Delhi District Court
( vs Sh. Jasbir Singh S/O Late Sh. Narender ... on 28 February, 2012
IN THE COURT OF SHRI CHANDRA BOSE:
JUDGE:MACT:DELHI
MACT NO. : 919/07
UNIQUE ID CASE NO: 02404C0597202007
Sh. Narender Singh S/o Late Sh. Kishan Lal
R/o E108, Sharma Colony PhII, Budh Vihar, Delhi.
(Petitioner)
Versus
1. Sh. Jasbir Singh S/o Late Sh. Narender Singh
R/o E302, Greater Kailash, PartII, New Delhi48
2. M/s Alfa Bhoj Ltd.
816, Arunachal Building, Barakhamba Road, Cannaught Place
New Delhi
3. The Bajaj Allianz General Insurance Company Ltd,
C31 & 32, Cannaught Circus, Cannaught Place, New Delhi1
(Respondents)
DATE OF INSTITUTION : 20.10.07 DATE OF RESERVING ORDER: 21.10.11 DATE OF PRONOUNCEMENT : 28.02.12 AWARD
01. This claim petition has been filed U/s 166 and 140 of M.V. Act 1988 by the petitioner seeking compensation to the tune of Rs. 8,00,000/ for accidental injuries against Sh. Jasbir Singh, MACT No. 91907 1 of 12 M/s Alfa Bhoj Ltd. and M/s Bajaj Allianz Insurance Company Ltd, (hereinafter to be referred as R1, R2 and R3 respectively).
02. The brief facts of the case, as per claim petition, are that on 21.07.07 he alongwith SI Umesh Sharma, ASI Govind, ASI Subodh and other staff members was standing on the Ring Road in front of PS Samai Pur Badli and they were checking the speed of vehicles through interceptor coming from Madhuban Chowk side and proceeding towards Karnal side. It is stated that at about 6:30 am, Const. Pushkar who was on duty on interceptor announced on mike that Car no. DL2C/M9905 was coming at excessive speed, rashly and negligently and asked to stop it for challan and when he gave indication by his right hand to stop the car, then the driver of the said car instead of stopping it increased the speed and try to flee away from the spot. On seeing his rash and negligent driving and high speed, he tried to save himself by rushing towards central verge, then respondent no.1 hit his car on the right leg of petitioner and tried to flee away from the spot and in that process, he also hit one motorcycle No. DL8SAA6576. As a result of forceful hit, he as well as motorcyclist fell down on the road and both of them sustained grievous injuries all over their bodies. He was removed to Saroj Hospital and after first aid he was shifted to Bhagwan Mahavir Hospital at Pitampura.
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03. WS was filed on behalf of R1 wherein petitioner's case was denied. It was also stated in the WS of R1 that accident had occurred due to carelessness and negligence of the injured.
04. R2 was proceeded exparte on 11.03.08
05. W.S was filed on behalf of R3 wherein petitioner's case was denied. However, it was admitted that vehicle no. DL2CM9905 was insured vide policy no. 0G071104180100013540 valid from 83.09.06 to 07.09.07.
06. On the basis of pleadings of the parties, following issues were framed on 18.08.08:
(i) Whether on 21.07.07, at about 6:30 am, in front of police station Samaypur Badli, car no. DL2CM9905 which was being driven rashly and negligently hit petitioner and caused injuries to him? OPP.
(ii) Whether petitioner himself was guilty of negligence?
OPP
(iii) Whether petitioner is entitled to compensation as prayed for, if so, from which of the respondent? OPP.
(iv) Relief.
07. In order to prove his case, petitioner filed his affidavit and examined as PW1. PW2 Smt. Manorma Handa, Officer, Bhagwan MACT No. 91907 3 of 12 Mahavir hospital, PW3 HC Chander Bhan, PW4 Dr. Rahul Aggarwal and PW5 Dr. G.C. Verma were also examined on behalf of petitioner. No evidence was led on behalf of respondents. No arguments were addressed on behalf of respondents.
08. I heard final arguments of counsel for petitioner. I considered his submissions and evidence on record. My findings on the issues are as under:
09. FINDINGS ON ISSUE NUMBER 1 & 2:
Petitioner has filed his affidavit wherein he has stated that on 21.07.07, he along with SI Umesh Sharma, ASI Govind, ASI Subodh and other staff members was standing on the Ring Road in front of PS Samai Pur Badli and they were checking the speed of vehicles through interceptor coming from Madhuban Chowk side and proceeding towards Karnal side. It is further stated that at about 6:30 am, Const. Pushkar who was on duty on interceptor announced on mike that Car no. DL2C/M9905 was coming at excessive speed, rashly and negligently and asked him to stop it for challan and when he gave indication by his right hand to stop the car, then the driver of the said car instead of stopping it increased the speed and try to flee away from the spot. It is further stated that on seeing his rash and negligent driving and high speed, he tried to save himself by rushing towards central verge and when he was in the process of climbing up on the MACT No. 91907 4 of 12 central verge, then respondent no.1 hit his car on his right leg and tried to flee away from the spot and in that process, he also hit one motorcycle No. DL8SAA6576 and ultimately was caught hold by ASI Subodh with the help of other staff members. It is further stated that as a result of forceful hit, petitioner fell down on the road and sustained serious injuries all over his body. It is further stated that he was removed to Saroj Hospital and after first aid he was shifted to Bhagwan Mahavir Hospital at Pitampura and was got admitted there. Petitioner was cross examined on behalf of R3. I perused cross examination. It has come during crossexamination that petitioner was standing on the middle of the road for stopping the vehicles coming at fast speed and other staff members were also standing on the road just few feet away. It has further come during crossexamination that when petitioner was asked to stop the offending car, it was at a distance of 100 meters and there was no vehicle ahead of the offending car. It has been admitted by the petitioner during his crossexamination that normal practice is not to stand in the middle of the road for stopping the vehicle. He has also admitted during his crossexamination that he came to the middle of the road because the driver of the offending car was not stopping it on seeing his signal and he tried to rush towards central verge (divider) as offending vehicle was not being stopped. It has come in evidence that right hand portion of the offending car had MACT No. 91907 5 of 12 hit the petitioner. It is clear from the evidence of petitioner that he had come on the middle of the road when the driver of the offending car had not stopped it even on seeing his signal. No doubt, it was the duty of the driver of the offending car to stop his car when signal was given in this regard by the petitioner but the petitioner should not have come on the middle of the road when the driver of the offending car had not stopped it. In my view, accident could have been very well avoided by the petitioner had he not come on the middle of the road. I am also of the view that even if the petitioner had come on the middle of the road to stop the offending car, it was the duty of R1 to stop his car immediately but he has not done so and the petitioner had to rush immediately towards central verge. Therefore, petitioner as well as R1 are equally responsible for the accident. Issue no.1 and 2 are decided accordingly.
10. FINDINGS ON ISSUE NUMBER 3 Every victim of roadside accident is entitled to receive compensation in terms of money. Petitioner has suffered injuries in the present case. Therefore, he is entitled to compensation. The amount of compensation is of help to the victim to avail better treatment. It also helps to recoup their losses and expenditure which had been incurred. Compensation is granted under the following heads:
MACT No. 91907 6 of 12 (i) Compensation for pain & sufferings. (ii) Compensation for expenses incurred on medical
treatment, future treatment, special diet, conveyance and attendant.
(iii) Compensation on account of loss of income.
(iv) Compensation on account of loss of leaves
(v) Compensation on account of future loss of earning capacity due to disability.
(vi) Compensation on account of loss of enjoyment of amenities of life .
11. The relevant heads are discussed as under:
(i) Compensation for pain and sufferings;
It has come in evidence that the petitioner remained admitted in Bhagwan Mahavir Hospital from 21.07.07 to 04.08.07 and his right leg was operated upon by fixing interlocking in tibia and rush nail in fibula. It has also come in evidence that he had suffered comminuted fracture of both bones of right leg, abrasions and blunt injuries all over his body. He has also visited in OPD of Bhagwan Mahavir Hospital, Aruna Asif Ali Hospital, Rao Tula Ram hospital, Brahm Shakti hospital and Sanjay Gandhi hospital for about 3035 times.
MACT No. 91907 7 of 12 Considering the nature of injuries sustained by the petitioner, period of admission in hospital, and proof of visits as OPD patient, I am of the view that petitioner has suffered too much pain and agony at the time of accident as well as during treatment. Therefore, he is granted Rs. 60,000/ under this head.
(ii) Compensation for expenses incurred on medical treatment, future treatment special diet, conveyance and attendant:
Petitioner has relied upon the medical bills Ex. PW1/20 to PW1/26. The total of medical bills Ex. PW1/20 to 1/26 comes to Rs. 10,762. . Therefore, he is granted Rs. 10,762/under this head.
Petitioner has filed future estimate for removal of interlocking nail and rush nail from his right leg which is of Rs. 20,150/. In my view, the amount of estimate of future treatment should be granted. Therefore, Rs. 20,150/ is granted for future treatment.
Considering the fact that some kind of special diet is required for healing wounds sustained in accidental cases, I am of the view that petitioner should be granted compensation under this head. Therefore, he is granted Rs. 4,000/ on special diet.
Petitioner is resident of Sharma Colony, PhaseII, Budh MACT No. 91907 8 of 12 Vihar. He has treated in Bhagwan Mahavir Hospital, Aruna Asif Ali Hospital, Sanjay Gandhi hospital and Brahm Shakti hospital. Therefore, in my view, if he is granted Rs. 3000/, it would meet the ends of justice. Therefore, he is granted Rs.3,000/ in respect of conveyance.
(iii) Compensation on account of loss of Income.
Petitioner has admitted during crossexamination that he got his regular increment in his income and there was not deduction of his salary during his treatment or when he remained on leave. Therefore, it is clear that there was no loss of income/salary. Therefore, nothing can be granted under this head.
(iv) Compensation on account of availing of leaves of 297 days Petitioner has relied upon the copy of office order/leave certificate Ex. PW1/30. As per document Ex. PW1/30, petitioner had availed EL of 222 days and commuted leave of 75 days. In view of ratio of case law namely "Himachal Road Transport Corporation and another Vs Ganeshwar Sharma and another, 2001 ACJ 931 and United India Insurance Co. Ltd Vs Shyam Kumar and others, 2006 ACJ 2092", I am of the view that petitioner should be granted compensation on account of loss of 297 days leaves which may be MACT No. 91907 9 of 12 taken loss of salary for about 10 months. As per document Ex. PW1/29, petitioner was getting Rs. 19,541/ in the month of November, 2008. Therefore, Rs. 1,95,410/ (19,541/ *10) is granted for loss of leaves of 297 days.
V Compensation on account of future loss of earning capacity due to disability.
Petitioner has not claimed that there is future loss of earning capacity due to permanent physical disability. As per document Ex. PW1/30, petitioner was working as Head Constable in Delhi Police and he has no future loss of earning capacity due to disability. No evidence has been led on behalf of petitioner in this regard. It is not the case of petitioner that his salary or any other benefits were reduced due to permanent physical disability. Therefore, nothing is granted under this head.
VI Compensation on account of loss of enjoyment of amenities of life during treatment.
Dr. G.C. Verma has proved the fact that petitioner has suffered loss of range of movement of his right ankle joint and he can sit on floor with slight difficulty. He also proved the fact that he would face difficulty in running. Considering the testimony of Dr. G.C. Verma, I am of the view that the petitioner would not be able to enjoy MACT No. 91907 10 of 12 those amenities of life in which running is required. . Therefore, it would be in the fitness of things, if he is granted a sum of Rs. 30,000/ for loss of enjoyment of amenities of life. As such he is granted Rs. 30,000/ under this head.
12. For the discussions as above, petitioner is granted compensation under following heads:
1. Compensation for pain & sufferings. : 60,000/
2. Compensation for expenses incurred on medical : 37,912/ treatment, future estimate special diet, conveyance and other expenses.
3. Compensation on account of loss of leaves : 1,95,410/
4. Compensation on account of loss of enjoyments of amenities of life : 30,000/ _______________ Total Rs. 1,47,322/ _______________
13. To sum up, I hold that the petitioner is entitled to receive Rs. 1,47,322/.
14. So far as the liability to pay the compensation is concerned, it is primarily duty of R1, i.e. driver of offending vehicle, R2, i.e. owner of the offending vehicle and R3, i.e insurer of the offending vehicle are vicariously liable for the damages suffered by the MACT No. 91907 11 of 12 petitioner. The vehicle was duly insured with R3 and R1 was having valid & effective DL as on the date of the accident. Since petitioner was also equally responsible for accident, he is entitled half of the total amount of compensation and therefore, R3 is liable to pay half of the compensation amount i.e. Rs.73,661/ (half of 1,47,322/) . This issue is decided accordingly.
15. RELIEF The petitioner is now entitled to receive Rs.48,661/ (after deduction of interim award of Rs. 25,000/) from R3. Therefore, I direct R3 to pay the said amount to petitioner within 60 days of today alongwith interest @ 7.5% per annum to be calculated from the date of institution till date of actual deposit failing which petitioner would be entitled to further interest @ 12% for the delayed period.
16. Copy of this order be given to parties for compliance.
17. Petition is disposed of on aforesaid terms. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT (CHANDRA BOSE)
ON 28.02.12 JUDGE/MACT:ROHINI
DELHI
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