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Delhi District Court

Vijay Pal Son Of Shri Ram Kesh vs Harpreet Singh @ Happy Son Of Jarnail ... on 3 May, 2012

               IN THE COURT OF MS. NIRJA BHATIA :
    PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL :
                      SAKET : NEW DELHI


Suit No.312/2011/2003
Unique Case ID No.02403C0183972003

Vijay Pal Son of Shri Ram Kesh,
R/o 298, Bazar Mohalla, Tughlakabad Village, New Delhi-110044.
                                                           Petitioner

                                                          Versus

1         Harpreet Singh @ Happy Son of Jarnail Singh (driver)
          R/o Village Passo, Tehsil Nabha, District Patiala, Punjab.

2         Prabir Kumar Mukherjee Son of late A.N.Mukherjee (owner)
          Resident of :
          i)    A-23, CR Park, New Delhi-110019.
          ii)   Shop No.5, Kamla Sweet, Market No.1, CR Park, New Delhi
                R/o J-84, Kalkaji, New Delhi-110019.

3         Bajaj Allianz General Insurance Company Limited,
          Regional Office : 4/44, Asaf Ali Road, New Delhi-110002.
                                                               Respondents
                               --------------------------

Date of institution:                                                  05.04.2003

Date of reserving judgment/order:                                     03.05.2012

Date of pronouncement:                                                03.05.2012
                                                -------------------------



Suit No.312/2011/2003 (Vijay Pal   Vs. Harpreet Singh etc.)                        Page 1 of 15
 AWARD

This judgment cum award shall decide the present petition filed under Section 166 read with Section 140 MV Act, 1988 as amended up to date (hereinafter referred as Act), for grant of compensation in an injury case. 2 The brief facts necessary for decision are that the petitioner, Vijay Pal met with road traffic accident while on his way on two-wheeler scooter, bearing registration No.DL 3S H-5843 to Lal Kuan when he was hit near Shamshan Ghat, Tughlakabad Village by the offending vehicle, maruti van bearing registration No.DL 2C S-2239, allegedly being driven rashly and negligently and at very fast speed by R-1, Harpreet Singh. It is claimed that due to the accident, the petitioner suffered grievous injuries and was removed to Holy Family Hospital where his MLC was made. The respondent-driver was apprehended from the spot.

3 It is claimed by the petitioner that his injuries were so severe that he remained on ventilator support from 8.9.2002 to 15.9.2009. He remained hospitalized from the above date of 8.9.2002 till 18.10.2002 on which date, he was discharged after treatment. The petitioner claimed that even after discharge, he has not been able to recover completely and has suffered disability.

4 The petitioner states that he has suffered considerable loss of business as his shop of spare parts remained closed due to his having suffered the accident due to which he was rendered incapacitated to work. It is averred that the additional expenses on account of treatment, medicines, diet and conveyance have also been incurred and on account of the above, the petitioner has prayed for a total compensation of Rs.5 lac along with interest @ 18% per annum.

5 Subsequent to the filing of the petition, summons were issued to the respondents. The respondent No.2 was served and filed his WS. The insurance company also filed its reply. Despite the efforts made to serve the respondent No.1, he could not be served. Lastly, the petition itself was dismissed in default vide order dated 28.3.2006 as the petitioner did not appear and also took no steps for very long time. Subsequently, on application under Order 9 Rule 9 CPC for restoration, the respondents Nos.2 and 3 caused appearance and cited their no objection for the restoration, which was allowed. In the meanwhile, efforts were again made to serve the respondent No.1, who was served by publication in 'Punjab Kesri'. As despite service, no appearance was received on behalf of respondent No.1 and as in the meanwhile, the respondent No.2 also stopped appearing, both the respondents were proceeded ex-parte on 31.3.2010.

6 On the strength of the replies received on record, the issues were framed by my learned Predecessor vide order dated 18.8.2010 to the following extent :

1 Whether the petitioner suffered injuries in an accident that took place on 7.9.2002 at 10.30 AM involving Maruti Van, No.DL 2C S-2239 driven by respondent No.1, owned by respondent No.2 and insured with respondent No.3? OPP 2 Whether the petitioner is entitled for compensation? If so, to what amount and from whom?

3 Relief.

7 In pursuance to the issues framed, the petitioner appeared and tendered his examination affidavit. He also brought his brother, Shish Pal as Suit No.312/2011/2003 (Vijay Pal Vs. Harpreet Singh etc.) Page 3 of 15 one of his witness. One eye-witness, Amar Pal also deposed besides the IO, HC Bhaiya Ram, whereafter PE was closed. The respondent-insurance company brought R3W1 Ms.Anushree Dutt, Executive Legal as its sole witness whereafter RE was closed. Both the parties have addressed their respective arguments. I have heard the same and have carefully gone through the record. My findings on the issues, are as follows :

ISSUE NO.1 : NEGLIGENCE

8 Since, the present petition is registered as claim petition under Section 166(4) of MV Act, it was incumbent upon the petitioner to establish the factum of negligence attributable to driver, Harpreet Singh, R-1 in plying the maruti van. The petitioner has stressed upon the contention of Harpreet Singh in showing his ill intention coupled with element of rashness attributable to him by stating that R-1 was driving the maruti van without having proper documents and infact with intention to impersonate himself as one Sanjay Singh. It is established on record from the charge-sheet filed by the IO, HC Bhaiya Ram, who has also deposed as PW3 that on being apprehended, R-1 Harpreet Singh was questioned about his competence to drive and was asked to produce his license. When the IO suspected the genuineness of the DL as he doubted the photograph appended on the DL to be not of R-1, Harpreet Singh, the matter was investigated further and it was revealed that the driver Harpreet Singh has intentionally and deliberately distorted the photograph of the DL which had been issued in the name of Sanjay Singh, concealing the above fact with intention to wrongly use the same. It has also been probed by the IO that the maruti van was being driven by R-1, Harpreet Singh on behalf of R-2 in order to drop sweets. Further, the site plan reflects that the accident has occurred in the lane not meant for driving the maruti van which also reflects that the vehicle was being driven rashly throwing all the cautions to Suit No.312/2011/2003 (Vijay Pal Vs. Harpreet Singh etc.) Page 4 of 15 the air. The fact that the petitioner has been so badly hurt in the accident, also reflects to the speed and manner in which the maruti van must have been driven as otherwise had the vehicle being driven at the normal speed, it could have been controlled easily. The fact that the driver, Harpreet Singh was plying the van, is established duly from his arrest and subsequent release on bail. The involvement of the offending vehicle, maruti van is also established from the seizure memo. The mechanical inspection report also reflects the damages on the part of the offending vehicle showing its involvement. In view of the above, sufficient material is placed to indite the erring driver in plying the offending maruti van, rashly and negligently and in causing the accident against the petitioner.

9 Further, the petitioner has stated on oath that consequent to the proceedings, the driver Harpreet Singh has also been found guilty for having caused the offence punishable under Section 279/338/420/468/471 IPC read with Section 3/181 MV Act and had been sentenced for a period of approximately two months and 20 days in pursuance of his admitting to the guilt. In the circumstances above, I am of the view that sufficient material is available on record to establish the guilt of the erring driver, Harpreet Singh. 10 Even otherwise, it is pertinent to observe that the degree of proof required for proving the negligence on the part of the driver in the present proceedings, is not as vigorous as is laid in proving the guilt of the accused in criminal trial. The intent of the present legislation is benevolent and the entire purpose of the legislation is likely to be defeated if in each case the petitioner is asked to prove beyond reasonable doubt the involvement and negligence on the part of the driver. In reaching to the above opinion, I am guided by the judgment of Kaushnuma Begum and others Versus New India Assurance Limited, 2001 ACJ 421 SC as well as the case reported Suit No.312/2011/2003 (Vijay Pal Vs. Harpreet Singh etc.) Page 5 of 15 as National Insurance Company Limited Versus Pushpa Rana, 2009 ACJ 289, wherein it is held that mere involvement of a vehicle is sufficient to establish and hold the claim petition to be maintainable. It is held that even the certified copy of charge-sheet may not be asked for if the petitioner is able to satisfy on record the involvement of the offending vehicle through the copy of FIR and the mechanical inspection report. The issue hence, is decided in favour of the petitioner and against the respondents. ISSUE NO.2 : COMPENSATION MEDICAL BILLS 11 The petitioner has filed on record original medical bills, amounting to Rs.2,81,115.84 in respect of the medicines purchased by him and other expenses incurred towards other hospital charges, due to the injuries suffered by him in the accident. The amount of the same which is rounded off to Rs.2,81,116/- hence, is awarded in favour of the petitioner towards treatment expenses.

PAIN & SUFFERINGS 12 The petitioner has suffered very serious injuries as is shown from his immediate MLC prepared at Holy Family Hospital after the accident, reflecting the nature of injuries to be dangerous. He has suffered fracture of shaft of left femur with base neck femur of left with fracture of left patella with fracture of clavicle left. The CLW right thigh muscle had been exposed and contaminated, tenderness besides having suffered multiple abrasions on right hand. As a result of the above injuries, he has remained hospitalized on ventilator support which must have caused him extreme trauma, pain and suffering which otherwise cannot be measured in the absence of any yard- stick.

13 A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned in view of the principles above and in view of the celebrated judgment of R.D.Hattangadi Versus Pest Control (India) (P) Ltd., (1995) 1 SCC 551, the observations of the above are reproduced herein below :

"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant; (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."

The judgment clearly recognize the trauma, pain and suffering of the injured person and accordingly an amount of Rs.50,000/- is awarded towards pain & sufferings.

DIET & CONVEYANCE 14 The petitioner has not filed on record any material to show the actual amount spent on account of diet, but considering the fact that the petitioner suffered various fractures in the accident leading to disability in respect of left lower limb, he is awarded Rs.10,000/- towards special diet, as prayed by him, as he would have needed rich protein diet having regard to the injuries undergone.

15 Though the petitioner has not appended on record the bill of expenses incurred by him on the conveyance, yet having regard to the fact that the petitioner suffered various fractures in the accident leading to disability in respect of left lower limb and has remained under long drawn treatment as stated above, it can be presumed that due to the above injuries, he would have paid numerous visits to the doctors in connection with the treatment as he would have been rendered immobile and would have needed special arrangements for his regular follow-ups from the concerned doctor. Accordingly, I impart amount of Rs.10,000/- to the petitioner on account of conveyance charges.

ATTENDANT'S CHARGES 16 As has been observed in foregoing paragraphs, the petitioner has not been able to manage his regular movements due to various fractures leading to disability in respect of left lower limb. In view of the grievousness of the injuries, his routine work must have been affected for which he would have needed the attendant. In my view, the attendant charges in lump-sum, amounting to Rs.25,000/- are sufficient to meet the requirements of the petitioner and are thus, awarded to the petitioner towards attendant's charges.

LOSS OF INCOME 17 As per the SARAL form filed on record, at the time of his meeting with the accident, the petitioner was commanding annual income of Rs.87,500/- in the year, 2001-2002. Thus, the monthly income of the petitioner is assessed as Rs.7291.66 rounded off to Rs.7292/- (87500 divided by 12).

18 Having regard to grievousness of the injuries suffered by the petitioner due to the accident which has lastly resulted in disability in respect of left lower limb of the petitioner, loss of income for five months is awarded to the petitioner. Accordingly, an amount of Rs.36,460/- (7292 X 5), is awarded to the petitioner towards loss of income.

DISABILITY 19 The petitioner has filed on record the disability certificate, Ex.PW1/D, issued by Pt.Madan Mohan Malviya Hospital, reflecting that the nature of disability is permanent and there is no likelihood of its improving. The disability of 60% is reported to be non-progressive. It be observed that the petitioner has reflected in his statement made on oath that he was running the shop of spare parts. Having regard to the nature of his job, it can be presumed that his job would not have entailed extensive movement except of sitting for longer duration, his movement would have been required only at the time of making purchases in the market in bulk and for keeping the stock. For the above reasons and in the absence of any other evidence being produced on record, the disability of the petitioner towards whole body is adjudicated to be 30% and in view of the SARAL form filed for the year, 2001-2002, the monthly income of the petitioner is adjudged @ Rs.7291.66 rounded off to Rs. 7292/- (87500 divided by 12). The income-tax return Ex.PW1/C, for the year 2010-2011 shows the amount of increase in the income. It reflects that the Suit No.312/2011/2003 (Vijay Pal Vs. Harpreet Singh etc.) Page 9 of 15 petitioner has been commanding annual income of Rs.1,73,942/- showing about 100% increase in his income from the year, 2001-2002. The above shows that he has future prospects for enhancing the business. It is to be presumed that absence of his having suffered the disability, he must have been able to seek a better business and enhance his income further. In view of the law laid down by Hon'ble Supreme Court in case titled, Dalvinder Kaur @ Devinder Versus United India Insurance Company Ltd., decided on 25.3.2010 in FAO No.524/2003 and Delhi Transport Corporation Versus Deep Kanta and others, 2002 (3) TAC 743, future prospects @ 50% are imparted in favour of the petitioner. In such circumstances, following formula is adopted to assess the income of the petitioner :

1,73,942 X 50% = 86,971- 1,73,942 + 86,971 = 2,60,913/-

The disability of the petitioner is assessed as 30% towards whole body. In view of the above, being guided by the judgment of Raj Kumar Versus Ajay Kumar (supra), the disability of the petitioner is calculated as per formula prescribed as below :

30% of Rs.2,60,913/- = Rs.78,273.90 rounded off to Rs.78,274/-

20 The income-tax return filed on record by the petitioner reflects his date of birth as 15.4.1970, according to which he was aged about 32 years at the time of his meeting with the accident on 7.9.2002. Thus, the multiplier of '16' for the persons falling in the age group of 31-35 is taken and the above amount is calculated with the multiplier of 16, having regard to the expectancy of life in view of schedule appended with the Act. The petitioner is thus, awarded compensation of Rs.78,274 X 16 = Rs.12,52,384/-.

LOSS OF AMENITIES 21 The petitioner was self-employed and was running the shop of spare parts and due to the accident leading to disability in respect of left lower limb, he is expected to have undergone loss of appearance, self-esteem and confidence to carry himself in front of public at large apart from having undergone general inconvenience daily in performing routine functions.

Accordingly, in view of the judgment in case titled, Baby Radhika Gupta and Others Versus Oriental Insurance Company Ltd. and others, decided on 24.11.2009, in Civil Appeal No.7736 of 2009, the petitioner is awarded lump-sum compensation of Rs.25,000/- under the above head.

The total compensation is assessed as under :-

                      Treatment Expenses                      Rs. 2,81,116/-
                      Pain & Sufferings                       Rs.   50,000/-
                      Diet & Conveyance                       Rs.   20,000/-
                      Attendant's Charges                     Rs.   25,000/-
                      Loss of Income                          Rs.   36,460/-
                      Disability                              Rs.12,52,384/-
                      Loss of Amenities                       Rs.   25,000/-
                      Total                                   Rs.16,89,960/-

Hence, the petitioner is awarded a total amount of Rs. 16,89,960/-.

RELIEF 22 I hereby award an amount of Rs.16,89,960/- as compensation with interest @ 9% per annum including interim award, if any, from the date Suit No.312/2011/2003 (Vijay Pal Vs. Harpreet Singh etc.) Page 11 of 15 of filing of the present petition, i.e., 5.4.2003 till 27.3.2006 and from 1.4.2010 till the date of realisation of the amount, in favour of the petitioner and against the respondents. The driver, R-1 is the principal tort feasor whereas R-2 and R-3, being the insurance company, are the joint tort feasors, and are vicariously liable for the acts of the driver, R-1. 23 The insurance company has raised the defence that it is not liable to make any payment to the petitioner since the vehicle was being driven without any license. The above fact has been confirmed by the IO, PW3 HC Bhaiya Ram, who has charge-sheeted the driver under Section 3/181 MV Act after having conducted the investigation and has reported that the vehicle was being driven by R-1, Harpreet Singh by flouting the provisions of law with intention to cheat having forged DL which was actually issued in the name of one Sanjay Singh. In his efforts of doing the above, he had been apprehended and apart from the provisions of Section 3/181 MV Act being imposed against him, his prosecution has been sought under Section 419/420/468 and 471 IPC. The certified copy of the charge-sheet also confirms the above fact. The driver despite being served, has not caused appearance and has offered no resistance. In the circumstances and in view of the judgment in case titled, National Insurance Company Versus Swaran Singh, 2004 ACJ 1 SC, the insurance company is to be absolved from the liability. Hence, the respondents, R-1 and R-2 are directed to discharge the liability of the award amount within a period of 30 days from today along with interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay.

24 In the judgment of Union of India and others Versus Nansari and others, MACA 682/2005, decided on 13.1.2010, which has been Suit No.312/2011/2003 (Vijay Pal Vs. Harpreet Singh etc.) Page 12 of 15 affirmed by the Hon'ble Supreme Court in order dated 17.12.2009 in SLP (Civil) No.11801-11804/2005, the Hon'ble High Court have given directions for the protection of the award amount. In view of the aforesaid judgment, it is directed that out of the above awarded amount of Rs. 16,89,960/- (Rupees sixteen lac eighty nine thousand nine hundred and six only), a sum of Rs.2,89,960/- (Rupees two lac eighty nine thousand nine hundred and six only) be released forthwith to the petitioner. 25 The remaining amount of Rs.14,00,000/- (Rupees fourteen lac only), awarded in favour of the petitioner, Vijay Pal, be kept in the State Bank of India, Saket Branch by way of FDR for a period of ten years in his account. The petitioner may approach Shri H.S.Rawat, Nodal Officer (Mobile No. 09717044322), State Bank of India, or Shri Manish Mishra, Branch Manager (Mobile No.9711001555) Saket Branch, for opening of the account after receiving the copy of the award, whereafter the amount of the petitioner shall be released to him as under :

26 10% of the FDR amount be released to him on the expiry of first year, along with proportionate interest.

27 10% of the FDR amount be released to him on the expiry of second year, along with proportionate interest.

28 10% of the FDR amount be released to him on the expiry of third year, along with proportionate interest.

29 10% of the FDR amount be released to him on the expiry of fourth year, along with proportionate interest.

30 10% of the FDR amount be released to him on the expiry of fifth year, along with proportionate interest.

31 10% of the FDR amount be released to him on the expiry of sixth year, along with proportionate interest.

32 10% of the FDR amount be released to him on the expiry of seventh year, along with proportionate interest.

33 10% of the FDR amount be released to him on the expiry of eighth year, along with proportionate interest.

34 10% of the FDR amount be released to him on the expiry of ninth year, along with proportionate interest.

35 The remaining 10% of the FDR amount be released to the petitioner in the tenth year, along with proportionate interest. The original FDR be kept with the bank which shall issue a photo identity card to the petitioner to ascertain his identity. The copy of the award shall be given to the parties. 36 It is directed that the FDR so deposited with the bank, be renewed automatically and the interest thereupon shall be paid monthly, which shall be credited automatically in the savings account of the petitioner. The original FDR be detained by the bank in safe custody. However, the original passbook shall be issued and given to the petitioner along with the photocopy of the FDR. The bank is directed to hand over the original FDR on afflux of time and shall issue the photo identity card to the petitioner to facilitate the withdrawal after due verification. It is further directed that no cheque book shall be issued to the petitioner without the permission of this court.

37 It is also directed that the respondents shall make an endorsement of the title of the case, suit number, name of the parties and other relevant details while depositing the cheque in the bank. The compliance be made by all concerned.

38 Copy of the order shall be kept for receiving the compliance. File be consigned to the record room after completion of necessary formalities.

Announced in open Court                                         ( NIRJA BHATIA )
Dated : 3.5.2012                                               PO : MACT-02, (SE)
                                                              Saket Courts, New Delhi




Suit No.312/2011/2003 (Vijay Pal   Vs. Harpreet Singh etc.)                Page 15 of 15