT]. PAGE : 2/18 Thereafter, the respondent no.1 stopped appearing and was proceeded ex parte vide order dated 08.07.2014.
5. The Respondent no. 2 in its written statement submitted that the vehicle i.e. DL13SJ5353 was insured in the name of respondent no.1 through an Insurance Policy valid from 29.11.2010 to 28.11.2011.
6. On the basis of pleadings, following issues were framed by Ld. Predecessor vide order dated 20.04.2013 :
i) Whether petitioner has suffered injuries in road side accident on 24.10.2011 involving vehicle i.e. motorcycle bearing registration No. DL13SJ5353 being driven allegedly in a rash and negligent manner by R1?
ii) To what amount of compensation, if any, the petitioner is entitled to and from whom?
iii) Relief.
7. Petitioner [ENTITY] examined himself as PW1 and filed his affidavit Ex.PW1/1 wherein all the facts which were stated in the petition were reiterated. PW1 relied upon documents i.e. High School Certificate and Inter Certificate as Ex.PW1/A, PW1/A1 (OSR), Graduation Certificate as Mark PW1/B, Certificate of MBA as Ex.PW1/C, Salary Certificate as Ex.PW1/D, FIR as Ex.PW1/F, MLC and Discharge Slip as [PRECEDENT]. PAGE : 3/18 Ex.PW1/G, Medical Bills amounting to Rs.2,88,911.50 and Treatment Record as Ex.PW1/H1 to H82. Petitioner also examined PW2 Dr. [ENTITY], from G.B. Pant Hospital who has proved the Medical Examination Report dated 23.7.2014 as Ex.PW2/A, Medical examination report of Guru Nanak Eye Centre dated 23.6.14 as Ex.PW2/B and the letter dated 27.3.14, received by court issued by him as Ex.PW2/C.
8. PW3 Dr. [ENTITY], Clinical Psychologist from IHBAS has proved the Neuro Phychological Assessment Report as Ex.PW3/A. PW4 Dr. [ENTITY], Director Professor from Guru Nanak Eye Centre proved the Disability Certificate as Ex.PW2/B.
9. The respondents have not led any evidence despite opportunity given to them.
10.I have carefully heard Ld. Counsel for petitioner and counsel for respondents in the light of relevant statutory provisions of law. On the basis of submissions advanced and the evidence adduced by both the parties, my findings on the issues are as follows :
ISSUE NO.1 :
Whether petitioner has suffered injuries in road side accident on 24.10.2011 involving vehicle i.e. motorcycle bearing registration No. [PRECEDENT]. PAGE : 4/18 DL13SJ5353 being driven allegedly in a rash and negligent manner by R1?
11.For succeeding in a claim petition filed under [SECTION] of the [ACT], it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver. Petitioner stated that on 24.10.2011 at about 7.00 PM, he was hit by a motorcycle Hero Honda CBZ bearing registration No. DL13SJ5353, driven by respondent no.1 at a very high speed. Consequently he suffered grievous injuries. The court has looked into the chargesheet filed by Police against respondent no.1 and the accompanying material. FIR was registered on the statement of the petitioner. The chargesheet against respondent no.1 is filed under [SECTION] of [ACT] which is primafacie suggestive of negligence of respondent no. 1 in driving the vehicle at the time of accident. The driver and owner have not brought forth any contraevidence on record. In [ENTITY] and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Hon'ble Supreme Court held :
"8. In a petition under [SECTION] of the Act, the petitioners were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition [PRECEDENT]. PAGE : 5/18 under the [ACT]. Para 15 of the report is extracted hereunder :
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the petitioners. The petitioners were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
12.The report in [ENTITY] (Supra) was relied on by the Hon'ble Supreme Court in its latest judgments in [PRECEDENT] and [PRECEDENT]."
13.In the case of [PRECEDENT], the Hon'ble High Court of Delhi has held :
" On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under [SECTION], [ACT] against the driver;
(iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient [PRECEDENT]. PAGE : 6/18 proofs to reach the conclusion that the driver was negligent. Proceedings under the [ACT] are not akin to proceedings in a civil suit and hence strict rules of evidence are not requires to be followed in this regard.
Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver".
14.In case of [PRECEDENT], an adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there was nothing on record to show that the petitioner had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case. The issue thus stands decided in favour of petitioner holding that the accident happened as a result of negligent driving by respondent no.1, in which petitioner had received grievous injuries.
ISSUE NO.2 :
To what amount of compensation, if any, the petitioner is entitled to and from whom?
15.Petitioner stated that on 24.10.2011, he was taken to Lok Nayak Hospital where his MLC Ex.PW1/G was prepared. Due to serious condition, he was referred for Neuro Surgery and ENT [PRECEDENT]. PAGE : 7/18 to Holy Family Hospital on 25.10.2011. As per Final Opinion Report dated 17.12.2011 and discharge summary Ex.PW1/G, he was brought in unconscious state to the hospital and admitted to ICU. He suffered severe head injuries (Haemorrhagic Contusion in left Temporoparietal and Right Paricial Region with Haemorrhage with shallow acute Subdural Hematoma Left Temoporoparietal Region). The doctors opined the injuries as dangerous in nature. He underwent operations for head injuries on 27.10.2011 and 07.11.2011 and was discharged finally on 21.11.2011.
16.The petitioner was examined by Disability Board on 18.01.2013 at Pandit Madan Mohan Malviya Hospital, Delhi, which opined a detailed Neurocognitive Assessment for the quantification of his disabilities and advised him to be referred to Higher Centre, IHBAS or G.B. Pant Neuropsychiatry, due to lack of the facility at the hospital. The report dated 04.04.2014 of Dr. [ENTITY] from IHBAS as Ex.PW3/A is proved by PW3 Dr. [ENTITY], Clinical Psychologist from IHBAS. Another report dated 30.04.2013 of Dr. [ENTITY], Associate Professor, Psychiatry was received directly by the court from IHBAS. This report shows that pursuant to the assessment [PRECEDENT]. PAGE : 8/18 carried out by Department of Neurosurgery, petitioner was found to have multiple disabilities relating to ENT and was advised to be referred further to ENT Department. This court received Medical Examination Report dated 23.07.2014 from Disability Cell, G.B. Pant Hospital. PW2 Dr. [ENTITY], from G.B. Pant Hospital has proved this Report besides Medical Examination Report of Guru Nanak Eye Centre dated 23.6.14 as Ex.PW2/B and his letter dated 27.3.14 as Ex.PW2/C.
17.The careful evaluation and assessment of the medical examination Reports, suggests that the petitioner underwent Neuropsycological Assessment Test and was found to have great difficulty in visual motor coordination. He had problems in his memory functioning and scored disfunction rating of 26 out of a total of 57, indicating the organic brain damage specially in area of memory processes. As per report Ex.PW2/B, the petitioner was found to be 30% visually handicapped. PW4 Dr. [ENTITY], Director Professor from Guru Nanak Eye Centre has proved the Disability Certificate as Ex.PW2/B to this effect, which shows the petitioner suffering from significant memory functions deficit as well.
18.Hon'ble Supreme Court has enumerated the principles for [PRECEDENT]. PAGE : 9/18 granting the compensation payable to road traffic accident victims. In the case of [PRECEDENT] [CASE NUMBER] decided on 18.10.2010, following principles were laid down by Hon'ble Supreme Court for determining compensation payable to road traffic accident victims :
i) The compensation payable to the claimant who is a victim of road accident 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 far as money can do so, in a fair, reasonable and equatable manner.
ii) Compensation payable in injury cases is payable under two heads. They are pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) (a) Loss of earning (and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future medical expenses. Nonpecuniary damages (General Damage) are
(iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities and/or loss of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).
iii) In routine personal injury cases compensation is awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical [PRECEDENT]. PAGE : 10/18 evidence corroborating the evidence of the claimant, that compensation is granted under any of the heads (ii) (b), (iii) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.
19.Petitioner is entitled for the compensation on account of future loss due to disability. While assessing future loss, his functional disability has to be assessed, which is to be judged with reference to the nature of work being performed by him.
20.The court personally examined the petitioner for evaluating his status of injuries. He is unable to answer properly owing to his significant memory impairment. He takes time to respond and states that he still feels immense difficulty to concentrate while reading any sentence and his medication relating to mental illness is still continuing. This Court cannot overlook the fact that he does not come from an affluent background and thus, it is hard for him to raise the resources required for his ongoing medical expenses. I assess that due to the disabilities sustained, his capacity has been considerably reduced, restricting him even from carrying his normal daily chores. Adding to this is the suffering on account of his substantial impairment in memory caused by the accident. Keeping in view the facts and [PRECEDENT]. PAGE : 11/18 circumstances, the functional disability is taken as 30% in relation to his whole body, in view of dictum of "[PRECEDENT]".
21.Ld. Counsel argued that the petitioner requires medical expenses for the future treatment and the medication. He has relied upon a judgment of Hon'ble Apex Court cited in [PRECEDENT].
22.This court is of the view that Loss of future income and the compensation to meet recurring inevitable future medical expenses are valid heads under which the compensation can be awarded. [Dr. [PRECEDENT])]. There is no reason why the compensation under the head "ongoing Medical Expenses" or "Future Expenses" for a person under disability be not granted as such an amount is meant to be used for petitioner's ongoing care, treatment and survival. Considering the fact that the multiple disabilities including the neurological and ENT related ones would require considerable time to heal up and require him to attend the Doctor on continuing basis, I grant a sum of Rs. 50,000/ under the head Future Medical Expenses. [PRECEDENT]. PAGE : 12/18
23.The petitioner has placed on record the document Ex.PW1/A, which shows his date of birth as 01.01.1983. His age is thus taken as 28 years, as on the date of accident. He states that he was working as Accountant with Taxation and was earning Rs. 10,000/ p.m. but in the absence of any evidence in support thereof, he is only entitled to claim his income on the basis of minimum wages. The minimum wages as were applicable to a Graduate at the relevant time were Rs.8,814/ and thus, the income is assessed as Rs.8,814/ p.m. Relying upon the judgment of [PRECEDENT] and [PRECEDENT] dated 30.09.2011, he is entitled for addition of 50% increase in his minimum wages while assessing the future prospects and thus, the same is assessed as Rs.8,814.00 + Rs.4,407.00 (50%) = Rs.13,221/ per month. On applying the multiplier of 17, the Future Loss of Income comes to Rs.13,221.00 x 12 x 17 x 0.30 = Rs. 8,09,125/.
24.In "[PRECEDENT]", Hon'ble Apex Court observed that while fixing compensation for pain and sufferings, as also [PRECEDENT]. PAGE : 13/18 for loss of amenities of life, the features like the age, marital status and unusual deprivation undertaken by a person in his life are to be reckoned. Petitioner stated in his affidavit that he was engaged to get married but the same was cancelled after the accident. From the overall assessment and the fact that his disability shall remain throughout his life, I assess Rs.80,000/ as compensation towards Pain, Shock and Suffering to the petitioner.
25.Petitioner will have to endure his inconvenience, disappointment and stress for the whole of his remaining life. The injuries have resulted in permanent neurological impairment besides the visual permanent disability. He is awarded a compensation of Rs.50,000/ towards Loss of Amenities and Enjoyment of Life.
26.The petitioner has placed on record the Medical Bills of Rs. 2,96,670/. Thus, an amount of Rs.2,96,670/ is awarded under the head Medical Bills.
27.With the kind of injuries suffered by him, it can be safely assumed that he would have suffered loss of earning capacity at least for a period of six months. He is awarded Rs.52,884/ (Rs. 8,814.00 x 6) for six months for Loss of Wages. [PRECEDENT]. PAGE : 14/18
28.The petitioner is also awarded a compensation of Rs.10,000/ for Special Diet and Rs.10,000/ for Conveyance Charges.
29.A victim of an accident has to be compensated in terms of money even if gratuitous services are rendered by a family member. In [PRECEDENT], This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of [PRECEDENT] 04.07.12. Therefore, on a lump sum basis, the petitioner is awarded a compensation of Rs.20,000/ for six months as Attendant's Charges.
30.Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the petitioner: 1 Towards future loss of income Rs. 8,09,125.00 2 Towards pain and sufferings Rs. 80,000.00 3 Towards servant/attendant for 6 months Rs. 20,000.00 4 Towards conveyance and special diet Rs. 20,000.00 5 Towards medical bills Rs. 2,96,670.00 6 Towards loss of amenities & enjoyment of life Rs. 50,000.00 7 Towards Future loss of Medical Expenses Rs 40,000.00 8 Towards loss of Wages Rs. 52,884.00 Total = Rs.13,68,679.00 [PRECEDENT]. PAGE : 15/18 Therefore, the petitioner is entitled to Rs.13,68,679/ which shall be the just compensation to him.
LIABILITY
31.Since the Insurance company has not denied the policy as on date of accident, therefore it is liable to pay the compensation amount. There being no evidence of violation of the policy conditions and there being nothing to support the permitted defence U/[SECTION] of the [ACT], I am unable to grant the recovery rights. It is the insurance company/respondent no.2, which shall make good the compensation in terms of the accepted policy.
A W A R D
32.Resultantly, the petition stands allowed. The respondent no.2/ Insurance Company is hereby directed to pay the compensation of Rs.13,68,679/ within one month to the petitioner with UCO Bank, Karkardooma Courts Complex, Delhi. Following the judgment of [PRECEDENT] passed by Hon'ble Delhi High Court, the respondent no.2 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioner.
[PRECEDENT]. PAGE : 16/18
33.Out of total award amount, let an amount of Rs.58,679/ in favour of the petitioner be released forthwith. The remaining amount shall be deposited in his name in the form of One [ENTITY] for a period of 10 years with release of monthly periodical interest to him.
34.The interest on the aforesaid Fixed Deposit shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioner.
35.Withdrawal from the said Account shall be permitted to petitioner after due verification and Bank shall issue Photo Identity Card to petitioner to facilitate Identity.
36.The original Fixed Deposit Receipt shall be retained by the Bank in safe custody. However, original Passbook shall be given to the petitioner with photocopy of [ENTITY]. On expiry of period of each [ENTITY], the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
37.No loan, advance, withdrawal shall be allowed on the said [ENTITY] without permission of this court.
38.Half yearly statement of account be filed by the Bank in this court.
39.On request of petitioner, Bank shall transfer the Savings [PRECEDENT]. PAGE : 17/18 Account to any other branch.
40.The award amount alongwith interest be deposited by respondent no. 2/Insurance Company, within 30 days in the court. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of [PRECEDENT], this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
File be consigned to Record Room.
Announced in the open Court Dated : 2nd February, 2015 (MS. [ENTITY]) PRESIDING OFFICER MACT (EAST) KARKARDOOMA COURTS, DELHI.
[PRECEDENT]. PAGE : 18/18 02.02.2015 Present: Ld. Counsel for both the parties.
Vide separate order announced in the open Court today, the petition stands allowed. The respondent no.2/ Insurance Company is hereby directed to pay the compensation of Rs.13,68,679/ within one month to the petitioner with UCO Bank, Karkardooma Courts Complex, Delhi. Following the judgment of [PRECEDENT] passed by Hon'ble Delhi High Court, the respondent no.2 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioner.
Out of total award amount, let an amount of Rs.58,679/ in favour of the petitioner be released forthwith. The remaining amount shall be deposited in his name in the form of One [ENTITY] for a period of 10 years with release of monthly periodical interest to him.
The interest on the aforesaid Fixed Deposit shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioner.
Withdrawal from the said Account shall be permitted to petitioner after due verification and Bank shall issue Photo Identity Card to petitioner to facilitate Identity.
The original Fixed Deposit Receipt shall be retained by the Bank in safe custody. However, original Passbook shall be given to the petitioner with photocopy of [ENTITY]. On expiry of period of each [ENTITY], the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
No loan, advance, withdrawal shall be allowed on the said [ENTITY] without permission of this court.
[PRECEDENT]. PAGE : 19/18 Half yearly statement of account be filed by the Bank in this court.
On request of petitioner, Bank shall transfer the Savings Account to any other branch.
The award amount alongwith interest be deposited by respondent no. 2/Insurance Company, within 30 days in the court. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of [PRECEDENT], this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
List for reporting compliance on 20.03.2015.
(MS. [ENTITY]) P.O. MACT (EAST)/DELHI/02.02.2015 [PRECEDENT]. PAGE : 20/18