Delhi District Court
Sh. Dharam Singh Kataria vs . Minesh on 8 December, 2011
1
Sh. Dharam Singh Kataria Vs. Minesh
IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL01,
DWARKA COURTS, NEW DELHI
IN THE MATTER OF :
SH DHARAM SINGH KATARIA VS. MINESH & ORS.
MACT NO.: 212/10
Sh. Dharam Singh Kataria,
S/o Sh. Kripa Ram,
R/o Vill. & P.O. Chhawla,
Najafgarh, New Delhi.
........Petitio
ner
Versus
1 Sh. Minesh
S/o Sh. Satyavrat,
R/o V&PO Mukandpur,
Teh. Bahadurgarh, Distt. Jhajjar (Haryana)
2 Sh. Pammi Kumar Sangwan,
R/o G6/5, Ground Floor, Malviya Nagar,
New Delhi110017
3 Shri Ram General Insurance Company Ltd.
D18, Lajpat NagarII,
New Delhi110024
.......Respondents
Sh. Dharam Singh Kataria Vs. Minesh MACP No. 212/10 ( Page no 1 to Page no.13) 2 Sh. Dharam Singh Kataria Vs. Minesh
1. Date of institution : 15/07/2010
2. Date of framing of issues : 21/01/2011
3. Date of hearing arguments: 26/11/2011
4. Date of decision : 08/12/2011 AWARD/JUDGMENT:
(INJURY CASE) 1 Sh. Dharam Singh Kataria (hereinafter 'the injured') aged about 56 years had left his house on his two wheeler scooter make Bajaj Chetak on the date of accident. On reaching Jhatikra mor, Gurgaon road at about 3.15 PM on 26/12/2009, when he was in process of taking turn towards Chhawla by giving indication as well as raising his hand, then all of sudden an Enfield Motorcycle bearing no. DL3SBP 4975 (hereinafter the offending vehicle) came at a very high speed driven by respondent no. 1 (in short R1) in rash and negligent manner and hit his motorcycle with the great force. As a resultant thereof, he fell down on the road along with his scooter and sustained right leg both bones fracture fibula and tabula and thereafter, he was removed to RTRM Jaffar Pur, New Delhi for treatment. 2 The offending vehicle was owned by respondent no. 2 (in short R2) and insured with respondent no. 3 (in short R3).
3 Pursuant to service of notice upon the respondents, they appeared.
Respondent no. 2 chose to stay away from the proceedings and failed to file the WS despite time sought.
Sh. Dharam Singh Kataria Vs. Minesh MACP No. 212/10 ( Page no 1 to Page no.13) 3 Sh. Dharam Singh Kataria Vs. Minesh 4 R1 in his written statement have denied the factum of the accident pleading that the petitioner was himself responsible to cause the accident. It is pleaded that the vehicle in question was duly insured with R3 (Shri Ram General Insurance Company) at the time of accident vide Policy No. 101006/31/10/00/329 in the name of one Sh. Pammi Kumar Sangwan valid from 16/10/09 to 15/10/10 and the respondent no. 1 was holding a valid driving licence and hence, no liability can be fastened upon him.
5 A separate written statement has been filed by R3 wherein pleaded that the offending vehicle bearing no. DL3SBP 4975 was insured with it in the name of R2, however, subject to the terms and conditions of the policy. It is pleaded that insurance company shall not be liable to pay the compensation, in case the offending vehicle is found to have been driven in contravention of terms of policy. 6 Issues were framed on 21/1/2011 by Sh. H. S. Sharma, the then Presiding Officer , MACT.
7 I have heard Ld. counsel for the parties and perused the evidence on record.
8 My issue wise findings are as under: ISSUE NO 1 Whether the petitioner sustained injuries on 26/12/09 due to rash or negligent driving of Motorcycle No. DL3S BP 4975 by R1? ......OPP Sh. Dharam Singh Kataria Vs. Minesh MACP No. 212/10 ( Page no 1 to Page no.13) 4 Sh. Dharam Singh Kataria Vs. Minesh 9 Petitioner has examined himself as PW1 by way of affidavit Ex. PW1/A. In para three, of his affidavit he has reiterated the manner of accident, as mentioned in para 1 of the award. Deposition of PW1 has not been controverted by respondent no. 1 as he had chosen to stay away from the proceedings and did not cross examine him on the aspect of "negligence ''. No doubt PW1 was cross examined on behalf of respondent no.3 but nothing material came out during his cross examination, so as to discredit the version given on record by him regarding the manner in which the offending vehicle was being driven. 10 The accident had taken place on 26/12/2009, at about 3.15 PM. The FIR bearing no. 3/10 was registered with the police station Najafgarh on the statement of the petitioner. FIR, site plan, mechanical inspection report and seizure memo vide which the offending vehicle was seized, arrest memo of the accused are collectively Ex. PX being the forming part of Accidents Information Report. In the said FIR, number of the offending vehicle finds mentioned as DL3S BP 4975. It is well settled that in an accident claim case, the claimant is not required to prove his case to the hilt.
11 In view of the above discussion, this issue is decided in favour of the petitioner and against the respondents.
ISSUE NO 2 Whether the petitioner is entitled to claim compensation if so, what amount and from whom? ......OPP Sh. Dharam Singh Kataria Vs. Minesh MACP No. 212/10 ( Page no 1 to Page no.13) 5 Sh. Dharam Singh Kataria Vs. Minesh 12 As issue no.1 is decided in favor of the petitioner in affirmative, thus, petitioner is entitled for the compensation. Quantum of the compensation, however, is required to be calculated.
13 It has been held in a catena of judgments by Hon'ble Apex Court and various High Courts that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. It has been held in a number of judgments that general principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. In examining the question of damages for personal injury, pecuniary or nonpecuniary damages are required to be taken into account.
14 It has been held by Hon'ble Apex Court in R.D. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: " In injury cases it is not easy to assess the amount of damages. The same can however be based on some element of guess work and some amount of sympathy linked with the nature of disability. However all such elements are required to be viewed with objective standard. While assessing the damages the court can not base its opinion merely on speculation or fancy though conjectures to some extent are inevitable.
Sh. Dharam Singh Kataria Vs. Minesh MACP No. 212/10 ( Page no 1 to Page no.13) 6 Sh. Dharam Singh Kataria Vs. Minesh Broadly speaking, while fixing the 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 nonpecuniary 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 far as nonpecuniary 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 ie. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of expectation of life, ie. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
15 In view of above, in order to calculate the amount of Sh. Dharam Singh Kataria Vs. Minesh MACP No. 212/10 ( Page no 1 to Page no.13) 7 Sh. Dharam Singh Kataria Vs. Minesh compensation, the sum is required to be considered under the various heads as delineated above by Hon'ble Apex Court.
(a) LOSS OF INCOME ON ACCOUNT OF PERMANENT DISABILITY 16 Initially he was admitted in Rao Tula Ram Memorial Hospital, Jaffar Pur, Najafgarh, New Delhi where his MLC was prepared. It is testified that
petitioner had suffered fracture on his right leg and deep cut mark on his forehead where number of stitches were applied. Besides this, he had also suffered multiple injuries on his left shoulder and he was also referred to the Ram Manohar Lohia hospital for further treatment and his treatment is still continuing. To support his averments he proved the original medical treatment record as Ex. PW1/1 to Ex. PW1/6.
17 Not only this, he was sent to be examined in Rao Tula Ram Memorial Hospital to ascertain the disability, if any. Medical Board gave the opinion by stating his disability as 35% in relation to his right lower limb with the observation that the injury may improve with treatment and reassessment is recommended after a period of one year but no Doctor has been examined to prove the disability certificate, however, disability certificate has been made as Ex. PW1/12 by the petitioner during his examination.
18 In the instant case, the petitioner has been serving as a Lecturer Hindi in Sh. Dharam Singh Kataria Vs. Minesh MACP No. 212/10 ( Page no 1 to Page no.13) 8 Sh. Dharam Singh Kataria Vs. Minesh Govt. Co. Ed. Sr. Sec. School, Goyla Khurd, New Delhi and he drawn a sum of Rs. 35,866/ for the month of December 2009. The said salary certificate Ex. PW2/A was duly proved by PW2 Sandeep being head Clerk of the school during his deposition after producing relevant service record. Nothing has brought up on record to impeach the credit of the document as respondent did not put any question by way of cross examination despite availing opportunity and hence I am left with no option to accept the same. A sum of Rs 70,000/ on the strength of disability certificate Ex. PW1/12 by taking Rs 2000/ for one percentage disability is granted after relying on the ratio of the judgment New India Insurance company Ltd Vs. I. M. Kumar 2010 (3) TAC 415 (Madras). 19 It has to be taken care that the petitioner had exhausted 130 days leaves including half day leaves for 70 days + 107 days earned leaves during his treatment. Although, during leave period the petitioner received his salary from his department but such leaves could have been utilized for some other purposes, so in this way he got this loss. So, these aspects have to be taken into consideration while determining the loss of income due to the injury sustained in an accident because of the negligent driving of the offending vehicle. I, therefore, award a compensation for four months at the rate of Rs. 35,866/ per month which comes to Rs. 1,43,464/ after relying upon the judgment of Hon'ble Division bench of Madhya Pradesh High Court titled as United India Insurance Company Ltd. Vs. Shyam Kumar and others as reported in 2006 ACJ 2092. The relevant portion is reproduced as under: Quantum - Injury - Principles of assessment - Leave - Sh. Dharam Singh Kataria Vs. Minesh MACP No. 212/10 ( Page no 1 to Page no.13) 9 Sh. Dharam Singh Kataria Vs. Minesh Contention that injured received salary for leave period from his employer - whether the injured is entitled to compensation for leave lost - Held: yes; he could have utilized such leave for some other purposes.
b) PAIN & SUFFERING: 20 Pain and suffering is covered under non pecuniary damages. To calculate the same, nature of injuries sustained by the injured, duration during which he got the medical treatment and was confined to bed, are some of the factors which are required to be taken into account.
21 In the present case, it is apparent on the basis of the medical record proved by petitioner that he had sustained multiple fractures due to which he must have undergone tremendous pain. The mental agony which the petitioner might have undergone at the time of accident, cannot be equated or quantified in terms of money. Physical pain which the petitioner must have undergone during the course of treatment would have been immense.
22 To compensate the petitioner under this head, I award a sum of Rs.40,000/ to the petitioner for pain and suffering.
c) CONVEYANCE & SPECIAL DIET :
23 PW1 during the course of his deposition has failed to
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Sh. Dharam Singh Kataria Vs. Minesh
substantiate the expenses incurred on conveyance and special diet during his treatment with an corroborative evidence, however, considering the nature of injuries sustained by him, he would have paid repeated visits to the hospital / doctor for his follow up treatment incurring expenses on conveyance. He must have required to take special diet to recover from the injuries sustained by him 24 I, therefore, award a sum of Rs 20,000/ to the petitioner towards Conveyance and special diet.
25 Keeping in view the nature of injuries and nature of evidence following amount shall be just compensation: 1 Disability upto 35% : Rs 70,000/ 2 Loss of income for four months @ Rs. 35866/ per month : Rs 1,43,464/ 3 Pain and Suffering : Rs. 40,000/ 4 Special Diet & Conveyance : Rs. 20,000/ 5 Loss of amenities : Rs 25,000/ ___________________________________________________________________ Total : Rs. 2,98,464/ (Rupees Two lacs Ninety Eight Thousand Four Hundred and Sixty Four only) Sh. Dharam Singh Kataria Vs. Minesh MACP No. 212/10 ( Page no 1 to Page no.13) 11 Sh. Dharam Singh Kataria Vs. Minesh INTEREST 26 The petitioners are awarded interest @ Rs. 7.5% per annum from the date of filing of petition i.e. 15/07/2010 till realization. RELEASE 27 From out of the awarded amount, 50% amount with interest is ordered to be released. The balance amount with interest is ordered to be kept in the FD of the petitioner for a period of two years with no facility of loan or advance without permission of the Tribunal. However, petitioner is at liberty to take monthly/quarterly interest on the FD.
LIABILITY 28 No evidence on behalf of the respondents has been produced. 29 Admittedly the offending vehicle was being driven by R1. It was owned by R2 and was insured with R3. Therefore, R1, is the principal tort feasor. R2 and R3 are vicariously liable. All the respondents are held jointly and severally liable to pay the awarded amount. However, since the vehicle was insured with R3, therefore, it shall pay the awarded amount.
30 In view of the above discussion issue no. 2 is decided in favour of the Sh. Dharam Singh Kataria Vs. Minesh MACP No. 212/10 ( Page no 1 to Page no.13) 12 Sh. Dharam Singh Kataria Vs. Minesh petitioners and against the respondents.
ISSUE NO. 3
Relief.
31 In view of findings on issues no. 1 and 2, the petitioner is awarded Rs. 2,98,464/ (Rupees Two lacs Ninety Eight Thousand Four Hundred and Sixty Four only) with interest @ 7.5% per annum from the date of filing of petition i.e. 15/07/2010 till realization.
32 The awarded amount be deposited by R3 within 30 days from today failing which interest @12% per annum shall be charged w.e.f. 09/01/2012 till realization.
33 R3 shall inform the petitioners through registered post that the cheques of the awarded amount are being deposited so as to facilitate the petitioner to collect the cheques. R3 to file the calculation of the amount deposited. A copy of the calculation be sent to the petitioner.
34 Petitioner to place on record his photographs, copies of election Icards or copies of driving licence or copies of passport or any other document (if not filed Sh. Dharam Singh Kataria Vs. Minesh MACP No. 212/10 ( Page no 1 to Page no.13) 13 Sh. Dharam Singh Kataria Vs. Minesh earlier) to establish his identity.
35 Copy of the award be supplied to both the parties. (free of cost) 36 File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
On 8/12/2011 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
ALL PAGES SIGNED
Sh. Dharam Singh Kataria Vs. Minesh MACP No. 212/10
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