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Delhi District Court

Rajesh @ Nitin Chaturvedi (Injured) vs Ayush Bhargava (Driver) on 29 July, 2020

           IN THE COURT OF SH. VIVEK KUMAR GULIA
           P.O : MOTOR ACCIDENT CLAIMS TRIBUNAL
         EAST DISTRICT : KARKARDOOMA COURTS: DELHI


                           MACP No. 126/2016
                 Unique Case I.D. No. DLET01­000950­2014

Rajesh @ Nitin Chaturvedi (injured)
S/o Sh. Surendra Nath Chaturvedi
R/o A­49, Ist floor, GD Colony, Opposite
Animal Hospital, Near Sunday Bazaar,
Mayur Vihar Phase­III, Delhi.                            ........................Petitioner
                                Versus
1. Ayush Bhargava (Driver)
   S/o Sh. Akhil Bhargava
   R/o A­29, Sector­21, Noida, U.P.
2. Nupur Bhargava (Owner)
   R/o P­504, Sector­21,
   Gautam Budh Nagar, Noida, U.P.
3. ICICI Lombard General Insurance Co. Ltd (Insurer)
   414, Vir Savarkar Marg, Near Sidhi Vinayak
   Temple, Prabhadevi, Mumbai,
   Maharashtra.                             ...................Respondents

Date of institution                       : 12.09.2014
Final arguments heard                     : 03.03.2020
Date of Award                             : 29.07.2020

                                      AWARD

1. By this award, claim petition filed by petitioner under section 166 & 140 of Motor Vehicles Act, 1988, would be decided.

MACP No. 126/16; Rajesh @ Nitin Chaturvedi vs. Ayush Bhargava & Ors. 1 of 13

2. The important facts of the case are as under. Petitioner Rajesh @ Nitin Chaturvedi suffered grievous injuries on account of a motor vehicular accident happened on 23.03.2014 at 11:30 p.m., at red light crossing of sector­53 (Gisore Village), Noida, U.P. In respect of this accident, an FIR vide Crime No.349/14, u/s 279/338 IPC was registered at PS Sector­24, Gautam Budh Nagar, U.P. As per the FIR, wife of injured mentioned that her husband got injured in an accident caused by vehicle bearing registration No. UP­16AF­7175 (in short "offending vehicle") at the aforesaid time and place. It is further mentioned that respondent No. 1 had caused the accident and he had promised that he would bear all the medical expenses and further would pay their house rent for two months but subsequently did not fulfill the commitment. In view of above, the petitioner claimed compensation of Rs.25 lakhs alongwith interest.

3. After service of notice of petition, all the 3 respondents marked appearance and filed their separate written statements. Respondent No.1 and 2 filed joint written statement mentioning that respondent No.1 and car bearing registration No. UP­16AF­7175, owned by respondent No.2, has no connection with the said accident and rather respondent No.1 helped the injured in shifting hospital when he was passing through the place of accident. They further mentioned that the injured pressurized him to pay money and to settle the dispute. Further, respondent No 3 / insurance company filed written statement taking general defences.

MACP No. 126/16; Rajesh @ Nitin Chaturvedi vs. Ayush Bhargava & Ors. 2 of 13

4. On the basis of pleadings, following issues were framed on 15.01.2015 :­

(i). Whether petitioner has suffered injuries in road side accident on 23.03.2014 involving vehicle i.e. Hyundai Verna car bearing registration no. UP­16AF­7175 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.

5. In order to establish his claim, petitioner examined 3 witnesses.

5.1 PW1 (petitioner), on the strength of affidavit Ex.PW1/A and additional affidavit Ex.PW1/B, deposed regarding the manner of accident, medical treatment, his earnings and disability suffered by him on account of accident and relied upon the documents i.e. certified copy of FIR, treatment record, two newspaper cuttings, his PAN card, his voter card and original medical bills Ex.PW1/1 to Ex.PW1/7. 5.2 PW2 Smt. Sonu Chaturvedi (wife of the petitioner), deposed on the lines of PW1.

5.3 PW3, Dr. Sanjeev Gambhir, Specialist (Ortho), LBS Hospital, Delhi, proved the disability certificate of petitioner Ex.PW3/A and assessment sheet Ex.PW3/B mentioning 30% permanent disability in relation to left lower limb and both upper limbs.

6. Respondents No.1 examined two witnesses in his defence. R1W1 (respondent No.1) and R1W2, Shivender Singh Chauhan, MACP No. 126/16; Rajesh @ Nitin Chaturvedi vs. Ayush Bhargava & Ors. 3 of 13 deposed on the lines of written statement.

7. Respondent No. 3 / insurer did not lead any evidence.

8. I have heard Sh. Lovesh Seth, counsel for petitioner and Sh. Mohd. Rafi, Ld. counsel for respondent No.3/ insurer. Record of the case has also been perused.

ISSUE NO.1:

9. In an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is tested on the touchstone of principle of preponderance of probabilities.

10. The petitioner (PW1) is the sole eye witness of the accident. He has deposed that on 23.03.2014 at about 11.30 p.m., he was returning to his house after leaving his mother at his brother in law's house on his motorcycle bearing registration No. UP­27Q­5321 and when he was passing through the crossing of Sector­53, Noida, a Hyundai Verna car bearing registration No. UP­16AF­7175, being driven by respondent No. 1 at very high speed and in rash and negligent manner, came from left side and hit the motorcycle of petitioner with force and he fell down on road and received injuries. He has further mentioned that initially he was taken to Prakash Hospital and then shifted to Kailash Hospital. Further, he stated that in Kailash Hospital, an agreement was arrived between his wife and respondent no.1 that respondent no.1 would bear the expenses of petitioner's MACP No. 126/16; Rajesh @ Nitin Chaturvedi vs. Ayush Bhargava & Ors. 4 of 13 treatment and would also pay the rent of the house of the petitioner for two months. It is further mentioned that at the time of discharge of the petitioner, respondent no.1 did not fulfill the promise to clear the dues of Kailash Hospital and thereafter, FIR was got registered against respondent no.1. During his cross­examination, petitioner replied that his motorcycle was hit from left hand side, however, he denied the suggestion that the red light of the crossing, where the accident took place, was not functioning. He further mentioned that someone amongst the crowd had apprehended the driver at the spot and asked him to take the petitioner to the hospital. He further mentioned that police reached at the hospital and he told the police about the accident. He also stated that he was fully conscious at the time of accident. Further, he denied the suggestion that he was taken to hospital in red colour Wagon­R car and not in Hyundai car. Further, he denied the suggestion that his motorcycle skidded resulting into injuries to him and that offending vehicle had not caused the accident.

11. On the other hand, R1W1 and R1W2 deposed that on 23.03.2014, when they were passing through red light crossing of Sector­53, Noida, they saw crowd gathered on the other side of road and then they stopped their car and went there and saw that a person was lying on the road in injured condition and therefore, as responsible citizens and out of compassion, they put the injured into one Wagon­R car with the help of other persons and took him to Prakash Hospital. Further, they also mentioned that respondent no.1 called the PCR van MACP No. 126/16; Rajesh @ Nitin Chaturvedi vs. Ayush Bhargava & Ors. 5 of 13 standing few meters ahead of Iskon Temple. During cross­examination, R1W1 admitted that he had signed the compromise letter Mark­A but further explained that he had signed the same under pressure as he was to appear in his final year law examination. He further admitted that Rs.40,000/­ was paid by him at Prakash Hospital.

12. In support of his defence, R1W1 has placed on record transcript of conversation held between PCR 43 and PCR 41 Ex.RW1/2 and the photograph Ex.R1W1/3 to show that no damage was caused to the offending vehicle after the accident. Alongwith transcript, CD Ex.R1W1/1 is also placed on record. It is claimed that the said conversation was recorded by respondent No.1 on his mobile phone and then it was converted into CD. In view of this court, the said CD and transcript are not reliable as their source is not confirmed. Moreover, though it is claimed that SI Dhananjay Singh, PCR 43 had taken the said photograph of his car after the alleged incident, however, the said police official was not produced in order to substantiate the said claim. In the absence of testimony of the person who had clicked the photograph, it cannot be accepted that photograph was taken immediately after the accident.

13. It is not disputed that FIR was registered on 03.05.2014 after delay of 41 days. It is found that the reason for delay in filing of FIR has been mentioned in the FIR itself. It is also not disputed that respondent No.1 had entered into agreement Mark A with the wife of petitioner at Kailash Hospital. The agreement makes it clear that MACP No. 126/16; Rajesh @ Nitin Chaturvedi vs. Ayush Bhargava & Ors. 6 of 13 respondent No.1 agreed to bear all the medical expenses and rent of house of the petitioner for two months and on the said assurance, wife of the petitioner agreed for not initiating police action. Though respondent No.1 claimed that he was pressurized to enter into the said agreement, however, he has not given any plausible explanation. It is evident that the said agreement was written in Kailash Hospital where the petitioner was shifted after initial treatment given at Prakash Hospital. It is also not disputed that the respondent No.1 had gone to Kailash Hospital after he left for home from Prakash Hospital and thus there is no explanation as to why he had gone to Kailash Hospital when he has claimed that he had not caused any accident. In view of this court, the plea of petitioner side that respondent No.1 had come there voluntarily as he wanted to settle the dispute, appears more probable. Further, even respondent no.1 failed to give any explanation as to why he did not lodge any complaint to the police or any other authority against wife of petitioner for pressurizing him to sign the said agreement. It is also pertinent to mention here that the said agreement was also signed by the doctor / CMO of Kailash Hospital and in view of this, it appears quite unlikely that respondent No.1 was forced to sign the agreement.

14. Furthermore, no explanation has been given by respondent no.1 as to why he had paid a sum of Rs.40,000/­ at Prakash Hospital for the treatment of petitioner. Moreover, though respondent no.1 deposed that petitioner was taken to Prakash Hospital in red Wagon­R MACP No. 126/16; Rajesh @ Nitin Chaturvedi vs. Ayush Bhargava & Ors. 7 of 13 car but he has not furnished details of said car. Moreover, though respondent No.1 has claimed that he was studying law at the relevant time, still omission on his part to inform the police about the accident belies his version. Further, respondent no.1 has admitted that he was chargesheeted in the aforesaid criminal case for causing accident in rash and negligent manner and that has not been challenged by him in any manner.

15. The MLC Mark­G and treatment record Ex.PW1/3 of the petitioner make it clear that petitioner suffered grievous injuries in the accident.

16. In view of above, it stands proved that petitioner sustained grievous injury due to rash and negligent driving of offending vehicle by respondent no. 1. Issue no. 1, accordingly, is decided in favour of the petitioner and against the respondents.

17. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be pittance.

MEDICAL EXPENSES:

18. The petitioner has placed on record medical bills Ex.PW1/2 and Ex.PW1/7 for a total sum of Rs.1,97,976/­. All bills are in original and found in order. Therefore, a sum of Rs.1,97,976/­ is granted to the MACP No. 126/16; Rajesh @ Nitin Chaturvedi vs. Ayush Bhargava & Ors. 8 of 13 petitioner under this head.

LOSS OF INCOME (DURING TREATMENT):

19. The discharge summary issued by Kailash Hospital indicates that in the accident petitioner had suffered fracture in both his arms and left leg. Further, his surgery was performed for fixation of plate in hands (humerus) and further ILN femur and debridement (L) thigh, debridement and deltoid ligament repair (L) ankle was done and for this he remained hospitalized there from 24.03.2014 to 31.03.2014. Further, it is found that he was again hospitalized in Kailash Hospital from 04.04.2016 to 07.04.2016 for implant removal. It is deposed by the petitioner that he was advised bed rest for 4­6 months. Though no medical certificate was filed to this effect, however, considering the nature of injuries suffered by petitioner, it may be safely assumed that petitioner might have not been able to join his work at least for 4 months after the accident.

20. Further, petitioner placed on record ITRs for the assessment years 2013­14 and 2014­15 Mark­D and C respectively to show his annual income Rs.3,26,870/­ and Rs.3,25,190/­ respectively. Further the income tax liability was Rs.1112/­ and Rs.955/­ respectively. Thus, considering the annual income of Rs.3.25 lakhs, the monthly income of petitioner comes to be Rs.27,083/­.

21. In view of above, petitioner is granted Rs.1,08,332/­ (27,083x4) under this head.

MACP No. 126/16; Rajesh @ Nitin Chaturvedi vs. Ayush Bhargava & Ors. 9 of 13 PAIN AND SUFFERING:

22. As discussed above, the petitioner suffered multiple fractures and was operated twice for treatment. Further, it is also clear that treatment continued for a long time and even after completion of his treatment, he suffered permanent physical disability to the extent of 30% in relation to left lower limb and both upper limbs. In such circumstances, this court finds it appropriate to award the petitioner Rs.80,000/­ as compensation under this head.

CONVEYANCE, ATTENDANT & SPECIAL DIET CHARGES:

23. Though no specific evidence has been led on this aspect, still considering the period of treatment and nature of injuries suffered by the petitioner, an inference can be drawn that petitioner had to spend considerable amount to visit hospital number of times and for his special diet for the purpose of early recovery post surgery. Further, though no specific evidence qua hiring of attendant has come, however, considering the nature injuries and duration of treatment, it cannot be ignored that family members of the petitioner had to render their services for providing assistance to the petitioner in his routine activities and that must had suffered their work/job. For claiming compensation, necessity of employing a professional attendant/ care taker is not required and the petitioner should be compensated for the value of services of the family members, which has been or would be necessitated by the wrong doing of the driver. (Refer : DTC & Ors Vs. Lalita, 1983 ACJ 253). In view of above, a total sum of Rs.50,000/­ is MACP No. 126/16; Rajesh @ Nitin Chaturvedi vs. Ayush Bhargava & Ors. 10 of 13 awarded under this head.

LOSS OF FUTURE INCOME :

24. PW3 Dr. Hemant Sharma proved that petitioner suffered permanent disability to an extent of 30% in relation to both upper limbs and left lower limb and relied upon disability certificate Ex.PW3/A. Though the doctor has not clarified about functional disability in respect of entire body, however, considering the testimony of PW3 and assessment sheet Ex.PW3/B, it becomes clear that petitioner would definitely face difficulty in shoulder movement and further difficulty in lifting weight with both hands. Though, PW3 mentioned that petitioner will have little impact on his working capacity, however, this court is of the view that the permanent physical disability to the extent to 30% in both upper limbs and left lower limb is bound to affect his efficiency and capacity to some extent. In view of this court, the functional disability of the claimant can be considered as 10% in relation to whole body and the corresponding loss of future income.

25. As discussed above, the monthly income of petitioner was Rs.27,083/­ per month. As per the driving licence Mark­E of the petitioner, his date of birth is 21.06.1982, which means he was 32 years old at the time of accident. Therefore, multiplier of 16 would be applicable in his case. Further, 40% future prospects has also to be taken into account in this case. In view of this, the total loss of future income would come to be Rs.7,27,991/­ [10% of (27,083 x 140/100) x 12 x16] and this amount is awarded to the petitioner accordingly.

MACP No. 126/16; Rajesh @ Nitin Chaturvedi vs. Ayush Bhargava & Ors. 11 of 13

26. Thus, the compensation awarded to the petitioner is summarized as under:­ Sl. No. Head of compensation Amount

1. Medical Expenses Rs. 1,97,976/­ Loss of income (during Rs. 1,08,332/­

2. treatment)

3. Pain & Suffering Rs. 80,000/­ Conveyance, Attendant and Rs. 50,000/­

4. Special Diet expenses

5. Loss of future income Rs. 7,27,991/­ TOTAL Rs. 11,64,299/­(rounded off Rs.11,65,000/­)

27. Since the interim compensation of Rs.25,000/­ was paid to the petitioner vide order dated 11.09.2015, the same shall be adjusted.

28. The petitioner has conducted the proceedings in his case diligently. Therefore, he is entitled for interest @ 8% per annum on the aforesaid award amount from the date of filing of the petition till date of realization.

LIABILITY

28. Now, the question arises as to which of the respondents is liable to pay the compensation amount. As insurance company has contractual and statutory liability to indemnify the insured and in this case, insurance company has not been able to prove that any term or condition of insurance policy was breached/violated by insured, therefore, respondent no.3/insurance company becomes liable to pay the aforesaid compensation amount.

MACP No. 126/16; Rajesh @ Nitin Chaturvedi vs. Ayush Bhargava & Ors. 12 of 13 RELIEF:

29. In view of the findings on said issues, this Tribunal awards a total compensation of Rs.11,40,000/­ (Rs. Elevan Lakhs Forty Thousand Only) alongwith interest @ 8% per annum in favour of petitioner and against the respondent No. 3 / insurer w.e.f. date of filing of the petition till the date of its realization and same is required to be deposited with this Tribunal within 30 days.

30. Form IV­B in terms of MCTAP is annexed herewith as Annexure A. Announced in the open (Vivek Kumar Gulia) Court on 29.07.2020 Presiding Officer­MACT (East) (Total 13 pages) Karkardooma Courts, Delhi MACP No. 126/16; Rajesh @ Nitin Chaturvedi vs. Ayush Bhargava & Ors. 13 of 13