Delhi District Court
Master Tanmay vs Sh. Yamin Khan on 8 October, 2012
IN THE COURT OF SH. DINESH BHATT, PO,MACT(NORTH)/ TIS HAZARI
COURTS, DELHI
INJURY CASE
Suit No.:568/11
Unique ID no.:02401C0541872011
Master Tanmay, Minor
Through his father/natural guardian,
Sh. Praveen Kumar
S/o Sh. S.N. Sharma
R/o H. No. 354, Firni Road,
Village Rani Khera, New Delhi ..........Petitioner
Versus
1. Sh. Yamin Khan
S/o Sh. Yasin Khan
R/o Village Amrohiya, P.S. Rasulabad,
Distt. Kanpur, U.P.
2. Smt. Vandana Garg
W/o Sh. Pawan Kumar Garg
R/o H. No. B1/90, G.F. B1, Block,
Ashok Vihar, PhaseII, Delhi
3. ICICI Lombard General Insurance
Co. Ltd.
Zenith House, Keshavrao Khade Marg,
Mahalaxmi, Mumbai ..........Respondents
Suit no.:568/11 Page 1/10
Date of Institution : 21/11/2011
Date on which order was reserved : 01/10/2012
Date of Decision : 08/10/2012
APPLICATION U/s 166 & 140 OF MOTOR
VEHICLES ACT 1988 FOR GRANT OF
COMPENSATION
JUDGMENT/AWARD:
1. This is a case for claim of compensation on account of injuries suffered by the minor petitioner in the road traffic accident dated 24/10/2011 caused within the jurisdiction of PS Burari, Delhi.
2. Petitioner's case is that on the day of accident minor petitioner was standing on the last stair case outside his house when suddenly vehicle bearing no. DL 1LP 1853 (offending vehicle) driven by respondent no. 1 in rash and negligent manner hit his right palm causing fall and grievous injuries. Petitioner was taken to hospital where FIR was lodged and MLC was prepared.
3. Respondent no. 1 is the driver, respondent no. 2 the owner and respondent no. 3 the insurer of the offending vehicle.
4. Respondent no. 1 & 2 have denied the involvement of the offending vehicle in the accident in question and stated that respondent no. 1 on asking of father of minor petitioner had offered help and that he was falsely implicated in the accident in question.
5. Respondent no. 3 has admitted the insurance policy but stated respondent no. 1 was not holding valid commercial driving license therefore, they are not liable. Suit no.:568/11 Page 2/10
6. Detailed Accident Report alongwith copy of FIR, site plan, MLC, copy of birth certificate of petitioner, driving license, RC, fitness, copy of seizure memo, mechanical inspection report, insurance policy and statement of eye witness have been filed on record.
7. From the pleadings of the parties following issues were framed for consideration:
1. Whether the petitioner suffered injuries in a road traffic accident dated 24/10/2011 due to rash and negligent driving of the offending vehicle bearing no.
DL 1LP 1853 driven by respondent no. 1 as alleged?
2. What amount of compensation the petitioner is entitled to and from whom?
3. Relief.
Issue wise findings:
8. Issue no. 1: PW1 has reiterated the stand of petition and stated that on 24/10/2011 at 03:00 p.m. while minor petitioner was standing on the last stair case outside his house was hit by offending vehicle driven by respondent no. 1 in rash and negligent manner causing grievous injuries. Petitioner was taken to Govind Singh Hospital thereafter, referred to Sant Parmanand Hospital and thereafter, treated in Sir Ganga Ram Hospital. FIR was lodged and MLC was prepared.
Respondent no. 1 & 2 have not crossexamined PW1. In crossexamination by respondent no. 3 PW1 stated that driver of the offending vehicle was not arrested before him Suit no.:568/11 Page 3/10 but stated that he had seen the offending vehicle as well as respondent no. 1 at the time of accident in question.
R1W1 stated that the accident in question was not caused by offending vehicle or that he was not responsible for the accident in question but was passing through the Gali and on asking of father of petitioner had offered help to take injured to the hospital but was falsely implicated in the case. In crossexamination he denied that the accident was caused by the offending vehicle due to his rash and negligent driving and also denied that he was caught on the spot. No other witness has been examined by respondent to this effect. Though R3W2 Rehman Khan who is stated to be travelling with respondent no. 1 at the time of accident in question was examined by respondent no. 3. He however, in chief did not disclose the mode and manner of accident but in crossexamination by respondent no. 1 & 2 stated that no accident took place with the offending vehicle driven by respondent no. 1. He also admitted that he had not given any statement before the IO. His statement therefore, to the extent of mode and manner of the accident is not very relevant.
As per FIR, a case U/s 279/337 IPC had been registered for the accident in question against respondent no. 1. As per site plan, the accident in question was caused at point 'A' in Gali near Village Burari. As per MLC, petitioner had been brought to the hospital with injuries suffered in the alleged road traffic accident. As per mechanical inspection report, no fresh damage was visible on the offending vehicle. Statement of eye witness Parveen Kumar (PW1) recorded U/s 154 Cr. PC has also been filed with DAR.
PW1 is the eye witness who was not crossexamined by respondent no. 1 & 2. It is not denied that respondent no. 1 was facing criminal trial for the accident in question and no complaint or representation is stated to have been filed by respondent no. 1 against Suit no.:568/11 Page 4/10 his alleged false implication in the case.
Thus, in view of the statement of parties and documents available on record, it is prima facie proved that minor petitioner suffered injuries due to rash and negligent driving of respondent no. 1.
Accordingly, issue no. 1 is decided in favour of the petitioner.
9. Issue no. 2: In view of the findings of issue no. 1, petitioner is entitled to compensation. It is stated that minor petitioner had suffered crush injuries and amputation of his finger of right foot, spent Rs. 2 lakhs on treatment, Rs. 10,000/ on conveyance and has claimed Rs. 20 lakhs as total compensation.
As per MLC of Sant Parmanand Hospital, petitioner had suffered lacerated wounds over base of toes with active bleeding and was referred to vascular surgery. As per PW2 petitioner was admitted in Ganga Ram Hospital on 24/10/2011 and was operated in emergency for right foot. He had suffered crush avulsion injury of right foot 2nd, 3rd, 4th & 5th toe and anterior 1/3rd of sole pad ; with devasucularization patient was operated in emergency and amputation of 2nd toe was done ; with advice of follow up was discharged on 28/10/2011. The treatment record has been filed as Ex. PW2/1. Petitioner continued his treatment on 31/10/2011, 08/11/2011 & 14/11/2011. On 19/11/2011 all sutures were removed but raw area on the base of 3rd toe was present. Further medicines were prescribed. No further treatment record has been filed. However, disability certificate of 8% due to traumatic amputation of 2nd toe of right foot which is shown to be non progressive but re assessment recommended after 05 years has been filed on record. The disability certificate is in respect of traumatic amputation of 2nd toe therefore, reassessment after 05 years will Suit no.:568/11 Page 5/10 not change the permanent nature of disability.
Petitioner is therefore, entitled to following compensation:
1. Medical expenses : Petitioner has filed bills for an amount of Rs. 69,555.80/. The same being connected with the treatment of the injuries received in the accident in question rounded to Rs. 69,600/ are allowed.
2. Special diet and conveyance : No specific evidence in regard to special diet and conveyance has been led. However, one bill for Rs. 3,150/ in respect of conveyance charges has been filed. In view of the growing age of minor petitioner of 06 years and presuming total treatment period of about 04 months, a lump sum amount of Rs. 12,000/ is allowed under this head.
3. Loss of studies : Petitioner was stated to be student of 1st class. His achievement report Ex. PW1/6 has been filed on record. Though petitioner is not shown to have suffered any loss in respect of promotion, etc. however, disability in question would have affected the attendance of the petitioner in his school. Accordingly, a lump sum amount of Rs. 10,000/ is allowed under this head.
4. Loss due to disability : Petitioner had suffered amputation of 2nd toe of right foot which has lead to permanent disability of 8% of right lower limb. Accordingly, Rs. 1 lakh is allowed under this head.
Suit no.:568/11 Page 6/10
5. Disfigurement and loss of marriage prospects : Petitioner had suffered amputation of 2nd toe of right foot. Photograph of amputated finger has been filed on record. Petitioner with progressive age would become more and more conscious of his disability. Accordingly, a lump sum amount of Rs. 50,000/ under each head is allowed. Total Rs. 1,00,000/.
6. Pain and suffering : Petitioner had suffered crush avulsion injury of right foot 2nd, 3rd, 4th & 5th toe and anterior 1/3rd of sole pad, was operated in emergency and amputation of 2nd toe was done which lead to 8% permanent disability. Accordingly, a lump sum amount of Rs. 1,00,000/ is allowed under this head.
Total Rs. 69,600/ + Rs. 12,000/ + Rs. 10,000/ + Rs. 1,00,000/ + Rs. 1,00,000/ + Rs. 1,00,000/ = Rs. 3,91,600/ (Rupees Three Lakh Ninety One Thousand and Six Hundred Only).
10. LIABILITY: Respondent no. 3 has stated that respondent no. 1 was holding only license for LMV private and not for LMV Commercial therefore, the same was not valid for the offending vehicle hence, they are not liable.
Respondent no. 1 has produced learner's driving license of LMV commercial valid on the date of accident in question and also permanent driving license for commercial vehicle of Rehman Khan who was accompanying respondent no. 1 in the offending vehicle at the time of accident in question.
Suit no.:568/11 Page 7/10
Respondent no. 3 has examined R3W1 their official who stated that the policy of the offending vehicle with its terms and conditions was R3W1/1. Notice to respondent no. 1 & 2 to produce driving license and original insurance policy with postal receipt were Ex. R3W1/2 to Ex. R3W1/5. Driving license of respondent no. 1 seized by IO was valid for LMV Private only and was issued from Transport Authority, Kanpur, Dehat. The verification report of the said driving license was part of DAR, their investigation also filed the verification report Ex. R3W1/10 and as per report, the said driving license was not valid for LMV Commercial i.e. the offending vehicle. Respondent no. 3 has also examined R3W2 IO of the case, who has stated that during the investigation he was only handed driving license Ex. R3W1/6 valid for LMV Private and therefore, there was no endorsement for commercial vehicle on the report Ex. R3W1/7.
R1W1 stated that he was holding license for commercial vehicle which was issued on 29/08/2011 valid till 28/02/2012 and was converted into permanent commercial license, copy of learner's license (commercial) was Ex. RW1/1 and the copy of permanent license commercial was Ex. R3W2/1 and the license of Rehman Khan (also examined as R3W2) is Ex. RW1/4. The said Rehman Khan was accompanying respondent no. 1 at the time of accident in question. As per DAR, respondent no. 1 was holding driving license for Motorcycle and LMV w.e.f. 13/07/2010 to 12/07/2030. The verification of the same was Ex. R3W1/7. But respondent no. 1 thereafter, produced the learner's license valid for LMV Commercial Ex. RW1/1 w.e.f. 28/08/2011 to 28/02/2012. The same later converted into permanent license (commercial) w.e.f. 28/02/2012 to 27/02/2015. There is no contrary evidence in respect of the learner's license Ex. RW1/1. Respondent no. 1 was accompanied by Rehman Khan who was holding valid driving license for LMV Commercial on the day of Suit no.:568/11 Page 8/10 accident Ex. RW1/4. The date of accident was 24/10/2011. The offending vehicle is admittedly LMV Commercial therefore, there is no dispute left in regard to driving license.
Accordingly, respondent no. 1 & 2 are jointly and severally liable. Respondent no. 3 to indemnify the claim.
11. Issue no. 3 (RELIEF): While granting relief to the petitioner, interest @ 9% p.a., from the date of petition till realization is also allowed on the award.
12. In view of the above, the following award is passed: AWARD : The petition is allowed. Respondent nos. 1 & 2 being the driver and owner are jointly and severally liable to pay the compensation.
However, respondent no. 3 being the insurance company shall pay the compensation of Rs. 3,91,600/ (Rupees Three Lakh Ninety One Thousand and Six Hundred Only) within one month along with the interest @ 9% p.a., from the date of petition till realization (excepting for the periods not specifically allowed) to the petitioners. In case of default interest @ 12% p.a. will be payable on the award amount from the date of petition.
Compensation amount be deposited with SBI, Tis Hazari within one month from today. The entire amount of the petitioner be converted into FDR till the age of majority.
13. A compliance report shall be filed by respondent no. 3 about the deposit of the award amount, as per directions alongwith a copy of the notice to the claimant and the Suit no.:568/11 Page 9/10 counsel for claimant, intimating about the deposit of the cheque by 10/12/2012.
14. Ahlmad is directed to prepare a separate miscellaneous file containing a copy of the petition, memo of parties, copy of award and last proceeding sheet and put the same alongwith the compliance report aforementioned on 10/12/2012. Copy of the award portion be supplied to the parties free of cost. File be consigned to Record Room.
Announced in the open court (DINESH BHATT)
on 08/10/2012 PO, MACT/Delhi
08/10/2012
Suit no.:568/11 Page 10/10