Delhi District Court
Yogesh Kumar vs Vinod Kumar on 21 January, 2016
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.D156/15
Date of Institution: 06.05.2015
IN THE MATTER OF:
Yogesh Kumar
S/o Late Shri Siya Ram
R/o RZG522, Raj NagarII
BlockG, Palam Colony
New Delhi. ...Petitioner
Versus
1. Vinod Kumar
S/o Shri Shri Ram
R/o B242, Jharera
Delhi Cantt., Delhi.
2. TATA AIG Insurance Co. Ltd.
Peninsula Business Park
TowerA, 15th Floor
Ganpatrao Kadam Marg
Lower Parel
Mumbai400013. ...Respondents
Final Arguments heard : 22.12.2015
Award reserved for : 21.01.2016
Date of Award : 21.01.2016
Suit No.D156/15
Yogesh Kumar Vs Vinod Kumar & Ors. Page 1 of 33
AWARD
1. Vide this judgmentcumaward, I proceed to decide the DAR which is treated as petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioner that on 15.03.2015 he was going driving his motorcycle No.DL4SCE6856 at a very normal speed and he was proceeding from his residence at Raj Nagar, Palam Colony towards Maurya Hotel near Nehru Stadium, New Delhi where his employer company namely M/s Mix N. Serve had deputed him to attend his duty of Bar Tender via Main Road N.H. 8. At about 4.00 p.m. when he reached on Main Road NH8, near Central School Jharera Chowk, New Delhi then a car bearing registration No.HR26BC9817 being driven by its driver Shri Vinod Kumar Chouhan respondent No.1 at a very high speed, rashly, negligently without taking necessary precautions, without observing proper look out, violating the traffic rules and without blowing any horn came from the wrong side and violently hit his motorcycle with a great force. As a result of the forceful hit the petitioner along with his motor cycle fell down on the road and he sustained serious/ grievous injuries all over his body. His motorcycle was also badly damaged. Crowd gathered there. Someone from the crowd informed the police. PCR van came on the spot of accident and removed him to Safdarjung Hospital and got him admitted there. From there he was shifted to Jai Prakash Narayan Apex Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 2 of 33 Trauma Centre (AIIMS) and he was again shifted from there to Mata Chanan Devi Hospital and got admitted there. The offending car No.HR26BC9817 was seized by the police from the spot of the accident and the driver Shri Vinod Kumar Chouhan respondent No.1 was also arrested by the police on the day of the accident. Police also recorded the statement of the petitioner at Mata Chanan Devi Hospital and lodged FIR against the driver Shri Vinod Kumar Chouhan respondent No.1. It is contended that the accident took place solely and entirely due to the rash and negligent driving of the driver Shri Vinod Kumar Chouhan respondent No.1 of the offending vehicle bearing No.HR26BC9817. It is stated that in respect of the accident FIR No.126/15 under sections 279/338 IPC was registered at PS Delhi Cantt.
3. It is submitted that due to the accident the petitioner sustained grievous injuries, fracture of shaft of humerus (left) and Orif was done, fracture of Upper end of Tibia (Proximal Tibia), fracture of olecranon left and TBW was done, he was profusely bleeding and he had abrasions and blunt Injuries all over the body. It is averred that the petitioner was discharged from the hospital on 18.03.2015 and during the period of his admission at Mata Chanan Devi Hospital his left upper hand (Humerus Bone) was operated upon and plates and nails were inserted in it. His left elbow (Olecranon) was also operated upon and tension bend wiring (TBW) was put in it. Thereafter, he visited in the OPD of Dr. Ashoo Aggarwal of Manas Ortho Clinic at Palam Colony, New Delhi about 8 to 10 times for regular checkup and he was still under active Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 3 of 33 treatment. It is contended that the petitioner received serious/ grievous injuries in the accident and he had undergone a lot of pain and suffering on account of the injuries received by him in the accident. It is averred that the petitioner had suffered permanent disability due to the injuries received by him in the accident and he could not lift weight with his left hand and he could not drive his motorcycle. It is stated that the petitioner had spent more than Rs. 1,50,000/ on his medical treatment, Rs.10,000/ on conveyance, Rs.20,000/ on special diet and Rs.18,000/ on attendant charges and his family members also attended him during the period of his treatment. It is averred that in future one more operation for removal of implant and TBW Screws from his left hand would be done and he would again have to incur more than Rs.35,000/ on the operation. He would again have to take bed rest for at least one month and he would suffer loss of income of one month and he would also have to incur some amount on conveyance and special diet etc.
4. It is submitted that at the time of the accident the petitioner was doing BA Arts course and he was studying in Final Year. Besides studying he was also doing part time job of Bar Tender with M/s Mix N. Serve Company at K2, 813/1, Ground Floor, Akshat Apartment, Mahipal Pur, New Delhi110037 and he was earning Rs.10,000/ to Rs.12,000/ p.m. Due to the injuries sustained by him in the accident, the petitioner could not resume his work from the date of the accident till date. It is contended that he was unable to do any type of work due to his accidental injuries and permanent disability. At the time of the Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 4 of 33 accident he was holding a valid and effective DL to drive motorcycle. He was the registered owner of the motorcycle No.DL4SCE6856 which was involved in the accident. It is averred that the motorcycle of the petitioner was badly damaged in the accident. The motorcycle was insured with The Oriental Insurance Company Limited. It is stated that the petitioner had got his motorcycle repaired from M/s Lamba Enterprises Pvt. Ltd. (1516) D/E 35, Rama Road Industrial Area, Najafgarh Road, Delhi110015 and he had spent Rs.52,289/ on its repairs. He had also spent Rs.850/ on transportation of his motorcycle from PS Delhi Cantt. to M/s Lamba Enterprises Pvt. Ltd. (1516) D/E 35, Rama Road Industrial Area, Najafgarh Road, Delhi110015 for conducting repairs.
5. Reply was filed on behalf of the respondent No.1 stating therein that the driver of the alleged vehicle bearing No.HR26BC9817 had not committed any rash and negligent driving against the injured and he never violated any traffic rules and regulations and the application had been filed by the police on the basis of false facts. It is averred that the injured himself was driving his motorcycle bearing No.DL4SCE6856 in rash and negligent manner without following traffic rules and regulations due to which the accident had happened. It is submitted that the driver of the offending vehicle was driving his vehicle very carefully and by following the traffic rules and regulations. It is submitted that at the time of accident the respondent No.1 was holding a valid DL and other valid documents of the vehicle. The vehicle of the respondent No.1 was Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 5 of 33 duly insured with the insurance company i.e. Tata AIG Insurance Co. Ltd. It is averred that according to the MLC, the injury sustained by the petitioner was simple in nature and the petitioner sustained injuries due to his own negligence. It is averred that the FIR has not been registered on the basis of any independent witness or a person who had seen the accident or was present at the site and the accident took place due to the rash and negligent driving of the vehicle of the injured. It is contended that the investigation was not properly done by the IO and the IO did not even make any efforts to inquire from any eye witness nor recorded the statement of the respondent No.1. It is stated that the respondent No.1 was having valid RC, Insurance policy and other necessary documents, hence the respondent No.1 is not liable to pay any compensation.
6. Written legal offer was filed on behalf of the respondent No.2 stating therein that the liability of the respondent No.2 was subject to the driver and owner of the offending vehicle and the victim holding a valid and effective license at the time of the accident. It is averred that the case is bad for misjoinder and non joinder of necessary and proper parties as the owner/insurer of the motorcycle No.DL4SCE6856 which the claimant was riding had not been impleaded. It is stated that the offending vehicle Maruti Alto LXI No.HR26BC9817 was insured in the name of Vinod Kumar Chauhan vide policy No.015304131100 from 19.06.2014 to 18.06.2015 with the respondent No.2. It is contended that the accident had taken place due to the Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 6 of 33 rashness and negligence of the petitioner himself. It is averred that there is an unexplained delay of two days in filing the FIR which was fatal to the case. An offer of Rs.1,96,737.60 was made.
7. From the pleadings of the parties, the following issues were framed vide order dated 01.07.2015:
1. Whether the petitioner sustained injuries in the accident which occurred on 15.03.2015 at about 16:00 hrs at Main Road, NH8, Near Kendriya Vidyalaya Jharera Chowk, Delhi Cantt., New Delhi, caused by rash and negligent driving of vehicle No.HR26BC9817 driven and owned by respondent no.1 and insured with respondent no.2? OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.
8. The petitioner Shri Yogesh Kumar himself appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A. Original discharge slips, OPD cards and Xray report placed on record by the IO with DAR are collectively Ex.PW1/1, two original OPD cards are collectively Ex.PW1/2, original Medical bills and receipts are collectively Ex.PW1/3, three original medical bills are collectively Ex.PW1/4. He stated that he could not retain all his treatment papers and medical bills. The estimate of removal of Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 7 of 33 implant given by treating doctor Dr. Ashoo Aggarwal is Ex.PW1/5, copy of pay slip issued by the employer is Ex.PW1/6, copies of matriculation and intermediate certificate are collectively Ex.PW1/7, copy of registration certificate of the motorcycle is Ex.PW1/9, copy of mechanical inspection report of the motorcycle is Ex.PW1/10, copy of cover note of the motorcycle is Ex.PW1/11, original bill of repair duly verified by the IO ASI Chitter Singh is Ex.PW1/12. Copy of OPD Card of Manas Ortho Clinic is Mark A.
9. Dr. Ashu Aggarwal, Sr. Orthopaedic and Replacement Surgeon, Manas Ortho Clinic was examined as PW2 and he proved the treatment record in respect of Yogesh as Ex.PW2/A. He stated that he had examined and treated the patient Yogesh Kumar and he proved the discharge summary Ex.PW1/1. He stated that the hospital had given the estimate Ex.PW1/5. The removal had to be done after two years of the surgery and the patient would have to rest 35 days after the operation.
10. Shri Mukesh Kumar, Service Manager, Lamba Enterprises was produced in the witness box as PW3 and he had brought the record of the petitioner's bike i.e. copy of job card, original bills, payment receipts etc. and the same are Ex.PW3/1 (colly). He stated that all the damaged parts of the bike due to the accident were changed. The payment of Rs.30,000/ was paid in advance in cash and other payment of Rs.20,400/ was made through Credit Card and rest Rs.2,000/ was paid in cash. PE was closed on 4.11.2015. Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 8 of 33 RE was closed on 4.11.2015.
11. I have heard the Learned Counsel for the petitioner as well as the Learned Counsels for the respondents and perused the record. The petitioner was also examined on 4.11.2015 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
12. My findings on the specific issues are as under:
Issue No. 1
13. As the case is U/s 166 M.V Act it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 9 of 33 of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 10 of 33
14. The case of the petitioner is that on 15.03.2015 he was going driving his motorcycle No.DL4SCE6856 at a very normal speed and he was proceeding from his residence at Raj Nagar, Palam Colony towards Maurya Hotel near Nehru Stadium, New Delhi where his employer company namely M/s Mix N. Serve had deputed him to attend his duty of Bar Tender via Main Road N.H. 8. At about 4.00 p.m. when he reached on Main Road NH8, near Central School Jharera Chowk, New Delhi then a car bearing registration No.HR26BC9817 being driven by its driver Shri Vinod Kumar Chouhan respondent No.1 at a very high speed, rashly, negligently without taking necessary precautions, without observing proper look out, violating the traffic rules and without blowing any horn came from the wrong side and violently hit his motorcycle with a great force. As a result of the forceful hit the petitioner along with his motor cycle fell down on the road and he sustained serious/ grievous injuries all over his body. His motorcycle was also badly damaged. Crowd gathered there. Someone from the crowd informed the police. PCR van came on the spot of accident and removed him to Safdarjung Hospital and got him admitted there. From there he was shifted to Jai Prakash Narayan Apex Trauma Centre (AIIMS) and he was again shifted from there to Mata Chanan Devi Hospital and got admitted there. The offending car No.HR26BC9817 was seized by the police from the spot of the accident and the driver Shri Vinod Kumar Chouhan respondent No.1 was also arrested by the police on the day of the accident. Police also recorded the statement of the petitioner at Mata Chanan Devi Hospital and lodged FIR against the driver Shri Vinod Kumar Chouhan Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 11 of 33 respondent No.1. It was contended that the accident took place solely and entirely due to the rash and negligent driving of the driver Shri Vinod Kumar Chouhan respondent No.1 of the offending vehicle bearing No.HR26BC9817. It was stated that in respect of the accident FIR No.126/15 under sections 279/338 IPC was registered at PS Delhi Cantt.
15. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of MLC, copy of arrest memo, copy of seizure memos; copy of mechanical inspection report of the offending vehicle and of the motorcycle of the petitioner, copy of verification report of the RC of the offending vehicle with the copy of the RC, copy of the insurance policy of the offending vehicle and its verification report and verification report of DL of the respondent No.1 with a copy of the DL and copies of bills in respect of the petitioner. As per the FIR No.126/15 under sections 279/337 IPC, PS Delhi Cantt. the case was registered on the basis of complaint of the petitioner Yogesh Kumar wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/337 IPC.
16. The respondent No.1 had filed the reply averring that the driver of the alleged vehicle bearing No.HR26BC9817 had not committed any rash and negligent driving against the injured and he never violated any traffic rules and Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 12 of 33 regulations and the application had been filed by the police on the basis of false facts. It was averred that the injured himself was driving his motorcycle bearing No.DL4SCE6856 in rash and negligent manner without following traffic rules and regulations due to which the accident had happened. It was submitted that the driver of the offending vehicle was driving his vehicle very carefully and by following the traffic rules and regulations. It was averred that the petitioner sustained injuries due to his own negligence. It was averred that the FIR has not been registered on the basis of any independent witness or a person who had seen the accident or was present at the site and the accident took place due to the rash and negligent driving of the vehicle of the injured. It was contended that the investigation was not properly done by the IO and the IO did not even make any efforts to inquire from any eye witness nor recorded the statement of the respondent No.1.
17. During crossexamination by the learned counsel for the insurance company PW1 stated that the speed of his motorcycle on 15.03.2015 was about 3035 k.m./hr. He was on the extreme left lane. He admitted that FIR was lodged after a delay of two days. He did not remember whether the police recorded his statement on 15.03.2015. He denied the suggestion that no such accident as alleged by him in para 2 of the evidence took place on 15.03.2015 at 4 p.m. Thus PW1 stated that the speed of his motorcycle on 15.03.2015 was about 3035 k.m./hr. He was on the extreme left lane and the site plan also shows that the accident had taken place towards the left side of the road. It Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 13 of 33 was contended on behalf of the insurance company that there was a delay of 2 days in lodging the FIR and PW1 had admitted that FIR was lodged after a delay of two days. However a perusal of the record shows that DD was received by the police on the date of the accident itself and further the motorcycle of the petitioner and the offending vehicle were also found on the spot of the accident by the police that day itself. As such, once the police was aware of the accident, it cannot be said that the delay in lodging the FIR would vitiate the case of the petitioner. The mechanical inspection report of the motorcycle of the petitioner shows damage to it and the mechanical inspection report of the offending vehicle shows damage to the front right side. As such the involvement of the offending vehicle in the accident cannot be disputed.
18. The respondent No.1 who is the driver and owner of the offending vehicle has not adduced any evidence to dispute the version put forth by the petitioner or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/337 IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 14 of 33 of vehicle No.HR26BC9811. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
19. It was stated that due to the accident the petitioner sustained serious/ grievous injuries all over his body. PCR van removed him to Safdarjung Hospital and got him admitted there. From there he was shifted to Jai Prakash Narayan Apex Trauma Centre (AIIMS) and he was again shifted from there to Mata Chanan Devi Hospital and got admitted there. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner. Thus it stands established that the petitioner had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioner and against the respondents.
Issue No.2
20. Since issue No.1 has been decided in favour of the petitioner he would be entitled to compensation as per the provisions of the Act. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, he is further entitled to non Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 15 of 33 pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
21. The case of the petitioner is that due to the accident on 15.3.2015 he sustained serious/ grievous injuries all over his body. PCR van came on the spot of accident and removed him to Safdarjung Hospital and got him admitted there. From there he was shifted to Jai Prakash Narayan Apex Trauma Centre (AIIMS) and he was again shifted from there to Mata Chanan Devi Hospital and got admitted there. It was submitted that due to the accident the petitioner sustained grievous injuries, fracture of shaft of humerus (left) and Orif was done, fracture of Upper end of Tibia (Proximal Tibia), fracture of olecranon left and TBW was done, he was profusely bleeding and he had abrasions and blunt Injuries all over the body. It was averred that the petitioner was discharged from the hospital on 18.03.2015 and during the period of his admission at Mata Chanan Devi Hospital his left upper hand (Humerus Bone) was operated upon and plates and nails were inserted in it. His left elbow (Olecranon) was also operated upon and tension bend wiring (TBW) was put in it. Thereafter, he visited in the OPD of Dr. Ashoo Aggarwal of Manas Ortho Clinic at Palam Colony, New Delhi about 8 to 10 times for regular checkup and he was still under active treatment. It was contended that the petitioner Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 16 of 33 received serious/ grievous injuries in the accident and he had undergone a lot of pain and suffering on account of the injuries received by him in the accident. It was averred that the petitioner had suffered permanent disability due to the injuries received by him in the accident and he could not lift weight with his left hand and he could not drive his motorcycle. It was stated that the petitioner had spent more than Rs.1,50,000/ on his medical treatment and his family members also attended him during the period of his treatment. It was averred that in future one more operation for removal of implant and TBW Screws from his left hand would be done and he would again have to incur more than Rs. 35,000/ on the operation. He would again have to take bed rest for at least one month and he would suffer loss of income of one month and he would also have to incur some amount on conveyance and special diet etc. The petitioner had also deposed to that effect. Original discharge slips, OPD cards and Xray report placed on record by the IO with DAR are collectively Ex.PW1/1, two original OPD cards are collectively Ex.PW1/2, original Medical bills and receipts are collectively Ex.PW1/3, three original medical bills are collectively Ex.PW1/4. He stated that he could not retain all his treatment papers and medical bills. The estimate of removal of implant given by treating doctor Dr. Ashoo Aggarwal is Ex.PW1/5 and copy of OPD Card of Manas Ortho Clinic is Mark A.
22. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and as per the same the nature of injuries was Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 17 of 33 opined to be grievous. The documents placed on record also show that the petitioner had sustained fracture of shaft humerus left, fracture olecranon left and fracture proximal tibia. The documents also show that the petitioner remained admitted in hospital. Thus the injuries were grievous in nature. However there is nothing to show that the petitioner had got any disability due to the accident. During crossexamination by the learned counsel for the insurance company PW1 denied the suggestion that he did not sustain any injuries in any vehicular accident on 15.03.2015 at 4.00 p.m. He denied the suggestion that he had not spent Rs.1,50,000/ on his medical treatment, Rs. 10,000/ on conveyance, Rs.20,000/ on special diet and Rs.18,000/ on attendant charges. He denied the suggestion that he did not require one more operation for removal of implant and TBW screws from his left hand which required an expenditure of Rs.35,000/. He denied the suggestion that Ex.PW1/5 was a forged, fabricated and a procured document. He denied the suggestion that the treatment record and medical bills Ex.PW1/2 to 4 and Mark A were forged, fabricated and procured documents. He admitted that he had not placed any disability certificate on record. He denied the suggestion that he did not become permanently disabled due to the accident. Thus mainly suggestions were put to PW1 which he denied.
23. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner had stated that he had spent more than Rs.1,50,000/ on his medical treatment The petitioner had filed bills Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 18 of 33 for an amount of Rs.1,40,544/ approximately. Looking to the nature of the injuries the petitioner is held entitled to the amount of the bills. The petitioner had filed original estimate form bill dated 29.06.2015 issued from Mata Chanan Devi Hospital Ex.PW1/5 for an amount of Rs.35,000/ for removal of implant and TBW screws. PW2 was also produced in the witness box to prove the same and he proved the treatment record in respect of Yogesh as Ex.PW2/A. He stated that he had examined and treated the patient Yogesh Kumar and he proved the discharge summary Ex.PW1/1. He stated that the hospital had given the estimate Ex.PW1/5. The removal had to be done after two years of the surgery and the patient would have to rest 35 days after the operation. During crossexamination by the learned counsel for the insurance company PW2 admitted that it was not necessary that implants were removed in all cases volunteered they were removed in most of the cases. In the present case there was requirement of removal of both the implant and the TBW screw. He stated that the amount may decrease or increase from the amount mentioned in the estimate. Thus PW2 admitted that it was not necessary that implants were removed in all cases though in the present case there was requirement of removal of both the implant and the TBW screw. In view of the testimony of PW2, the petitioner would be held entitled to the amount of the said bill. The petitioner would have incurred some expenses even subsequently. Accordingly an amount of Rs.1,80,000/ is awarded towards medical treatment and expenses including the amount of the bills. Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 19 of 33 PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
24. It has been held in Divisional Controller, K. S. R. T. C v Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (1969 1 All. E. R. 555) Lord Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monetary assessment."
The case of the petitioner is that due to the accident on 15.3.2015 he sustained serious/ grievous injuries all over his body. PCR van came on the spot of accident and removed him to Safdarjung Hospital and got him admitted there. From there he was shifted to Jai Prakash Narayan Apex Trauma Centre (AIIMS) and he was again shifted from there to Mata Chanan Devi Hospital and got admitted there. It was submitted that due to the accident the petitioner sustained grievous injuries, fracture of shaft of humerus (left) and Orif was done, fracture of Upper end of Tibia (Proximal Tibia), fracture of olecranon left and TBW was done, he was profusely bleeding and he had abrasions and blunt Injuries all over the body. It was averred that the petitioner was Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 20 of 33 discharged from the hospital on 18.03.2015 and during the period of his admission at Mata Chanan Devi Hospital his left upper hand (Humerus Bone) was operated upon and plates and nails were inserted in it. His left elbow (Olecranon) was also operated upon and tension bend wiring (TBW) was put in it. Thereafter, he visited in the OPD of Dr. Ashoo Aggarwal of Manas Ortho Clinic at Palam Colony, New Delhi about 8 to 10 times for regular checkup and he was still under active treatment. It was contended that the petitioner received serious/ grievous injuries in the accident and he had undergone a lot of pain and suffering on account of the injuries received by him in the accident. It was averred that the petitioner had suffered permanent disability due to the injuries received by him in the accident and he could not lift weight with his left hand and he could not drive his motorcycle. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and as per the same the nature of injuries was opined to be grievous. The documents placed on record also show that the petitioner had sustained fracture of shaft humerus left, fracture olecranon left and fracture proximal tibia. The documents also show that the petitioner remained admitted in hospital. Thus the injuries were grievous in nature. However there is nothing to show that the petitioner had got any disability due to the accident. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2015, the petitioner is awarded Rs.30,000/ (Rs.Thirty Thousand only) for pain and suffering.
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25. Copy of the educational certificate of the petitioner is Ex.PW1/7 as per which the date of birth of the petitioner is 3.9.1991. As such he would have been more than 23 years old on the date of the accident i.e. 15.3.2015. Notice can be taken of the fact that on account of the injuries sustained by him the petitioner may not have been able to perform his day to day duties towards his family and on account of the injuries suffered by him the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.10,000/ (Rs.Ten Thousand only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards loss of expectation of life or towards disfiguration. CONVEYANCE AND SPECIAL DIET
26. The petitioner in para 6 of his affidavit Ex.PW1/A had stated that he had spent Rs.10,000/ on conveyance. During crossexamination by the learned counsel for the insurance company PW1 denied the suggestion that he had not spent Rs.1,50,000/ on his medical treatment, Rs.10,000/ on conveyance, Rs.20,000/ on special diet and Rs.18,000/ on attendant charges. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the petitioner was taken to Safdarjung Hospital and thereafter to AIIMS and he was also treated at Mata Chanan Devi Hospital and that after discharge from hospital he might have hired the services of private Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 22 of 33 conveyance as he would not have been able to drive of his own or to use public conveyance. In the circumstances a sum of Rs.5,000/ (Rs.Five Thousand only) would be just and proper towards conveyance charges.
27. The petitioner in para 6 of his affidavit Ex.PW1/A had stated that he had spent more than Rs.20,000/ on special diet. During crossexamination by the learned counsel for the insurance company PW1 denied the suggestion that he had not spent Rs.1,50,000/ on his medical treatment, Rs.10,000/ on conveyance, Rs.20,000/ on special diet and Rs.18,000/ on attendant charges. Although the petitioner has not proved that he was advised special diet but looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.5,000/ (Rs.Five Thousand only) for special diet.
28. The petitioner in para 6 of his affidavit Ex.PW1/A had stated that he had spent more than Rs.18,000/ on attendant charges. During crossexamination by the learned counsel for the insurance company PW1 denied the suggestion that he had not spent Rs.1,50,000/ on his medical treatment, Rs.10,000/ on conveyance, Rs.20,000/ on special diet and Rs.18,000/ on attendant charges. Although the petitioner has not produced any evidence to show that he incurred any expenses towards attendant charges, however looking to the Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 23 of 33 nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.12,000/ is awarded towards attendant charges.
29. It is the case of the petitioner that his motorcycle was badly damaged in the accident. The motorcycle was insured with The Oriental Insurance Company Limited. It was stated that the petitioner had got his motorcycle repaired from M/s Lamba Enterprises Pvt. Ltd. (1516) D/E 35, Rama Road Industrial Area, Najafgarh Road, Delhi110015 and he had spent Rs.52,289/ on its repairs. He had also spent Rs.850/ on transportation of his motorcycle from PS Delhi Cantt. to M/s Lamba Enterprises Pvt. Ltd. (1516) D/E 35, Rama Road Industrial Area, Najafgarh Road, Delhi110015 for conducting repairs. The petitioner had also deposed to that effect. Copy of mechanical inspection report of the motorcycle is Ex.PW1/10, copy of cover note in respect of the motorcycle is Ex.PW1/11 and original bill of repair is Ex.PW1/12. During cross examination by the learned counsel for the insurance company PW1 admitted that the insurance of his motorcycle having registration No.DL4SCE6856 expired two days before the accident. He denied the suggestion that Ex.PW1/12 which was the final bill for repair of the motorcycle was a forged, fabricated and procured document. He admitted that he had never intimated the insurer of the offending vehicle regarding the damage to his motorcycle volunteered he could not intimate because he was on bed rest. He admitted that no surveyor appointed by IRDA ever surveyed the motorcycle in the Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 24 of 33 workshop. He stated that his motorcycle was one year old. It had done about 10,000/ k.m. He denied the suggestion that he was trying to claim old damages to his motorcycle which were not related to the damages caused due to the accident. He denied the suggestion that he had not spent Rs.850/ for transportation of his motorcycle. He had paid the bill in cash. He admitted that he had not placed any receipt for the final bill of repair of his motorcycle dated 26.04.2015. He denied the suggestion that the repairs carried out on his motorcycle did not tally with the damages as shown in the mechanical inspection report. He denied the suggestion that he had filed forged and fabricated documents. He denied the suggestion that he had filed an exaggerated claim. Thus PW1 admitted that the insurance of his motorcycle having registration No.DL4SCE6856 expired two days before the accident. No doubt the petitioner should have been careful and got his vehicle insured promptly but on that basis, he cannot be denied the right to claim the amount towards damage to his motorcycle from the respondent No.2. PW1 admitted that he had never intimated the insurer of the offending vehicle regarding the damage to his motorcycle and volunteered that he could not intimate because he was on bed rest. He also admitted that no surveyor appointed by IRDA ever surveyed the motorcycle in the workshop. He admitted that he had not placed any receipt for the final bill of repair of his motorcycle dated 26.04.2015. However the petitioner had also examined the witness from M/s Lamba Enterprises.
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30. The petitioner had examined PW3 who had brought the record of the petitioner's bike i.e. copy of job card, original bills, payment receipts etc. and the same are Ex.PW3/1 (colly). He stated that all the damaged parts of the bike due to the accident were changed. The payment of Rs.30,000/ was paid in advance in cash and other payment of Rs.20,400/ was made through Credit Card and rest Rs.2,000/ was paid in cash. Thus PW3 had stated about the payment made towards the repair of the motorcycle of the petitioner. During crossexamination by the learned counsel for the insurance company PW3 stated that he was not carrying any authority letter because he was a summoned witness. His signatures were only on the document on the back side of the job card. However, the other documents did not bear his signatures. He stated that the other documents bore the signatures of the cashier and the service advisor. He admitted that he had not brought the receipt of Rs.30,000/ which was paid in advance volunteered he could produce the same, if required. He stated that the vehicle was routinely serviced even prior to the date of the accident. He had not brought the job card of earlier service and the service bill. The vehicle was serviced at Subhash Nagar Work Shop prior to the date of the accident. At the time when the vehicle came to their work shop the only document submitted was the RC of the vehicle and no other document was submitted. He stated that the procedure followed by them when such an accidental vehicle came to their workshop was that they informed the insurance company who sent its surveyor. No such surveyor was sent since the insurance had already expired. He denied the suggestion that no advance Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 26 of 33 payment of Rs.30,000/ for repair of the vehicle was made by the claimant. He denied the suggestion that the repair carried out bore no connection with the damages sustained to the vehicle due to the accident.
31. PW3 thus admitted that he had not brought the receipt of Rs.30,000/ which was paid in advance and volunteered that he could produce the same, if required. He stated that the procedure followed by them when such an accidental vehicle came to their workshop was that they informed the insurance company who sent its surveyor but no such surveyor was sent since the insurance had already expired. A suggestion was put to him that the repair carried out bore no connection with the damages sustained to the vehicle due to the accident which he denied. The mechanical inspection report of the motorcycle of the petitioner shows that handle, both shockers and front mudguard were damaged, front rim was broken and tyre was punctured, head light was broken, petrol tank was damaged, the right side leg guard was slightly damaged and the battery cover was broken. Thus the motorcycle was damaged in the accident. It was contended on behalf of the insurance company that the damage to the motorcycle was much less than the repairs shown, no intimation was given to the insurance company prior to the repair, report of previous service of the motorcycle was not placed on record which would show the condition of the motorcycle and nothing was payable towards glass, rubber and plastic parts. However it cannot be disputed that the motorcycle was damaged in the accident. The insurance company would be Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 27 of 33 liable to some deduction towards the salvage. The petitioner had filed bill for an amount of Rs.52,289/. Further the petitioner had stated that he had spent an amount of Rs.850/ towards transportation of the motorcycle from PS Delhi Cantt. Considering the facts and circumstances of the case, the petitioner is held entitled to an amount of Rs.45,000/ towards the repair and transportation of the motorcycle.
LOSS OF INCOME
32. It is the case of the petitioner that at the time of the accident he was doing BA Arts course and he was studying in Final Year. Besides studying he was also doing part time job of Bar Tender with M/s Mix N. Serve Company at K2, 813/1, Ground Floor, Akshat Apartment, Mahipal Pur, New Delhi110037 and he was earning Rs.10,000/ to Rs.12,000/ p.m. Due to the injuries sustained by him in the accident, the petitioner could not resume his work from the date of the accident till date. It was contended that he was unable to do any type of work due to his accidental injuries and permanent disability. The petitioner had also deposed to that effect. Copy of pay slip issued by the employer is Ex.PW1/6 and copies of matriculation and intermediate certificate are collectively Ex.PW1/7. During crossexamination by the learned counsel for the insurance company PW1 admitted that he had not filed any proof to show that he was studying in the final year of B.A. (Arts Course). He stated that he was pursuing the same through correspondence. He denied the suggestion Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 28 of 33 that he was not pursuing any such course. He denied the suggestion that he was not doing a part time job of bar tender with M/s Mix and Serve Company and was not earning Rs.10,000/ to 12,000/ p.m. He denied the suggestion that Ex.PW1/6 was a forged, fabricated and procured document. Thus PW1 admitted that he had not filed any proof to show that he was studying in final year of B.A. (Arts Course). It is pertinent that he stated that he was pursuing the same through correspondence. Further the petitioner had stated about doing a part time job of bartender and he had produced a certificate to that effect from M/s Mix N Serve which is Ex.PW1/6. However the said certificate clearly mentions that the petitioner was working as a bartender on demand basis and as such he did not have a fixed job. During examination by the Tribunal the petitioner stated that he was 25 years old. He stated that he was working as a bartender prior to the accident and he was earning Rs.10,000/ to Rs.12,000/. He stated that at present he was not doing anything.
33. The petitioner has not produced any document to show that he remained on bed rest for any particular period and there is nothing to show that he was advised bed rest for any particular period or that on account of the injuries sustained in the accident he was unable to work or to show the period for which he was not able to work. During examination by the Tribunal the petitioner had stated that at present he was not doing anything but there is nothing to show that the same was on account of the injuries sustained in the accident. In the absence of any medical advice, notice can be taken of the fact Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 29 of 33 that the petitioner may not have been able to perform his avocation for some period. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs.30,000/ consolidated on account of loss of income.
34. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that he acquired any disability on account of the accident or that he is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce his efficiency to work and thereby he would suffer loss of future income. Accordingly the petitioner cannot be held entitled to any amount on account of loss of future prospects.
The total compensation is assessed as under:
Medicines and Medical treatment Rs.1,80,000/
Pain and suffering Rs.30,000/
Loss of Amenities of life Rs.10,000/
Conveyance Rs.5,000/
Special Diet Rs.5,000/
Attendant charges Rs.12,000/
Towards repair of
motorcycle Rs.45,000/
Loss of Income Rs.30,000/
TOTAL Rs.3,17,000/
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Yogesh Kumar Vs Vinod Kumar & Ors. Page 30 of 33
Thus the total compensation would be Rs.3,17,000/.
RELIEF
35. The petitioner is awarded a sum of Rs.3,17,000/ (Rs.Three Lacs Seventeen Thousand only) along with interest @ 9% per annum from the date of filing of the DAR till its realization on Rs. 2,82,000/ (excluding the amount awarded towards future medical treatment) including, interim award, if any already passed against the respondents and in favour of the petitioner. The respondent No.2 is directed to deposit the award amount directly in the bank account of the claimant in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. 50% of the amount be kept in FDR for a period of 2 years.
APPORTIONMENT OF LIABILITY:
36. The respondent No.1 is the driver cum owner and the respondent No.2 is the insurer of the offending vehicle. Thus the respondents No.1 and 2 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.2. Respondent No.2 i.e. Tata AIG Insurance Co. Ltd. being the insurance company in its reply had stated that the offending vehicle Maruti Alto LXI No.HR26BC9817 was insured in the name of Vinod Kumar Chauhan vide policy No.015304131100 from 19.06.2014 to 18.06.2015 with Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 31 of 33 the respondent No.2. There is no evidence on behalf of the respondent No.2 to show that there was any violation of the rules and terms of policy by the respondent No.1 and in fact the duly verified documents regarding the offending vehicle were placed on record by the IO with the DAR. Hence, the respondent No.2 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondent No.1.
The respondent No.2 being the insurer is directed to deposit the award amount in the bank account of the claimant in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award with interest as directed in para 35 of the judgment cum award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
37. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount. The insurer shall deposit the award Suit No.D156/15 Yogesh Kumar Vs Vinod Kumar & Ors. Page 32 of 33 amount along with interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 21.4.2016.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi and to the concerned court and to the Learned Secretary, NDDLSA. File be consigned to record room.
Announced in open court
on this 21st day of January, 2016 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No.D156/15
Yogesh Kumar Vs Vinod Kumar & Ors. Page 33 of 33