Delhi District Court
Sh. Niranjan Lal vs Sh. Gurdev Singh on 20 September, 2012
IN THE COURT OF SH. ARVIND KUMAR : PRESIDING OFFICER: MACT
KARKARDOOMA COURTS : DELHI
M.A.C. Petition No: 1133/10
Unique Case ID No. : 02402C0067872010
Sh. Niranjan Lal
S/o Sh. Sarju Prasad
R/o 81A, Jhuggi, E-46, D-35,
Jain Mandir, Dilshad Colony,
Delhi. ...Petitioner
VERSUS
1. Sh. Gurdev Singh
S/o Sh. Dilip Singh
R/o C-21, LIG DDA Flats, Loni Road,
Delhi.
2. Dr. N. C. Gupta
R/o 65, Sadar Apartment,
Mayur Vihar, Phase-I, Delhi-110091.
3. The Oriental Insurance Company Ltd.
At : 88, Janpath, Connaught Place, New Delhi.
4. Sh. Dalip Singh
S/o Sh. Buta Singh
R/o C-563, LIG Flats, East of Loni Road,
near Sarvodaya Kanya Vidhyalaya,
Delhi. ...Respondents
Date of institution : 11.03.2010
Reserved for orders : 14.09.2012
Judgment pronounced on : 20.09.2012
JUDGMENT
1. The petitioner has filed present claim under section 166 & 140 of M.V. Act claiming compensation of Rs. 10,00,000/- (Rs. Ten Lacs) for the injuries suffered by the petitioner in the roadside accident occurred on 12.01.2010.
2. The brief facts, as stated by petitioner, are that on 12.01.2010 the petitioner was going on a cycle towards his home and when he reached in front of Bhoomi Apartment, Shalimar Garden, Sahibabad, UP, a Maruti Car bearing No. M.A.C. Petition No: 1133/10 Page No. 1/8 DL-2C-K-5296, being driven by respondent No. 1 rashly, negligently and at a high speed, hit the cycle. The petitioner suffered injuries and has also suffered permanent disability. It is stated that petitioner was a labourer and was earning Rs. 6000/- per month. It is also stated that petitioner sustained fracture of right leg femur bone besides other injuries.
3. The respondent No. 1 did not file written statement and did not contest the case and was proceeded ex-parte on 16.03.2011.
4. The respondent No. 2 filed written statement stating that respondent No. 2 was not the owner and in possession of vehicle in dispute on the date of alleged accident and the respondent No. 2 had already sold the vehicle and transfered to Maruti True value on 20.10.2009 against the delivery receipt dated 20.10.2009 and the vehicle was transfered in the name of Sh. Dalip Singh and the petition was not maintainable. The respondent No. 2 has denied almost all the contents of the petition for want of knowledge.
5. The respondent No. 3 filed written statement admitting that vehicle bearing No. DL-2C-K-5296( Maruti -800 Car) was insured with respondent No. 3 vide policy No. 272202/31/2010/788, valid from 31.08.2009 to 29.08.2010. The respondent No. 3 further stated that liability of the respondent would be subject to the driving licence of the driver of the said vehicle being found valid and in order on verification. It is also stated that insurance company was taking all the defences as available under section 3, 4, 66, 147, 149 and 157 of Motor Vehicles Act.
6. The respondent No. 4 did not contest the case and did not file written statement.
7. On the basis of the pleadings following issues were framed:-
1. Whether the petitioner suffered injuries in the accident occurred on 12.01.2010 due to rash and negligent driving of vehicle No. DL-2C-K-5296 being driven by respondent No. 1? (OPP) M.A.C. Petition No: 1133/10 Page No. 2/8
2. Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
3. Relief.
8. The petitioner examined himself as PW-1. On the other hand respondents did not examine any witness.
9. I have heard counsels for the parties. My findings are as under:
Issue No. 110. The petitioner examined himself as PW-1 and deposed that on 12.01.2010 he was going on a cycle towards his home and when he reached in front of Bhoomi Apartment, Shalimar Garden, Sahibabad, UP, a Maruti Car bearing No. DL-2C-K-5296, being driven by respondent No. 1 rashly, negligently and at a high speed, hit the cycle. The petitioner suffered injuries and has also suffered permanent disability. The petitioner exhibited the discharge summary issued by GTB hospital as Ex. PW-1/1, original treatment record as Ex. PW-1/2, original bills as Ex. PW-1/3, attested copy of FIR as Ex. PW-1/6 and attested copy of complaint as Ex. PW-1/7. During cross-examination petitioner denied the suggestion that accident took place because of his negligence.
11. The FIR and testimony of PW-1 taken together fully establish that the injuries were sustained by petitioner involving vehicle (Maruti Car) bearing registration No. DL-2C-K-5296, in a road accident. There is nothing on record to dispel the inference that petitioner sustained injuries in a road accident which occurred on 12.01.2010 because of rash and negligent driving of vehicle bearing No. DL-2C-K-5296 being driven by the respondent No. 1. There is nothing on record to infer that there was any negligence on the part of petitioner. There is no evidence in rebuttal. Issue No. 1 is accordingly decided in favour of petitioner and against the respondents.
M.A.C. Petition No: 1133/10 Page No. 3/8 Issue No. 212. The petitioner, PW-1, deposed that he suffered fracture of right leg femur bone besides other injuries and after the accident, he was taken to GTB hospital, Shahdara Delhi where he remained admitted from 13.01.2010 to 03.02.2010 and during hospitalization an operation was done and nailing was also done. Petitioner stated that his treatment continued for 12 months and he had become permanently disabled due to the said accident. Petitioner stated that at the time of accident he was doing the labour work and was earning Rs. 6000/- per month and he could not attend his work after the accident and he lost his income from labour work for 18 months and he was not able to work as he was working earlier. The petitioner further stated that he incurred Rs. 25,000/- on medical treatment and conveyance etc. Petitioner exhibited the discharge summary as Ex. PW-1/1, treatment record as Ex. PW-1/2, bills as Ex. PW-1/3, voter I-card as Ex. PW-1/4, ration card as Ex. PW-1/5 and disability certificate as Ex. PW-1/8. During cross-examination petitioner stated that his entire treatment was conducted at GTB hospital, Delhi. Petitioner stated that he was able to walk freely without any assistance but there was some problem. Petitioner stated that he had no document to show that he was working as a labour prior to the accident and was earning Rs. 6000/- per month.
13. I have gone through the material on record.
14. In the recent judgment of Raj Kumar Vs. Ajay Kumar, 2011, ACJ-1, Hon'ble SC enumerated the principles for granting the compensation in the case where the petitioner has suffered disability. In the judgment " Raj Kumar Vs. Ajay Kumar and another", ACJ-2011(Vol. I), Hon'ble Apex Court observed as under:-
" Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability [sic disability] ( this is also relevant for awarding compensation under the head loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to M.A.C. Petition No: 1133/10 Page No. 4/8 find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated,the permanent physical or functional disablement may be assessed around 60 per cent. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100 per cent as in the case of a driver or carpenter, nor 60 per cent which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of loosing his hand. Sometimes the injured- claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability and may, therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100 per cent (or even anything more than 50 percent), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
15. The discharge summary issued by GTB hospital shows that petitioner M.A.C. Petition No: 1133/10 Page No. 5/8 was admitted on 13.01.2010 and was discharged on 03.02.2010. It is recorded in discharge summary that petitioner had suffered S/C femur right. Treatment record shows that petitioner remained under treatment till November'2010. The disability certificate issued by GTB hospital shows that petitioner has suffered permanent locomoter disablement of 42% in relation to right lower limb. The petitioner has suffered locomoter impairment. Petitioner stated himself to be a labourer but did not specify the nature of job being done by him. Therefore, disability in relation to whole body is taken to be 21%. The petitioner stated that he was working as labour and was earning Rs. 6000/- per month but failed to establish that he was working as labour and was earning Rs. 6000/- per month. In the absence of any document with regard to earning of the petitioner, minimum wages can be taken into consideration. The minimum wages at the relevant time were Rs. 5278/- per month. As per the judgment of " Santosh Devi Vs. National Insurance Company Ltd. and others, C. A. No. 3723/12 (arising out of ALP (C) No. 24489 of 2010), 30% of the amount is added towards inflation future prospect. After adding the 30% of the amount, the amount comes to Rs. 6861/-( 5278 + 1583) per month. From the material on record it can be easily deduced that petitioner must have remained out of work for about 5-6 months and must have required services of attendant for 3-4 months. The age of the petitioner at the time of accident was about 40 years (as per voter I-card ). The multiplier applicable would be 15. Therefore the loss of future earning due to disability can be calculated by multiplying the annual income with percentage of disability and with multiplier of 15. The total loss in future earning on account of disability comes to Rs. 2,59,345/- (Rs. 6861 x 12 x 15 x .21).The bills are for Rs. 8105/-. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the petitioner:-
1. Compensation towards pain and sufferings Rs. 80,000/-
2. Compensation towards loss of amenities, enjoyment, Rs. 80,000/- change of gait/ disfigurement
3. Loss of future earning due to injuries Rs. 2,59,345/-
4. Loss of earning of petitioner for 6 months @ Rs. 6861/-per Rs. 41,166/-
month M.A.C. Petition No: 1133/10 Page No. 6/8
5. Expenses towards medical bills Rs. 8105/-
6. Compensation towards conveyance and special Rs. 20,000/- diet (without bills)
7. Compensation towards attendant charges @ 4000/- per Rs. 16,000/-
month for four months
Total Rs. 5,04,616/-
Therefore, in my opinion the petitioner is entitled to Rs. 5,04,616/- which shall be the just compensation to petitioner.
LIABILITY
16. The respondent No. 2 had stated in the written statement that he had sold the vehicle No. DL-2C-K-5296 to respondent No. 4, on 20.10.2009. The respondent No. 4 did not file written statement. The photocopy of delivery receipt and RC in the name of respondent No. 4, is on record. Hence I hold that respondent No. 4 was the owner of the vehicle at the time of accident.
17. Since Insurance company has admitted the policy as on date of accident therefore respondent No. 3/ insurance company is liable to pay the compensation amount.
18. There being no evidence of violation of the policy condition and there being no evidence to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
RELIEF:-
19. While granting the relief to petitioner, I am also to award the interest @ 7.5% p.a on the above said amount of Rs. 5,04,616/-, inclusive of interim compensation, from the date of filing of petition till realization of the amount. Issue No. 3 is answered accordingly.
M.A.C. Petition No: 1133/10 Page No. 7/820. For the aforesaid reasons, I pass the following award:-
AWARD In view of the above the petition is allowed. The respondent No. 3 is liable to pay the compensation of Rs. 5,04,616/-/-. Hence the respondent No. 3 is directed to deposit a compensation of Rs. 5,04,616/- within one month. The respondent No. 3 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner.
21. 50% of the awarded amount be kept in FDR for the period of five years and rest of the amount be released to the petitioner immediately.
22. A copy of the award be given free of cost to the parties concerned. List on 20.11.2012 for compliance.
Announced in the open (Arvind Kumar)
court on 20.09.2012 Presiding Officer
Motor Accident Claim Tribunal
Karkardooma Courts,
Delhi
M.A.C. Petition No: 1133/10 Page No. 8/8