Delhi District Court
Sh. Sanjeev Kumar vs Sh. Tarsem Singh on 5 January, 2019
MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 4622/16 (Old MACP No. 110/12)
Sh. Sanjeev Kumar,
S/o Sh. Guru Prasad,
R/o Dalal Kiryana Store,
Ward No. 9, Gali No. 11A,
Dharam Vihar,
Bahadurgarh,
Haryana. ..........Petitioner
VERSUS
1. Sh. Tarsem Singh,
S/o Sh. Joginder Singh,
R/o. Laxmi Pura,
District Bhind,
Madhya Pradesh (Driver)
2. M/s. Randhawa Golden Roadlines,
C36, New Truck Parking,
Timarpur,
Delhi (Registered Owner)
3. National Insurance Co. Ltd.
4Th Floor,
Jeevan Bharti Building,
Connaught Place,
New Delhi (Insurer)
............Respondents
Date of Institution : 16.03.2012 Date of Arguments : 20.12.2018 Date of Award : 05.01.2019 Sanjeev Kumar Vs. Tarsem & Ors. Page 1 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 APPEARANCES: Sh. A.K. Singla, Adv for petitioner.
Respondents no.1 & 2 are exparte.
Sh. V.K. Gupta, Adv for respondent no. 3.
Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner has sought compensation to the tune of Rs. 12,00,000/ with interest @ 15% per annum from the date of filing of petition till the date of realization, for the injuries sustained by him in Motor Vehicular Accident which occurred on 25.07.2007 at about 2:45 pm at G.T.K. Road, near Sanjay Gandhi Transport Nagar, Red Light, Delhi, involving Truck bearing registration no. HR38M7747 (alleged offending vehicle) being driven by respondent no. 1 in rash and negligent manner.
2. It is averred in the claim petition that on 25.07.2007, the petitioner was sitting as pillion rider on scooter bearing registration no. DL4SAQ0562, which was being driven by Puneet. They both were going to Swaroop Nagar from Nangloi via Karnal Bypass. At about 2:45 pm, when they were enquiring about the area of Swaroop Nagar by stopping the scooter at the extreme left side of G.T.K. Road, near Sanjay Gandhi Transport Nagar, in the meantime, one Truck bearing registration no. HR38M7747 which was being driven by respondent no. 1 at very high speed and in rash and negligent manner, came from back side and hit against the aforesaid scooter. As a result thereof, he fell down on the road Sanjeev Kumar Vs. Tarsem & Ors. Page 2 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 and sustained grievous injuries. He was immediately removed to BJRM Hospital, Jahangir Puri, where he was medically examined but due to his serious condition, he was immediately shifted to Maharaja Agarsen Hospital, Punjabi Bagh. During the period of his hospitalization in the said hospital, his right elbow was operated by inserting TBW(Tension Band Wiring) and he was discharged on 27.07.07. He was again admitted in the said hospital on 06.10.10 for implant removal. He had sustained grievous injuries i.e. compound fracture of elbow right hand, crush injury of right foot, besides other injuries. It is further averred that the petitioner has sustained permanent disability of right foot. FIR No. 604/07 u/s. 279/338 IPC was registered at PS. S.P. Badli with regard to the said accident. It is further averred that the petitioner was aged 31 years; he was working as Sales Manager with private firm and was getting monthly salary of Rs. 8,000/ at the time of accident. The said vehicle i.e. Truck bearing registration no. HR38M7747 was found to be owned by respondent no. 2 and it was found to be insured with respondent no. 3 i.e. National Insurance Company Limited during the period in question.
3. The respondents no. 1 & 2 i.e. driver and registered owner were served by way of publication in newspaper 'Veer Arjun' for 05.06.13 but they failed to appear in order to contest the present claim petition and consequently, both of them were proceeded against exparte on 05.06.13.
Sanjeev Kumar Vs. Tarsem & Ors. Page 3 of 26MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019
4. In its WS/reply, the respondent no. 3/insurance company has raised statutory defence as provided in Section 149(2) M.V. Act by claiming that DL No. T4609 in favour of respondent no. 1 was found to be fake as per report of its Investigator after verifying the same from the office of DTO, Guahati. It has admitted that Truck no. HR38M7747 was insured with it, in the name of respondent no. 2 vide policy no. 360902/31/07/6300000810 for the period from 09.05.07 till 08.05.08. On merits, the averments made in the claim petition have been simply denied for want of knowledge with prayer for its dismissal.
5. From pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 24.07.2013:
1. Whether the petitioner received injuries in the road side accident occurred on 25.07.2007 at about 2:45 pm at GTK Road, near Sanjay Gandhi Transport Nagar, Red Light, Delhi due to rash and negligent driving of R1/driver of offending vehicle No. HR38M7747?OPP.
2. Whether the petitioner is entitled for compensation as prayed for, if so to what extent and from which of the respondents?OPP.
3. Relief.
6. In support of his claim, the petitioner has examined three witnesses i.e. himself as PW1, PW2 Sh. K.D. Sharma, Record Clerk of Maharaja Agarsen Hospital and PW3 Dr. Naresh Chandra, Specialist Sanjeev Kumar Vs. Tarsem & Ors. Page 4 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 Orthopedic, G.G.S. Govt. Hospital, Raghubir Nagar, Delhi. He closed his evidence on 18.08.17. On the other hand, the respondent no. 3 has examined Sh. Naresh Kumar Bansal, Administrative Officer of National Insurance Company Limited as R3W1 and closed its evidence through counsel on 01.03.18.
7. I have already heard the arguments addressed by ld counsels for the parties. I have also gone through the record. Both the sides were directed to submit their respective submissions in Form VI B, vide order dated 20.12.18 but they have not submitted the same on record till date. My findings on the issues are as under: ISSUE NO. 1.
8. For the purpose of this issue, the testimony of PW1 Sh. Sanjeev Kumar (injured himself) is relevant. In his evidence by way of affidavit (Ex. PW1/A), he has deposed on the lines of averments made in the claim petition. He deposed that on 25.07.2007, he was sitting as pillion rider on scooter bearing registration no. DL4SAQ0562, which was being driven by Puneet. They both were going to Swaroop Nagar from Nangloi via Karnal Bypass. At about 2:45 pm, when they were enquiring about the area of Swaroop Nagar by stopping the scooter at the extreme left side of G.T.K. Road, near Sanjay Gandhi Transport Nagar, in the meantime, one Truck bearing registration no. HR38M7747 which was being driven by Sanjeev Kumar Vs. Tarsem & Ors. Page 5 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 respondent no. 1 at very high speed and in rash and negligent manner, came from back side and hit against the aforesaid scooter. As a result thereof, he fell down on the road and sustained grievous injuries. He was immediately removed to BJRM Hospital, Jahangir Puri, where he was medically examined but due to his serious condition, he was immediately shifted to Maharaja Agarsen Hospital, Punjabi Bagh. FIR No. 604/07, u/s. 279/338 IPC was registered at PS. S.P. Badli with regard to said accident.
He has relied upon the following documents: S.No. Description of documents Remarks
1. Original Discharge Summary of Ex. PW1/1(colly) Maharaja Agarsen Hospital
2. His Original OPD Card of Ex. PW1/2 Maharaja Agarsen Hospital
3. His Original General OPD Ex. PW1/3 to Ex.
Prescriptions of Maharaja Agarsen PW1/5 Hospital
4. His Original Discharge Slip of Ex. PW1/6 Maharaja Agarsen Hospital
5. His Original General OPD Ex. PW1/7 Prescription of Maharaja Agarsen Hospital
6. Original medical bills Ex. PW1/8(colly)
7. Copy of High School Examination Ex. PW1/9
8. Copy of Intermediate Examination Ex. PW1/10
9. Copy of his B.A Degree Ex. PW1/11
10. Copy of his voter I card Ex. PW1/12
11. Certified copies of criminal case Ex. PW1/13(colly) Sanjeev Kumar Vs. Tarsem & Ors. Page 6 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 record
12. Copy of Ration Card Mark A
9. During his cross examination on behalf of respondent no. 3, he deposed that his scooter was stationary at the time of accident. He denied the suggestion that scooter was being driven at that time or that accident took place with some other vehicle due to sole negligence of Puneet who was driving the said scooter or that no accident took place with truck no. HR38M7747. Respondents no. 1 & 2 did not crossexamine this witness, they both being already exparte.
10. It is evident from the testimony of PW1 that the respondents, more particularly insurance company, could not impeach his testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of crossexamination. Even otherwise, PW1 himself is the injured having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against respondent no.1. Moreover, FIR No. 604/07(which is part of Ex. PW1/13 colly) is also shown to have been registered on the statement of this witness. The contents of said FIR would show that the complainant i.e. injured himself has disclosed therein the same sequence of facts leading to the accident, as deposed by him during the course of inquiry. Moreover, the respondents have not led any evidence in rebuttal during the course of inquiry on the aspect of accident in question being caused due to rash and Sanjeev Kumar Vs. Tarsem & Ors. Page 7 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 negligent driving of Truck No. HR38M7747 by respondent no. 1. Thus, there is no reason to disbelieve the unchallenged and uncontroverted testimony of this witness made on oath.
11. It is pertinent to note that the respondent no.1/driver of aforesaid Truck , was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of Truck bearing no. HR38M7747 by him.
12. Moreover, it is an undisputed fact that FIR no. 604/07 (supra) was registered at PS. S.P. Badli with regard to accident in question. Copy of said FIR as also the copy of charge sheet arising out of said FIR(which are part of Ex. PW1/13 colly), would show that FIR was registered on 25.07.07 i.e. on the date of accident itself. Thus, FIR is shown to have been registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of Truck bearing registration no. HR38M7747 at the instance of petitioner herein.
13. Not only this, the respondent no. 1 namely Tarsem Singh S/o Sardar Joginder Singh (accused in State case) has been charge sheeted for offences punishable U/s 279/337/338 IPC by the investigating agency Sanjeev Kumar Vs. Tarsem & Ors. Page 8 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending Truck bearing registration no. HR38M7747 by him. Same would also point out towards rash and negligent driving of aforesaid vehicle by respondent no. 1.
14. Apart from above, copy of MLC (which is part of Ex. PW1/13 colly) of injured prepared at BJRM Hospital, shows that he had been removed to said hospital on 25.07.2007 at 3:00 PM with alleged history of RTA. On his local examination, he was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.
15. Furthermore, copy of mechanical inspection report dated 27.07.2007 (which is part of Ex. PW1/13 colly) of Truck no. HR38M7747, would show that there were fresh damages i.e. its left rear outer front wheel tyre was found scratched. Likewise, copy of mechanical inspection report dated 27.07.2007 (which is also part of Ex. PW1/13 colly) of Scooter no. DL4SAQ0562 of victim, would show that there were fresh damages i.e. its rear stepny bracket and stepny wheel rim was found damaged; its tail light was damaged; its rear body and body frame was damaged; its right side body was scratched and dented; its right side engine cover was scratched, Sanjeev Kumar Vs. Tarsem & Ors. Page 9 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 damaged and dislocated; its engine frame system was damaged; its headlight ring and headlight head was damaged and headlight glass was broken and its hand brake lever was damaged. Said reports, which have gone unchallenged and unrebutted from the side of respondents, also corroborate the ocular testimony of PW1 Sh. Sanjeev Kumar to the aforesaid extent. Moreover, the offending Truck is shown to have been seized from the place of accident. This fact gets strengthened from the copy of its seizure memo dated 25.07.07 (which is also part of Ex. PW1/13 colly).
16. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of pre ponderence of probabilities that he had sustained grievous injuries in road accident which took place on 25.07.2007 at about 2:45 pm at G.T.K. Road, near Sanjay Gandhi Transport Nagar, Red Light, Delhi, due to rash and negligent driving of Truck bearing no. HR38M7747 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 2.
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 niggardly.
Sanjeev Kumar Vs. Tarsem & Ors. Page 10 of 26MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 MEDICAL EXPENSES
18. PW1 Sh. Sanjeev Kumar i.e. injured himself, has deposed in his evidence by way of affidavit(Ex. PW1/A) that after the accident, he was taken to BJRM Hospital, where he was medically examined, Thereafter, he was removed to Maharaja Agarsen Hospital, Punjabi Bagh, where he remained admitted from 25.07.07 till 27.07.07. He deposed to have sustained communited compound fracture of elbow right hand and crush injury of right foot. He further deposed that his right elbow was operated by inserting TBW (Tension Band Wiring). He further deposed that he again remained admitted in the said hospital on 06.10.10 for removal of his implant. He deposed to have spent Rs. 80,000/ on his medical treatment. He has not been crossexamined at all on the aforesaid aspect on behalf of respondent no. 3. Respondents no. 1 & 2 did not crossexamine this witness, they both being already exparte.
19. PW2 is the Record Clerk from Maharaja Agarsen Hospital, Punjabi Bagh. He produced treatment record in respect of claimant Sanjeev Kumar and deposed that claimant remained admitted in their hospital from 25.07.07 till 27.07.07 and medical bill of Rs. 30,060/ was paid by him to the hospital. He further deposed that said patient again remained admitted in the hospital on 06.10.10 and paid medical bill of Rs. 13,516/. He also deposed that said patient had received treatment from their hospital on OPD basis from time to time and reiterated that medical treatment record Sanjeev Kumar Vs. Tarsem & Ors. Page 11 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 and medical bills(Ex. PW1/1 colly to Ex. PW1/8 colly) were issued by their hospital. Nothing material could be elicited during his crossexamination on behalf of insurance company, whereas respondents no.1 & 2 did not cross examine him, they both being already exparte.
20. It is relevant to note that the injured has relied upon medical bills to the tune of Rs. 53,540/ only, which are exhibited as Ex. PW1/8 (colly). It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in rebuttal during the course of inquiry. Accordingly, a sum of Rs. 53,540/ is awarded to the petitioner under this head.
LOSS OF INCOME
21. Injured namely Sh. Sanjeev Kumar (PW1) has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was aged 31 years and he was working as Sales Manager in Casio Paints, Nangloi and was earning Rs. 8,000/ per month at the time of accident. He further deposed that he could not work for 1 year and was on leave without pay and thereafter, he lost his job. He also deposed that he remained under treatment for about 3 years due to the injuries sustained by him in the accident in question. He also deposed that he has suffered permanent disability. During his crossexamination on behalf of respondent no. 3, he Sanjeev Kumar Vs. Tarsem & Ors. Page 12 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 deposed that he did not have any document to show that he was employed or that he was earning Rs. 8,000/ per month at the time of accident. He denied the suggestion that he was not earning anything at the time of accident. Respondents no. 1 & 2 did not crossexamine this witness, they both being already exparte.
22. The discharge summary (which is part of Ex. PW1/1 colly) of Maharaja Agarsen Hospital, in respect of petitioner/injured, would reveal that he remained admitted in the said hospital from 25.07.07 till 27.07.07. Said treatment record would also show that the injured had sustained communited compound fracture right Olecranon with crush injury of right foot. Same would further show that he had undergone surgery on 25.07.07, during which TBW right Olecranon with ortheotomy right elbow with debridement and primary repair of wound was performed. Not only this, said treatment record would further show that the claimant had also received medical treatment on OPD basis from said hospital from time to time. Not only this, his discharge summary (Ex. PW1/6) dated 06.10.10 of same hospital would also show that implant was removed on said date and he was advised to visit the ortho department of hospital on OPD basis for his review and followup treatment. His OPD slip (Ex. PW1/7) would show that he had visited the hospital on 09.10.10 as well. Said treatment record has gone unchallanged and uncontroverted from the side of respondents.
Sanjeev Kumar Vs. Tarsem & Ors. Page 13 of 26MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019
23. Apart from the aforesaid documents produced by PW1 i.e. the petitioner, he has failed to file any other medical treatment record in order to show the exact period upto which he had received the medical treatment. Nevertheless, it can not be overlooked that the petitioner had suffered communited compound fracture right Olecranon with crush injury of right foot due to the impact of the accident. His discharge summary (which is part of Ex. PW1/1 colly) would show that he had undergone surgery on 25.07.07, during which TBW right Olecranon with ortheotomy right elbow with debridement and primary repair of wound was performed. Not only this, he is also shown to have suffered permanent disability to the extent of 26% in relation to right upper and lower limb, as per disability certificate (Ex. PW3/A) issued by Disability Board of G.G.S. Govt. Hospital and in view of ocular testimony of PW3 Dr. Naresh Chandra of said hospital, Considering the nature of injuries sustained by the petitioner, his permanent disability and in view of the treatment record brought on record, it is presumed that he would not have been able to work at all atleast for a period of 10 months or so.
24. During the course of arguments, counsel for injured fairly conceded that for want of any cogent evidence with regard to exact avocation or monthly income of injured/petitioner, his income has to be assessed as per Minimum Wages Act applicable during the relevant period. It may be noted here that the petitioner has filed copy of High School Certificate (Ex. PW1/9) and that of Intermediate and graduate degree Sanjeev Kumar Vs. Tarsem & Ors. Page 14 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 course (Ex. PW1/10 & Ex. PW1/11 respectively), which clearly shows that he had completed his graduation prior to the date of accident in question. In these circumstances, the minimum wages of graduate under Minimum Wages Act during the period in question, has to be taken into consideration. The minimum wages of graduate were Rs. 4,230/ per month as on the date of accident which is 25.07.2007. The minimum wages of graduate were revised to Rs. 4,276/pm w.e.f.01.08.2007. The accident in question had occurred on 25.07.2007 i.e. just 5 days before the date from which minimum wages were revised by the government. In these facts and circumstances, I am inclined to take the minimum wages at the rate of Rs.4,276/ per month in order to calculate loss of income under this head. (Reliance placed on unreported decision in the matter titled as "THE ORIENTAL INSURANCE CO.LTD. Vs. CHHOTEY LAL & ORS. ", in MAC. APP. 1074/2016 decided on 15.05.2017 by Hon'ble Delhi High Court.) Thus, a sum of Rs. 42,760/ (Rs. 4,276/ x 10) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
25. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor Sanjeev Kumar Vs. Tarsem & Ors. Page 15 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
26. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained communited compound fracture of elbow right hand and crush injury of right foot and he remained admitted in Maharaja Agarsen Hospital on two occasions. He also deposed that his right elbow was operated by inserting TBW. As already noted above, the petitioner had sustained communited compound fracture right Olecranon with crush injury of right foot due to the impact of the accident. His discharge summary (which is part of Ex. PW1/1 colly) would show that he had undergone surgery on 25.07.07, during which TBW right Olecranon with ortheotomy right elbow with debridement and primary repair of wound was performed . He has also sustained permanent disability to the extent of 26% in relation to his right upper and lower limb. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs. 1,50,000/ towards pain and sufferings to the petitioner. (Reliance placed on "IFFCO Tokio General Insurance Sanjeev Kumar Vs. Tarsem & Ors. Page 16 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.2018 by Hon'ble Delhi High Court).
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
27. As already mentioned above, there is sufficient evidence on record to establish that he had sustained grievous injuries. His treatment record as available on file, would show that he remained admitted in Maharaja Agarsen Hospital from 25.07.07 to 27.07.07 and again on 06.10.10 concerning removal of his implant. His treatment record would further show that he had suffered communited compound fracture right Olecranon with crush injury of right foot due to the impact of the accident. He has also sustained permanent disability to the extent of 26% in relation to his right upper and lower limb. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 1,50,000/ towards loss of general amenities and enjoyment of life to the petitioner. (Reliance placed on "IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.2018 by Hon'ble Delhi High Court).
Sanjeev Kumar Vs. Tarsem & Ors. Page 17 of 26MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
28. The petitioner/injured as PW1 has deposed in his evidence by way of affidavit (Ex. PW1/A) that he had spent Rs. 25,000/to Rs. 30,000/ on special diet and Rs. 25,000/ to Rs. 30,000/ on conveyance. He further deposed that he had employed one attendant on monthly salary of Rs. 5,000/ for a period of 4 months. During his crossexamination on behalf of respondent no. 3, he deposed that he had engaged one Nepali but could not disclose his address. He also could not produce any receipt to show that he had paid any amount to attendant or had actually engaged any attendant.
29. In view of above discussion, it is quite apparent that the injured has failed to lead any cogent evidence on record to show that he had actually incurred the aforesaid amount on the aforesaid heads. Nevertheless, it cannot be overlooked that he had sustained communited compound fracture right Olecranon with crush injury of right foot due to the impact of the accident. His discharge summary (which is part of Ex. PW1/1 colly) would show that he had undergone surgery on 25.07.07, during which TBW right Olecranon with ortheotomy right elbow with debridement and primary repair of wound was performed. He has also sustained permanent disability to the extent of 26% in relation to his right upper and lower limb. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance Sanjeev Kumar Vs. Tarsem & Ors. Page 18 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 5,000/ for conveyance charges and a sum of Rs. 10,000/ each for special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
30. As already stated above, the petitioner is shown to have sustained 26% permanent disability in relation to his right upper and lower limb. Same is quite evident from Disability Certificate of Medical Board of G.G.S. Govt. Hospital, Raghubir Nagar, Delhi. The petitioner has also testified in this regard while examining himself as PW1 during inquiry. He has not been crossexamined by the respondents on this aspect.
31. As per the testimony of PW3 Dr. Naresh Chandra, who was one of the members of Medical Board constituted at G.G.S. Govt. Hospital, the petitioner was found to have suffered 26% permanent disability in relation to his right upper and lower limb. He deposed that the aforesaid Medical Board assessed the disability of the patient to be permanent in nature which was not likely to improve. He exhibited the Disability Sanjeev Kumar Vs. Tarsem & Ors. Page 19 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 Certificate as Ex. PW3/A. During his crossexamination, nothing material could be elicited on behalf of insurance company. Respondents no. 1 & 2 did not crossexamine this witness, they both being already exparte.
32. The disability certificate(Ex. PW3/A) of injured would reveal that he had suffered 26% permanent disability in relation to his right upper and lower limb. It is mentioned therein that his case was that of post traumatic stiffness of right ankle and elbow joint. It is relevant to note that the petitioner was doing private job of Sales Manager at the time of accident, which necessarily involves field visits and travelling on day to day basis. Thus, it would not be possible for him to continue with the said avocation or to engage himself in any kind of avocation which requires movement of his right upper and lower limbs. It is also relevant to note that in the absence of any evidence to the contrary being brought on record during the course of inquiry, it is presumed that the claimant is right handed person. He is shown to have sustained permanent physical impairment in his right upper limb apart from right lower limb. Keeping in view the overall facts and circumstances of the case including the nature of injuries sustained by petitioner and his nature of work at the time of accident, his functional disability is taken as 26% with regard to whole body. (Reliance placed on "IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.2018, "Oriental Insurance Company Limited Vs. Manjeet Singh & Ors.", MAC APP No. 359/09, decided on 10.04.17 and "Reliance General Insurance Company Sanjeev Kumar Vs. Tarsem & Ors. Page 20 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 Limited Vs. Malti Devi & Ors.,", MAC APP No. 572/12, decided on 20.05.15, by Hon'ble Delhi High Court).
33. In copy of High School Certificate (Ex. PW1/9) of petitioner, his date of birth is mentioned as 21.12.1975. The date of accident is 25.07.2007. In view of said document, his age was about 3132 years as on the date of accident. Hence, the appropriate multiplier would be 16 in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17. The notional monthly income of petitioner has been taken as Rs. 4,276/ per month as discussed above. Thus, the loss of monthly future income would be Rs. 1,112/ (rounded off)(Rs. 4,276/ x 26/100 ). The total loss of future income would be Rs.2,98,906/ (rounded off) (Rs. 1,112/ x 140/100 x 12 x
16). (Reliance placed on Jagdish Vs. Mohan & Ors. (2018) 4 SCC 571 and unreported decision of Hon'ble Delhi High Court in " The New India Assurance Co. Ltd. Vs. Deepak Arora & Ors.", MAC APP No. 320/2013 decided on 28.09.18). Thus, a sum of Rs. 2,98,906/ is awarded in favour of petitioner under this head.
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 53,540/
2. Loss of income Rs. 42,760/
3. Pain and suffering Rs. 1,50,000/ Sanjeev Kumar Vs. Tarsem & Ors. Page 21 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019
4. Loss of general amenities and Rs. 1,50,000/ enjoyment of life
5. Conveyance, special diet and Rs. 25,000/ attendant charges
6. Loss of future income Rs. 2,98,906/ Total Rs. 7,20,206/ Rounded off to Rs. 7,21,000/
34. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company sought to avoid the liability of insurance company to pay the compensation amount on the ground that DL in favour of respondent no. 1, was found to be fake. For this purpose, he heavily relied upon the testimony of R3W1 namely Sh. Naresh Kumar Bansal, Administrative Officer of National Insurance Co. Ltd and the documents relied by him.
35. In order to appreciate the submissions made on behalf of insurance company, it would be appropriate to refer to the testimony of R3W1. He deposed that despite service of notice u/o 12 Rule 8 CPC upon respondents no. 1 & 2, they failed to produce any valid and effective DL in favour of R1 on record. He further deposed that on verification being made from the office of DTO, Gauhati, through its Investigator, DL produced by respondent no. 1 was found to be fake. He relied upon office copy of Sanjeev Kumar Vs. Tarsem & Ors. Page 22 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 aforesaid notice, its original postal receipts, certified copy of insurance policy of truck no. HR38M7747 and DL verification report as Ex. R3W1/1 to Ex. R3W1/5 respectively and copy of DL of R1 as Mark X. Respondents no. 1 & 2 did not crossexamine this witness, they both being already exparte.
36. As is quite evident from the aforesaid discussion and from the perusal of DL verification report issued by DTO, Guahati, DL No. T 4609 in the name of Tarsem Singh S/o Sh. Joginder Singh, was not issued by their office. In other words, the copy of DL(Mark X) is shown to be fake one. Apart from the fact that respondents no. 1 & 2 could not impeach the testimony of R3W1 or the record produced by said witness during the course of inquiry, they also failed to produce any other valid DL in favour of R1 on record.
37. In view of the aforesaid discussion, I find substance in the plea raised on behalf of insurance company that for want of valid and effective DL in favour of respondent no. 1 being proved on record, it would be termed as breach in the terms and conditions of insurance policy on the part of insured i.e. respondent no. 2. Thus, insurance company is entitled to recovery rights against the respondent no. 2. (Reliance placed on decision dated 26.09.2017 in FAO no.7555/2015 in the matter titled as "MS Middle High School and another Vs. Usha and others" by Hon'ble High Court of Punjab and Haryana and as upheld by Hon'ble Apex Court in SLP no.31406/2017 titled as "MS Middle High School Vs. HDFC ERGO Sanjeev Kumar Vs. Tarsem & Ors. Page 23 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 General Insurance Company Ltd. & others" decided on 22.11.2017). Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
38. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 7,21,000/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 16.03.12 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016). However, it would be open to the insurance company to recover the award amount from the registered owner/insured (respondent no. 2) after payment of compensation amount, in accordance with law. Issue no. 3 is decided accordingly.
APPORTIONMENT
39. Statement of petitioner in terms of Clause 27 MCTAP was recorded on 15.11.2018. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the awarded amount, a sum of Rs. 1,50,000/(Rupees One Lakh and Fifty Thousand Only) shall be immediately released to the petitioner through his saving bank account no. 31893454195 with State Bank of India, Baberu, District Banda, UP, having IFSC Code SBIN0011206 and Sanjeev Kumar Vs. Tarsem & Ors. Page 24 of 26 MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019 remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 15,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
40. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimant/petitioner. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimant/petitioner.
(ii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
(iii) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(iv) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victim.
(v) Half yearly statement of account be filed by the Bank before the Tribunal.
41. During the course of hearing final arguments, claimant was asked as to whether he was entitled to exemption from deduction of TDS or not. He stated on oath that he was entitled to exemption from deduction of TDS and also furnished Form No. 15G on record.
Sanjeev Kumar Vs. Tarsem & Ors. Page 25 of 26MACP No. 4622/16; FIR No. 604/07; PS.S.P. Badli DOD:05.01.2019
42. Respondent no. 3, being insurer of offending vehicle, is directed to deposit the compensation amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the amount of Rs. 1,50,000/ in the aforesaid saving bank account mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimant. Copy of this award be given dasti alongwith Form no. 15G furnished by claimant (after retaining its copy on record) to counsel for insurance company. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form IVB and Form V in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Digitally signed by VIDYA VIDYA PRAKASH
PRAKASH Date:
Announced in the open 2019.01.07
13:40:39 +0530
Court on 05.01.2019
(VIDYA PRAKASH)
Judge MACT2 (North)
Rohini Courts, Delhi
Sanjeev Kumar Vs. Tarsem & Ors. Page 26 of 26