Delhi District Court
Ram Avtar Kashyap vs Sh. Nirdosh Kumar S/O Sh. Sheetal Dutt ... on 24 March, 2008
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IN THE COURT OF SH. DILBAG SINGH : PRESIDING OFFICER : MACT :
DELHI
Petition No. 15/07, 24/07 &25/07
Date of filing of Petition 01.02.07
Date of conclusion of final arguments/
Date of reservation of judgment 17.03.08
Date of Award 24.03.08
In re:
SUIT NO. 15/07
1. Ram Avtar Kashyap, S/o Late Sh. Ram Saran
2. Vijay Kumar, S/o Late Sh. Ram Saran
3. Vimla, W/o Sh. Bishan
4. Vidya, W/o Sh. Ram Singh Bhati.
5. Raj Kumari, W/o Sh. Rajvir
6. Kaushalaya, W/o Sh.Vijay Singh
7. Jai Kumari, W/o Sh. Raj Singh
(All are R/o T-650, L-4-F, Gali no. 21, Baljit Nagar, Delhi)
....... Petitioners
Versus
1. Sh. Nirdosh Kumar S/o Sh. Sheetal Dutt Sharma
R/o village and Post Chipiyana,
Distt. Gautam Budh Nagar(U.P.)-201301
2. The New India Assurance Co. Ltd
5th Floor, Tower-II, Jeevan Bharti Bldg,
124, Cannaught Place, New Delhi
........... Respondents
SUIT NO. 24/07
1. Virender Arora, S/o Late Sh. Madan Lal Arora R/o. 5303, Street no. 115, Sant Nagar, Burari, Delhi ... Petitioner Continue.....
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Versus
1. Jag Mohan S/o. Jai Prakash R/o. Village P.S. Hapur, Ghaziabad, U.P.
2. Sh. Nirdosh Kumar S/o Sh. Sheetal Dutt Sharma R/o village and Post Chipiyana, Distt. Gautam Budh Nagar(U.P.)-201301
3. The New India Assurance Co. Ltd 12/1, Jeevan Raksha Building, Asaf Ali Road, New Delhi .............. Respondents SUIT NO. 25/07 Reshmi W/o Subedar R/o. 21A/3806, Baljeet Nagar, New Delhi ... Petitioner Versus
1. Jag Mohan S/o. Jai Prakash R/o. Village P.S. Hapur, Ghaziabad, U.P.
2. Sh. Nirdosh Kumar S/o Sh. Sheetal Dutt Sharma R/o village and Post Chipiyana, Distt. Gautam Budh Nagar(U.P.)-201301
3. The New India Assurance Co. Ltd 12/1, Jeevan Raksha Building, Asaf Ali Road, New Delhi .............. Respondents JUDGEMENT/AWARD Continue.....
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1 By this common judgment/award I shall dispose of the above mentioned petitions filed u/s 163A & 166 of Motor Vehicles Act, 1988, as amended upto date (hereinafter referred to as 'the Act') wherein compensation has been claimed on account of accidental injuries and fatal injuries. Petitions are being disposed by the common award as the same arises out of same vehicular accident.
2 Brief facts as culable from the records of the case are being stated first. On 27.11.06 at about 1:30 p.m Shri Virender Arora, Smt. Reshmi and Shanti Devi(since deceased) alongwith some others were coming from Dehradoon to Delhi in a tempo. When they reached village Tajpur under P.S. Chhapar, Muzaffar Nagar, a TATA-407 no. UP-16B-4722 came from opposite direction at a very high speed. It was being driven rashly and negligently and hit against the tempo. As a result the occupants of the tempo sustained grievous and fatal injuries. These persons died in the accident. Case bearing FIR no. 223/06 & 627/06 were registered u/s. 279/337/338/304-A/427 IPC at P.S. Chhaper. R-1 Shri Jagmohan, R-2 Shri Nirdosh Kumar & R-3 new India Assurance Company in suit no. 24/07 and 25/07 are the driver and owner of the tempo bearing no. UP-16B-4722. In suit no. 15/07 R-1 is the owner and R-2 is the insurer. 3 Notice of the petitions were given to the respondents. R-1 and R- 2 supplied an advance copy of WS to the counsel of petitioner and counsel for insurance company on 17.12.08 and undertook to file the WS during the Continue.....
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course of day. R-3 insurance company in its WS has taken its usual statutory objections as contemplated u/s. 149(2) of the Act concerning breach of terms and conditions of insurance policy. Fact of TATA 407 Tempo No. UP-16B-4722 being insured vide policy no.321600/31/09484 with validity period from 03.02.06 to 02.02.07 in the name of Shri Nirdosh Kumar Singh has been admitted(date of accident 27.11.06). However, it was not so done. Be that as it may, it makes no difference as the issues were framed and evidence was led. In suit no. 24/07 and 25/07 the following issues were framed:-
1 Whether Shri Virender Arora and Ms. Reshmi sustained injuries on account of rash and negligent driving of R-2 of vehicle no.
TATA 407 no. UP-16B-4722 on 27.11.2006 at village Tajpur district Muzaffar Nagar?
2 What amount of compensation the claimant is entitled to and from whom?
3 Relief.
4 In suit no. 15/07 following issues were framed:-
1 Whether death of Smt. Shanti Devi arose out of use of Tata 407 no. UP-16B-4722?
2 What amount of compensation the claimants are entitled to and from whom?
3 Relief.
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5 As the petitions were not being perused diligently by the petitioners I had passed orders on 29.10.07 debarring the petitioners from interest w.e.f. 29.10.07 to 17.12.08.
6 Petitioners in support of their case have examined Shri Vijay Kumar as PW1 in suit no. 15/07, Shri Virender Arora in suit no. 24/07 and Smt. Reshmi as PW2 in suit no. 25/07. Per contra respondents have not led any evidence.
7 Arguments were heard at bar. Ld. counsel Shri Anshuman Bal for the petitioner, Ld counsel Shri Rakesh Yadav for driver and owner and Shri Shyam Singh for insurance company have been heard at length. 8 I have carefully perused the records of the case and considered the submissions. My issue-wise findings are as follows:-
ISSUE NO.1 in suit no. 24/07, 25/07 & 15/07
9 Petitioners Smt. Reshmi and Shri Virender Arora in context of this issue have proved their affidavits as Ex.PW1/X and Ex.PW2/X. They have also proved the documents as Ex.PW1/1 to Ex.PW1/5 and Ex.PW2/1 to Ex.PW2/15. Shri Virender Arora in para 1 of Ex.PW1/X has testified that on 27.11.06 he had sustained injuries on account of negligent driving by driver of vehicle no. UP-16B-4722. He has also testified that it had come from opposite side and was being driven rashly and negligently. He was cross- examined at length by Ld counsel Shri Rakesh Yadav for R-1 & R-2. During cross-examination this witness has remained firmed on his version concerning rashness and negligence. He has testified that he was in a position to see/view the front view from the place where he was sitting. He Continue.....
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has testified that there was no much traffic on the road. He has denied the suggestion concerning rashness and negligence not being there on the part of the driver of the tempo no. UP-16B-4722. He has placed on record the records of the criminal case. FIR no. 223/06 stands placed on record. In the same it stands mentioned that driver of vehicle no. UP-16B-4722 drove it in a rash and negligent manner.
10 Smt. Reshmi in her affidavit Ex.PW2/X has corroborated the version of Shri Virender Arora. She has remained firmed in her cross- examination and has testified that the offending tempo no. UP-16B-4722 had struck the tempo very forcefully in which he was sitting. She has denied the suggestion that the tempo driver in which she was traveling was rash and negligent.
From the testimony of Shri Virender Arora and Smt. Reshmi as discussed above, I have no hesitation to return a finding concerning rashness and negligence of the driver of tempo no. UP-16B-4722 and I order accordingly.
11 My conclusion drawn above stands substantiated from the fact that driver of tempo has not stepped into the witness box for which an adverse inference has been withdrawn against him. New India Assurance Company Ltd vs. Dhanesh Kumar and Anothers reported in 1(1999) ACC 561. Therefore issue of rashness and negligence is decided in favour of the petitioners and against the respondents. 12 As issue of rashness and negligence stand decided in favour of the petitioners, decision of issue in suit no. 15/07 goes automatically in favour of the claimants for the reason that bigger contains the smaller in it. In suit no. 15/07 question to be decided was as to whether the death of Smt. Reshmi arose out of huge of no UP-16B-4722. FIR no. 223/06 categorically establishes that death of Smt. Reshmi took place on account of sustainment of accidental injuries on 27.11.06. Therefore, there is no hitch in deciding the issue in favour of the claimants. I order accordingly.
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In view of the decision of issue no. 1 in favour of the claimants, the amount of compensation has to be assessed individualised. My individualised assessment of compensation is as follows:- Suit no. 15/07 13 Petitioners have claimed a sum of Rs. 10 Lacs in this petition u/s. 163 A. Deceased as per the admitted case of the claimants in their petition was aged 70 years. She has been shown as a housewife and in column no.6 it stands mentioned that the column is not applicable to the petitioner. In the evidence led by way of affidavit Ex.PW1/X has been submitted that in para 1 and 2 to the effect that deceased was 70 years of age and she was a housewife and she was doing all the household work and was having very good health at the time of accident.
14 Counsel Shri Anshuman Bal has submitted that deceased should be treated as housewife and her income should be taken of a skilled worker as per the mandate of Hon'ble High Court in which housewife has been held to be a minimum skilled wager. This assertion was strongly refuted by Ld counsel Shri Shyam Singh. He has submitted that deceased was 70 years of age and no proof with respect to her income has been given. He has submitted that in the petition as well as in the Ex.PW1/X no dependency has been shown and no proof with respect to income has been given. He has submitted that income of the deceased can be taken as 15,000/- per annum as per mandate of 163A.
15 I have considered the respective submissions carefully. No doubt petitioners have not led proper evidence concerning income of the deceased. No doubt no dependency has been proved by the claimant. Still the fact remains that a loss was caused to the claimants due to the death of the deceased. Version concerning longevity of the deceased and her good health has gone unchallanged and uncontroverted. Assertion of Ld counsel for the petitioners concerning taking the income of the deceased as a minimum skilled wager cannot be allowed in the present case as no Continue.....
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satisfactory evidence has been led in this regard. Another reason to disallow the same is that dependency of the claimants have not been shown. Shri Ram Avtar Kashyap is reported to be died. This goes against the assertion of the claimants concerning longevity of life. The ages of the claimants have not been given. Age of Shri Vijay Kumar is 40 years which goes to show that all the claimants must be major. Therefore, argument concerning there being no dependency has also to be considered. Taking an overall view of the above discussed facts I deem it expedient to award a consolidated sum of Rs. 1,19,000/- under all the possible and probable heads. The above mentioned amount shall be apportioned amongst the petitioners equally. Each claimant as many in para 1 of Ex. PW1/X shall get a sum of Rs. 17,000/-. Therefore, issue no. 2 in suit no. 15/07 is decided in terms above. Suit No. 24/07 16 My head wise assessment of compensation is as follows:-
TREATMENT EXPENSES
17 Ld counsel Shri Anshuman Bal during the course of arguments fairly conceded that there were no treatment bills proved by the petitioner on record. He requested for award of treatment expenses on a notional basis. Counsel Shri Shyam Singh for insurance company has submitted that in view of the failure of the petitioner to place on record/prove treatment bills no amount can be awarded. He argued that treatment of the petitioner has taken place in a Govt. Hospital and was free of cost.
I have carefully considered the respective submissions I do not agree with ld counsel Shri Shyam Singh as it is common knowledge that some amount has to be spent on treatment expenses even if one takes treatment in a Govt. Hospital. In the present case, Shri Virender Arora has Continue.....
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obtained treatment in Lok Nayak Hospital for fracture of shoulder from 27.12.06 to 25.01.07. He was advised physiotherapy and SWD. He was treated for fracture of clavicle. It was conceded by Shri Anshuman Bal that there was no indoor patientship period. It was also conceded that last visit to the hospital was on 28.01.06 in room no.1 as is evident from the reverse of Ex.PW1/7. Keeping in view the nature of injury, period of treatment and nature of treatment as per Ex.PW1/7, I deem it expedient to award a sum of Rs.5,000/- under the head of treatment expenses.
LOSS OF EARNING 18 Petitioner in his petition has claimed that he has suffered permanent disability. In affidavit Ex.PW1/X it stands mentioned that he could not work on account of injuries for a period of 6 months. Ld counsel Shri Anshuman Bal requested for award of loss of earning for a period of 6 months. The same was opposed by Ld counsel Shri Shyam Singh vehemently who submitted that no loss of earning can be given in this case and no indoor treatment was there. Keeping in view the respective submissions coupled with perusal of the records of the case, I deem it expedient to award loss of earning for a period of 2 months. The reason for doing so is that fracture of shoulder still take a period of 2 months for healing. Petitioner has placed on record Ex.PW1/7 which shows that petitioner was under active treatment for a period of one month. Taking a liberal view I award loss of earning for a period of 2 months.
19 The next question which immediately arises is the rate at which loss of earning is to be awarded. Petitioner in this regard has proved Continue.....
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Ex.PW1/3. In the same income from profession has been shown as Rs.1,09,436/-. This was filed on 28.07.06 i.e prior to the accident. There is no hitch in accepting this as income proof of the petitioner. Monthly income of the petitioner in view of Ex.PW1/14 can be taken as Rs. 9,119/-(say Rs. 9,200/-). Therefore, the amount which can be awarded under the head of loss of earning comes to Rs. 18,400/-.
SPECIAL DIET, CONVEYANCE & ATTENDANT CHARGES 20 Petitioner in his affidavit has claimed a sum of Rs. 15,000/- on special diet and Rs. 10,000/- under the same head of conveyance & no amount under the head of attendant charges has been claimed. Ld counsel Shri. Shyam Singh has argued that amounts claimed are highly excessive. He has submitted that no proof in this regard has been led. Ld counsel for the petitioner fairly conceded that no proof with respect to special diet and conveyance was there on the records of the case. I have considered the respective submissions. I have also considered the nature of injury, nature of treatment, period of treatment and other facts and circumstances of the case. Keeping in view the facts and circumstances of the case I deem it expedient to award a consolidated sum of Rs. 6,000/- under the head of special diet, conveyance and attendant charges.
PAIN & SUFFERINGS 21 Petitioner has obtained treatment for fracture of shoulder. He visited the hospital on 3-4 occasions. He is a resident of Sant Nagar, Burari Continue.....
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and has obtained treatment at Lok Nayak Hospital. Keeping in view all the facts and circumstances of the case I deem it expedient to award a sum of Rs. 15,000/- under the head of pain & sufferings.
The amounts of compensation assessed under the different heads are being chunked together herein below : -
1. Treatment Expenses : Rs. 5,000/-
3. Loss of earning : Rs.18,400/-
4. Special diet and conveyance : Rs. 6,000 /-
& attendant charges
6. Pain and sufferings : Rs. 15,000/-
_________
_________
Total : Rs. 44,400/-
RELIEF
22 I, therefore, pass an award for a sum of Rs. 44,400/- in favour
of petitioner and against the respondents. Petitioner shall also be entitled to interest @ 7% p.a. w.e.f. date of filing of petition till realization in view of Section 171 of the Act except for the period from 29.10.87 to 17.12.07. Suit no. 25/07 23 My head wise assessment of compensation is as follows:-
TREATMENT EXPENSES
24 Petitioner in his affidavit EX.PW2/X has claimed a sum of Rs.
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30,000/- on treatment expenses. Ld counsel Shri Anshuman Bal fairly conceded that no proof with respect to treatment expenses was there. Ld counsel Shri Anshuman Bal requested for award of notional expenses in view of the nature of injuries and indoor patientship period of 3 days. Ld counsel Shri Shyam Singh on the other hand submits that since the treatment was obtained in the Govt. Hospital no amount can be awarded as treatment was free. I have considered the respective submissions. I am not in agreement with Shri Shyam Singh as it is a common knowledge that even if the treatment is obtained in a Govt. Hospital sum expenses are bound to be there under the treatment expenses. Ex.PW1/8 reveals that petitioner had sustained injuries on scalp. She had history of loss of consciousness, vomiting. She was found having swelling on occipitel region. In investigation it was revealed that there was large scalp harnetion in diastolie fracture left coronal sutui at SDH. There was contusion in left occipitel region. She was treated for left parietal craniotomy evacuation of EDH under general anesthesia. Last visit to the hospital as per records is that of 23.01.07. Petitioner had got her MRI done privately as is evident from Ex.PW1/14 and Ex.PW1/15. Keeping in view the medical records placed on record by the petitioner I have no hesitation in awarding a sum of Rs. 10,000/- under the head of treatment expenses and submissions of Ld counsel for the respondents to the contrary are disallowed.
LOSS OF EARNING 25 In the affiavit Ex.PW2/X it stands mentioned that petitioner is not in a position to do any household work on account of injuries. No disability Continue.....
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certificate has been placed on record. During corss-examination it has been admitted that all the medical papers were placed on record. Petitioner has not proved on record that she is still suffering from any illness. Keeping in view all the facts and circumstances of the case I deem it expedient to award loss of earning for a period of 3 months in the present case keeping in view the nature of injuries.
25 The next question which immediately arises is as to what rate the loss of earing is to be paid. In the present petition, petitioner has claimed herself to be a housewife. Therefore, there is no hitch in arriving at the amount of earnings of the petitioner as she can be considered as a skilled worker. Minimum wages of a skilled worker on 27.11.06(date of accident) were Rs.3,736/-(say Rs.3,800/-). Therefore, total amount payable under the head of loss of earning comes to Rs. 3,800x3= Rs. 11,400/-.
SPECIAL DIET, CONVEYANCE & ATTENDANT CHARGES 26 Petitioner in her affiavit has claimned a sum of Rs. 10,000/- on special diet and Rs. 5,000/- on conveyance. It was fairly conceded by the ld counsel for the petitioner that there was no proper proof and evi led in support of the expenses. In view of the same only notional expenses can be paid. Petitioner remained admitted for a period of 3 days. She is a resident of Baljit Nagar and has obtained treatment at Lok Nayak Hospital which is nearby. Discussion about nature of injuries has already been made. Keeping in view all the facts and circumstances of the case I deem it Continue.....
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expedient to award a sum of Rs.9,000/- under the head of special diet, conveyance and attendant charges. No amount under the head of attendant charges has been claimed.
PAIN & SUFFERINGS 27 Discussion about nature of injuries, nature of treatment and period of treatment has already been made and I do not deem it expedient to repeat the same. Keeping in view the nature of injuries, nature of treatment, period of treatment and other facts and circumstances of the case I deem it expedient to award a sum of Rs. 20,000/- under the head of pain & sufferings as petitioner sustained injuries on her head which is the most vital organ of the body.
The amounts of compensation assessed under the different heads are being chunked together herein below : -
1 Treatment Expenses : Rs.10,000/- 2 Loss of earning : Rs.11,400/- 3 Special diet, conveyance : Rs.9,000/-
& Attendant charges 4 Pain and sufferings : Rs.20,000/-
_________
_________
Total : Rs. 50,400/-
_________
_________
RELIEF
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28 I, therefore, pass an award for a sum of Rs.50,400/- in favour
of petitioner and against the respondents. Petitioner shall also be entitled to interest @ 7% p.a. w.e.f. date of filing of petition till realization in view of Section 171 of the Act except for the period from 29.10.87 to 17.12.07.
LIABILITY 29 Liability in all the above mentioned cases is that of insurance company for the reason that insurance company has not proved any breach of terms and conditions of insurance policy and it is not disputed that tempo no. UP-16B-4722 being insured at the time of accident. 30 Copy of this order be given to parties for necessary compliance. 31 File be consigned to record room.
Announced in the open court.
Dated : 24th March , 2008.
(DILBAG SINGH) JUDGE, MACT: DELHI Continue.....