Delhi District Court
Mact No.114/06 Mehul Verma vs . Harbans Lal & Ors. on 18 March, 2013
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MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
IN THE COURT OF SH. B. S. CHUMBAK, PO MACT EAST
DISTRICT : DLEHI
Petition No. 114/06
Date of filing of the petition 18/02/06
Date of assignment to this court 18/02/06
Date on which judgment was reserved 04/03/13
Date of award 18/03/13
IN THE MATTER OF:
Ms. Mehul Verma
D/o Sh. S.P. Verma
R/o 161, Krishma Apartment ,
27, I.P. Extension, New Delhi92 ....Petitioner
VERSUS
1. Harbans Lal s/o late Sh. Malik Ram
R/o WZJ, 76, Hari Nagar, Beri Wala Bagh,
New Delhi ...Owner
2. National Insurance Company Ltd
Through Manager, D.O. XI, Second Floor,
6/90, Padam Singh Road, Karol Bagh,
New Delhi ...Insurance Co.
3.Narinder Kumar S/o Sh. Hem Raj
R/o C138, Hastsal Road,
J.J. Colony, Uttam Nagar, New Delhi59 ...Driver
....Respondents
A W A R D
1. Ms. Mehul Verma d/o Sh. S.P. Verma R/o 161, Krishma Apartment ,27, I.P. Extension New Delhi (hereinafter referred to as petitioner) filed the present 2 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
petition u/s 166 & section 140 of the Motor Vehicles Act 1988 (hereinafter referred to as Act of 1988) against Harbans Lal s/o late Sh. Malik Ram R/o WZJ, 76 Hari Nagar, Beri Wala Bagh, New Delhi, owner (hereinafter referred to as respondent no.1), National Insurance Company Ltd Through Manager, D.O. XI, Second Floor, 6/90, Padam Singh Road, Karol Bagh, New Delhi, insurer (hereinafter referred to as respondent no.2) and Narinder Kumar S/o Sh. Hem Raj R/o C138, Hastsal Road, J.J. Colony, Uttam Nagar, New Delhi Driver (hereinafter referred to as respondent no.3) for seeking compensation in lieu of injuries received due to said accident.
2. Petitioner/injured was about 24 years old at the time of accident working as Trainee Packaging in the office of Delhi Doordarshan and was earning Rs. 10,000/ per month.
3. Brief facts arising out of this case are that on 24.08.2004 at about 10 p.m petitioner was returning to her residence from her office in a bus bearing registration no. DL1PB4678 which was being driven by its driver in a rash and negligent manner. When the offending bus stopped at Hasanpur Bus stand near Patparganj Depot and was to get down from the front gate of bus and when her one foot was on the foot board and other was on the road in the meantime R3 driver of the offending bus started driving the bus in rash and negligent manner without ascertaining the fact that petitioner was yet to get 3 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
down from the bus. Due to rash and negligent act of R3 petitioner fell down on the road and sustained following multiple grievous injuries:
i) Fracture mandible, Maxila upper right side, compound fracture over chin
ii) Six teeth of right upper jaws also dislocated. She also received other injuries i.e on lips and nose etc.
4. Petitioner was taken to Apollo Hospital and keeping in view the seriousness of the injuries she was shifted to Batra hospital and kept in ICU for two days and thereafter she was shifted to General Ward. When she could not get the satisfactory treatment from Batra Hospital she started taking treatment from Jaslok Hospital Bombay. She had to undergo 810 surgical operations including plastic surgery on her nose, lips and chin for removing the disfigurement of her face. She also took treatment from Sir Ganga Ram Hospital from 29.10.2004 till 15.11.2004. She also received treatment from Dr. R.K. Bali B.D.S. Dental Surgeon, Karol Bagh, from AIIMS and also from Jaslok hospital, Mumbai from 4.11.2004 till the date of filing of the petition. She further averred that loss of six teeth made her incapable of taking solid food, permanent scar on her face, spoiled her facial beauty which was prior to the accident, therefore, cosmetic surgery was also carried out on her face. She further averred that chances for her marriage have been impaired and she also suffered depression as a result of multiple injuries on her body. She spent 4 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
Rs.10 lacs on her treatment. She also suffered mental pain and agony and also spent on better diet and conveyance. She also incurred expenses towards attendant, required to accompany her for transportation to the hospital.
5. She further averred that R1 being the owner, R2 being the insurer and R3 being the driver of the offending vehicle are jointly and severally liable to make the payment of compensation and claimed Rs.20 lacs towards all the heads.
6. Notice of the petition was served upon all the respondents. Pursuant to service of notice R1 and R2 filed their written statements separately controverting therein all the allegations as alleged in the petition and also took many preliminary objections such as no accident has been caused by using of vehicle bearing no.DL1PB4678 even the said vehicle was not present at the spot on the date, time and place of accident, therefore, no cause of action accrued against R1 and R2 and requested for dismissal of the petition. It is further alleged that at the time of accident vehicle was lying parked at Hari Nagar Clock Tower since 8:20 p.m after finishing duty hours. Someone has given false information to the police and R3 has been falsely investigated in this case however, in reply to para no. 17 it is submitted that vehicle bearing no. DL1PB4678 was duly insured with R2, therefore, liability to pay the compensation, if any is of the insurer and not of R1 and R3 and requested 5 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
for dismissal of the petition.
7. R2 also filed written statement controverting therein all the allegations as alleged in the petition and also took many preliminary objections such as petition does not disclose any cause of action and in case it is found that driver of the alleged offending vehicle was not holding a legal, valid and effective driving license the answering respondent shall not be liable to pay any compensation to the petitioner. It is further averred that in case R1 owner of the offending vehicle failed to produce a route permit, fitness certificate at the time of alleged accident answering respondent shall not be held liable to pay any compensation. It is further alleged that petitioner herself was responsible for the said accident as she was trying to get down from a moving bus and in the process she fell down from the bus and received injuries, therefore, answering respondent is not liable to make payment of compensation however, in reply to para no. 17 it is admitted that bus no. DL 1PB4678 was insured in the name of R1 Harbans Lal vide policy no.
360500/31/03/6300002799 and was valid from 25.9.2003 to 24.9.2004 subject to the terms and conditions of the policy of insurance policy and requested for dismissal of the petition.
8. On the basis of pleadings from both the parties following issues were framed by the then Ld. PO MACT vide order dated 16.05.2006:
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MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
i) Whether petitioner received injuries due to
rash and negligent driving of bus no. DL 1PB 4678?
ii) Whether petitioner is entitled for any
compensation? If so, of what amount and from
whom?
iii) Relief
9. After framing of issues case was fixed for petitioner's evidence.
10. Sh. Devi Nand Sharma, Dealing Clerk, Indraprastha Apollo Hospital appeared as PW1 and produced the MLC register pertaining to MLC no.
289/04 regarding petitioner Ms. Mehul Verma d/o Captain S.P. Verma, photocopy of the same is Ex. PW1/A.
11. During his cross examination he admitted that he had no personal knowledge about the MLC and is deposing only on the basis of record available in the hospital.
12. Sh. Madan Lal, Assistant Technologist, Medical Records, Batra Hospital appeared as PW2 and produced the complete admission and discharge record in respect of petitioner Mehul Verma. He further deposed that she was admitted on 25.8.2004 and discharged on 3.9.2004 vide admission no. 2467996. The complete record including computerized medical bills amounting to Rs.1,23,016/ dated 3.9.2004 collectively Ex. PW2/A consisting of 89 pages. He further deposed that Mehul Verma was again 7 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
admitted in their hospital on 30.9.2004, the complete admission discharge including medical bills amounting to Rs.4551/ are collectively Ex. PW2/B consisting of 10 pages is also produced.
13. During his cross examination he admitted that he cannot recognize the signature of doctor who had signed the medical bills other than the discharge summary. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
14. Sh. Bhogendra Jha, Accountant from Batra Hospital appeared as PW3 and produced the computerized medical expenses bills paid by the patient to their hospital which are Ex. PW3/1 to Ex. PW3/29.
15. During his cross examination he admitted that he does not have any personal knowledge about the medical bills Ex. PW3/1 to Ex. PW3/29. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
16. Petitioner herself appeared as PW4 and filed her affidavit Ex. PW4/A. She also produced three discharge summaries Ex. PW4/1 to Ex. PW4/3. Her photographs are Ex. PW4/4 to Ex. PW4/6. Copy of complaint given to SHO is Ex. PW4/7 and postal receipt is Ex. PW4/8. She further deposed that medical 8 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
bills placed on record and the bills regarding conveyance charges which are Ex. PW4/9 to Ex. PW4/27, photocopy of her identity card is Ex. PW4/28, photocopy of documents showing her educational qualifications are Ex. PW4/29 to Ex. PW4/33, photocopy of her appointment letter is Ex. PW4/34, photocopy of graduation certificate is Ex. PW4/35. She also remained admitted from 27.1.2007 to 28.1.2007 in Indraprashta Apollo Hospital for carrying out plastic surgery on her upper lip and scar on the chin. The discharge summary is Ex. PW4/36 and original medical bills issued by Apollo hospital are Ex. PW4/37 to Ex. PW4/47. In her affidavit she also stated all the facts with regard to occurrence of an accident due to rash and negligent driving of the offending vehicle bearing no. DL 1PB 4678.
17. During her cross examination by counsel for insurance company she admitted that number of the offending vehicle was noted down by her and denied the suggestion that accident had taken place to her own negligence. She also denied the suggestion that she herself was trying to get down from the moving bus. She also denied the suggestion that number of the offending vehicle was noted down by one Satender Kumar Thakur and not by her. She also admitted that her mother is employed in NTPC as Sr. Manager. She further stated that she cannot tell whether some of the medical bills were paid by the employer's of her mother. She also denied the suggestion that maximum medical bills issued by Batra Hospital, Apollo Hospital, Jaslok 9 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
Hospital and Sir Ganga Ram Hospital and other hospitals have already been paid by NTPC and i.e why the name of NTPC employer of her mother is written on all the bills. She also admitted that no disability certificate has been issued to her. She admitted that she had not filed any documentary proof to show that she took leave due to injuries suffered by her and she also failed to place on record any documentary evidence regarding loss of her earning suffered by her. She further stated that at present she is working with Zee Business Chanel and has been getting salary of Rs.17,000/ per month. She also denied the suggestion that her treatment has been done under credit company patient NTPC under employee No. 0049. Rest of her testimony is reiterated by her as submitted by her during examination in chief.
18. PW5 Dr. Jitender Nath Khanna from Jaslok hospital appeared as PW5 who had produced the medical treatment record of injured Ms. Mehul Verma wherein it is mentioned that petitioner was got admitted on 12.12.2004 and she was discharged on 20.12.2004. She was admitted with alleged history of road side accident. The report consisting of 61 pages is collectively Ex. PW5/A. He further deposed that she was having grievous multiple injuries on her face including nose, jaw and lip etc. He further deposed that her jaw were not able to touch each other, therefore she was unable to chew each and every eatables. She could only drink. Her face was deformed, therefore, surgery of her upper and lower jaw was conducted. He further deposed that 10 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
she suffered fracture on maxilla (upper jaw) and mandible bone (lower jaw) and nasal bone. He further deposed that she was again admitted in their hospital on 9.1.05 and was discharged on 14.1.05. Her treatment record consisting of 57 pages is collectively Ex. PW5/B. He further deposed that implants against the broken four teeth were put on upper jaw. Dr. Narender Pandya conducted the plastic surgery for her upper lip.
19. He further deposed that petitioner was third time admitted in their hospital on 11.4.2005 and was discharged on 22.4.2005 and deformity was rectified after conducting surgery. Her treatment record consisting of 101 pages is Ex. PW5/C. He further deposed that petitioner was lastly admitted in their hospital on 20.12.2005 and discharged on 28.12.2005 and during the said period surgical operation for rectifying the deformity of nose and chin scars was conducted by way of plastic surgery and her treatment consisting of 51 pages is collectively Ex. PW5/D. He also identified all the medical bills placed on record which are Ex. PW4/15 to Ex. PW4/21. He also deposed that cost of implantation of one tooth was Rs.25,000/ as on the date of his examination. He specifically stated that petitioner had been rehabilitated after treatment and injury was not resulted in any permanent disability.
20. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
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MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
21. Dr. Vipul Sood, Plastic Surgeon, Batra Hospital appeared as PW6 and corroborated regarding treatment record of petitioner. He specifically deposed that petitioner was admitted in Batra hospital on 24.8.2004 with alleged history of road side accident. She sustained multiple fracture on her face including maxilla and mandible. She also received dirty lacerations over lip and chin. She had lost 6 to 7 upper teeth. She was operated on 25.8.2004, secondly she was operated on 26.8.2004. She was discharged on 3.10.2004. Her treatment consisting of 89 pages and is already Ex. PW2/A and Ex.PW2/B. He specifically stated that if the molar teeth of the petitioner are intact then the patient can take solid food.
22. During his cross examination he deposed that patient had been under his treatment in Batra hospital, therefore, admission and discharge summary bears his signature. He did not provide any treatment to the patient regarding loss of teeth or curing the deformity of the face of the petitioner/injured.
23. Sh. S.P. Verma father of petitioner appeared as PW7 and filed his affidavit stating therein all the facts which are stated by the petitioner in her affidavit. He also relied upon the documents such as the copy of offer letter alongwith salary certificate of the petitioner is Ex. PW7/1. He also deposed that her daughter had joined the course of MBA from Leicester University U.K. 12 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
The letter of offer, acceptance letter and deposit receipt of fees consisting of seven pages alongwith visa, passport is Ex. PW7/2. Ex. PW7/3 is the bank receipts of the amount given by him to her daughter for continuing the course.
24. During his cross examination he admitted that his wife is working with NTPC and he is not aware whether medical bills incurred by him have been reimbursed by his wife or not. He also admitted that he had not applied to his department to reimburse the medical expenses. He specifically stated that he cannot admit or deny the suggestion that the amount of expenditure of treatment of his daughter had been reimbursed from the department of his wife for the reason of his not being aware of the same. He also admitted that after two three months of the accident her daughter started picking up the things gradually in routine. He further admitted that she was doing a job in year 2009 but she resigned from that job because of medical problems. He further deposed that she again pick up a job with Ticker Plant which she left after joining the course of MBA in UK. He further deposed that last pay package of his daughter was around 8.5 lacs per annum. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
25. ASI Rajinder Parshad appeared as PW8 and deposed that he is the IO of the case registered vide FIR no. 441/04 u/s 279/338 IPC at PS Mandawali. He also produced the untrace report u/s 173 Cr.P.C submitted by 13 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
him in this case. Site plan of the case was prepared by him at the instance of a lady victim and said site plan was prepared after the victim was discharged from the hospital and also on recording her statement u/s 161 Cr.P.C. He specifically deposed that during the course of investigation one complaint was submitted to him by the injured disclosing therein the name of eye witness and details of the vehicle. He recorded the statement of Satender Thakur (eye witness) u/s 161 Cr.P.C who had also handed over him a self written statement specifically stating therein that he is not aware about the said accident. He also stated that neither he was present at the place of accident nor he had seen any vehicle involving in the accident.
26. He further deposed that on 05.05.2005 supplementary statement of injured Mehul Verma was recorded. He also served a notice u/s 133 of MV Act upon owner of the vehicle. During the course of investigation it was revealed that impugned bus was being plied at route no. 73 and later on this bus was sold by previous owner Harbans Lal to new owner Sh. Gurvinder Singh and thereafter it started plying at route no. 740.
27. Pursuant to the further investigation he issued another notices u/s 133 of MV Act upon both the owners. He also made inquiries about the name of the driver and when no incriminating fact was investigated the untrace report was filed by him. He also admitted that time table placed on record was 14 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
of route no. 73 which was from 2001 to 2008. He failed to explain whether the time table was got verified by him or not but he denied the suggestion that in collusion with the owner of the offending bus he had not fairly investigated or that tried to find out the name of the driver. He also admitted that the bus was not seized by him.
28. During his cross examination by R1 and R2 he admitted that the registration number of offending bus was neither disclosed by the injured nor by any eye witness. A written complaint was given to him by petitioner on 31.1.2005 and in the said complaint she disclosed the number of bus involved in the accident. He also admitted that he collected the MLC of injured Mehul Verma but she did not produce any bus ticket as a mark of her travelling in the bus. Thereafter petitioner's evidence was closed and case was fixed for respondent's evidence.
29. Sh. Harbans Lal appeared as RW1 and filed his affidavit in evidence which is Ex. DW1/A. In his affidavit he deposed that he was the registered owner of the vehicle bearing no. DL1PB4678 on 24.8.2004 (i.e the date of accident). He further deposed that on 24.8.2004 at about 8:20 p.m the aforesaid vehicle was lying parked at Hari Nagar Clock Tower since 8:20 pm and alleged accident had taken place at about 10 p.m, therefore, impugned vehicle was falsely implicated in this case. He also relied upon documents 15 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
Mark A to D. Mark A is the copy of driving licence of the driver, Mark B is the route permit issued by STA, Mark C is time table issued by DTC Scindia House, New Delhi and Mark D is the copy of cover note of insurance.
30. During his cross examination by counsel for petitioner he admitted that the impugned bus was plying at route no. 73 i.e from Hari Nagar Clock Tower to Anand Vihar. He also admitted that the impugned vehicle was sold by him before the date of accident. He received the information about the accident after about one and a half year of the accident. He further deposed that in reply to the notice u/s 133 MV Act he informed the police that at the time of accident his vehicle was lying stationed at Hari Nagar Clock Tower. He further deposed that the impugned bus used to take four trips in a day at route no. 73 and last trip was to be take about 8 to 8:30 p.m. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
31. During his cross examination by counsel for insurance company he also deposed that after the end of daily trip the driver of the bus used to hand over the keys and all the documents regarding the impugned bus to him. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
32. ASI Rajender Prasad appeared as R2W1 and deposed that he is the 16 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
IO of this case, after registration of the FIR the investigation of this case was assigned to him. No registration number of the offending vehicle was disclosed in the FIR, however, during the course of investigation he also recorded the statement of injured/petitioner and in her statement she also not disclosed the registration number of the offending vehicle. Statement of injured is Ex. R2W1/1 and supplementary statement of injured is Ex. R2W1/2.
33. During the course of further investigation a complaint dated 25.1.2005 received on 31.1.2005 was assigned to him and in the said complaint the name of an eye witness was disclosed as Satinder Thakur s/o Suraj Nandan Thakur r/o 42, Chot Pur Chajarsi. On receipt of said complaint he also interrogated the above named eye witness and his statement u/s 161 Cr.P.C was also recorded by him. The alleged eye witness also gave in writing in his own hand that he had not seen the accident and was not aware of any fact about it . His statement u/s 161 Cr.P.C is Ex. R2W1/3 and his hand written statement is Ex.R2W1/4. In the said complaint the registration number of the offending vehicle was disclosed as DL1PB4678. He also investigated the matter, the driver and owner of the alleged offending vehicle were interrogated wherein it was revealed that at the time of accident the possibility of presence of said vehicle at the place of accident had been totally ruled out however it is brought on record that at the time of accident the vehicle was already parked at Hari Nagar and time table showing the movement of the vehicle on the day 17 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
of accident is also placed on record, same is Ex.R2W1/5 and thereafter on the basis of all the requisite investigations he filed the untrace report same is collectively Ex. R2W1/6,consisting of eight pages (original seen and returned). Complaint dated 25.1.2005 received on 31.1.2005 is Ex. R2W1/7.
34. During his cross examination by counsel for petitioner he deposed that after the accident he visited the hospital to record the statement of injured but she was unconscious. He prepared the site plan at the instance of injured/victim. He served a notice u/s 133 to both the owners. He admitted that he had not verified the fact from the concerned authority that the alleged offending vehicle was being plied on route no. 73 and was only plying on route no. 740. He interrogated the accused/driver of the alleged offending vehicle and recorded the facts in his case diary but no their separate statement was recorded. He further admitted that he had not got mechanically inspected the vehicle. He further admitted that neither the TIP of the accused/driver of offending vehicle was conducted nor he was shown to the injured during the course of investigation despite of the fact that at the initial stage of recording the statement of the injured she stated that she can identify the driver of the offending vehicle if shown to her. He seized the copy of the permit of the alleged offending vehicle. He denied the suggestion that due to the collusion with the owner of the offending vehicle and driver he had filed the untrace report.
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35. Thereafter respondent's evidence was closed and case was fixed for final arguments.
36. Arguments on behalf of counsel for petitioner as well as on behalf of respondents heard. On the basis of arguments advanced and the evidence adduced by both the parties my findings on the issues are as follows :
ISSUE 1
i) Whether petitioner received injuries due to rash and negligent driving of bus no. DL 1PB 4678?
37. On this issue, the statement of injured (PW4) and Dr. S.P. Verma, father of injured (PW7) are very much relevant in support of the contention that accident had taken place due to rash and negligent driving of vehicle bearing no. DL1PB4678. The statement of PW2 to PW6 are very much relevant to prove that the injured received injuries in a road side accident and incurred expenses as per medical bills and treatment record filed by her during trial of this case. On the contrary statement of PW8 ASI Rajender Prasad who has also been examined as R2W1 being the IO of this case is relevant to the extent that after investigation the case file was consigned as untrace. To resolve the issue evolved in this case I carefully perused the statement of the witnesses and the pleadings from both the sides wherein it transpires that R2 Insurance company in their written statement alleged that petitioner herself was responsible for the said accident as she was trying to get down from a 19 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
moving bus and in the process she fell down from the bus and received injuries. Testimony of PW4 is further find support when a suggestion was put by counsel for R2 during cross examination of PW4 and she denied the suggestion that the accident took place due to his own negligence as she was trying to get down from the moving bus. In view of the aforesaid evidence which has come on record coupled with the fact that IO neither conducted the TIP of the accused nor gave opportunity to the complainant to identify the impugned bus as well as driver of the said bus. The bus was neither seized nor it was got mechanically inspected, therefore, without conducting the requisite investigation it appears that IO has filed the untrace report only on the basis of statement of owner of the bus. In such circumstances, I am of the considered view that no cogent evidence to prove the fact that the impugned bus was lying parked at Hari Nagar Clock Tower or was not present at the place of accident.
38. On the contrary no cogent evidence to prove the fact that impugned bus was not involved in the said accident is also brought on record by the respondents except the fact that IO filed the untrace report after completion of investigation but on the face of investigation itself it is established that IO failed to conduct the proper investigation in this case to ascertain whether the impugned vehicle was involved in this case or not. In such circumstances there is no option left with the court only to consider the testimony of PW4, 20 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
PW7 to decide the issue whether the accident has taken place due to rash and negligent driving of the bus bearing no.DL1PB4678 which was being driven by R3. Accordingly, I decide this issue in favour of the petitioner and against the respondents.
ISSUE NO.2
ii) Whether petitioner is entitled for any
compensation? If so, of what amount and from
whom?
39. As regard the quantum of compensation the petitioner has to be compensated for the actual expenses incurred by him and for the loss of income of his being rendered permanently disabled. Besides nonpecuniary losses are to be assessed on the basis of facts proved.
40. In the present case admittedly the injury is not resulted in any sort of permanent disability, however, on perusal of the medical treatment record pursuant to the MLC bearing no. 289/04 wherein it is mentioned that she was taken to Apollo Hospital with "alleged H/O fall from bus near Parparganj Gazipur Bus Depot" and nature of injuries was also opined as grievous. In such circumstances the petitioner is to be compensated towards actual medical expenses incurred by her and on this issue the medical bills Ex. PW2/A, Ex. PW3/1, Ex.PW2/B, Ex. PW3/24 to 29 and PW4/9 to 47 amounting to Rs.3,93,069/ are brought on record, therefore, I grant Rs.3,93,069/ 21 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
towards head of medical expenses.
41. Since it is the case of grievous injury without any permanent disability, therefore, the compensation in such type of cases can only be assessed on the basis of provisions of Clause (4) of Second Schedule appended with section 163 A of the Motor Vehicle Act which provided as under: Clause 4 which reads thus: General Damages in case of Injuries and Disabilities:
1. Pain Sufferings
(a) Grievous injuries Rs. 5000/
(b) Nongrievous injuries Rs. 1000/
2. Medical Expenses - actual expenses incurred supported by bills/vouchers but not exceeding as one time payment Rs15000/
42. For assessing the compensation in the present case I also placed my reliance on the observations given by their lordships in the decided case cited as "Sarla Verma Vs. Delhi Transport Corporation 2009 ACJ 1298".
43. On following the provisions of Clause 5 and the observations given in the Sarla Verma's case (Supra) and also taking into consideration the nature of injuries and the time taken in receiving the treatment and healing the injuries I carefully perused the treatment record w.e.f the date of accident and 22 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
the last bill dated 28.1.2007 wherein it transpires that the petitioner took about two and a half years in healing the injuries and resuming her health but by virtue of Schedule Second clause (5) loss of income cannot be granted exceeding 52 weeks.
44. No cogent evidence regarding the monthly income of the injured at the time of accident is brought on record except the offer letter Ex. PW4/34 and another letter issued by Harkesh Gupta Director Broadcast Engineering Consultant India Ltd. Ex.PW4/33 but Ld. counsel for insurance company submitted that both these document cannot be admitted in evidence as these are not proved by way of primary evidence. These documents are proved only by the petitioner for which she is not competent. It is further pleaded that to assess the income of the petitioner at the time of accident the help of Minimum Wages Chart considering her educational qualifications are to be considered.
45. In view of rival contention of Ld. counsel for both the parties and also going through the evidence adduced by the petitioner I am of the considered view that no cogent evidence with regard to income of the petitioner is proved therefore, her income is to be assessed on the basis of Minimum Wages Chart prevalent on the date of accident. The petitioner is a graduate, therefore, her income is to be taken as Rs.3623/ per month, therefore, she has become entitled for 52 weeks (one year) salary under this head on the basis of 23 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
Minimum Wages Chart prevalent on the day of accident which comes to Rs. 3623/ x 12 = Rs.43,476/.
46. Since no cogent evidence with regard to incurring expenses towards better diet and attendant is brought on record but keeping in view the nature of injuries and the time taken in receiving treatment I am of the considered view that petitioner has also become entitled for Rs.30,000/ towards each head.
47. The petitioner filed the bills to the tune of Rs.15,450/ and Rs. 16,500/ towards conveyance charges. Accordingly, I assess Rs.31,950/ towards the head conveyance charges.
48. However, the pain and suffering of the petitioner in the present case cannot be measured in terms of money as the suffering is going to be with him for long time, therefore, it is only for the purpose of this claim that a sum of Rs. 50,000/ on the minimum is being assessed.
LIABILITY
49. On this issue Ld. counsel on behalf of petitioner submitted that the offending vehicle was admittedly insured with R2. R1 was the owner of the offending vehicle and R3 was the driver of the offending vehicle who was 24 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
having valid driving licence at the time of accident. In such circumstances there is no reason to impose any sought of liability upon R1 and R3 however, R2 had not filed any contrary evidence to the testimony of PW1 and in such circumstances I am of the considered view that R1, R2 and R3 all are jointly and severally liable to make the payment of compensation to the petitioner. However, R2 insurance company is liable to indemnify R1 and R3. This issue is decided accordingly.
50. After hearing arguments on behalf of Ld. counsel for both the parties, I carefully perused the evidence adduced by the petitioner and the observation given by their lordships in the aforesaid case, the petitioners have become entitled for the total amount of compensation towards all the heads as follows: Sl.No. On Account of Amount (Rs.) 1 Towards medical bills Rs. 3,93,069/ 2 Towards mental pain & agony Rs. 50,000/ 3 Towards 52 weeks salary Rs.43,476/ 4 Towards better diet Rs. 30,000/ 5 Towards attendant Rs. 30,000/ 6 Towards conveyance charges Rs. 31,950/ Total Rs.5,78,495/ 25 MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
51. I accordingly, grant a compensation to the tune of Rs. 5,78,495/ to the petitioner with interest @ 7.5% p.a. from the date of filing of the petition till its realization minus the amount of interim compensation, if any and interest excepted if any with the responsibility of insurance company to make the payment of the award.
52. The insurance company is hereby directed to deposit the award amount with upto date interest in Oriental Bank of Commerce branch, F21, Preet Vihar Main Vikas Marg Delhi1 branch in the name of the petitioner within 30 days from the date of award under the intimation to this court and bank would keep this amount in an account in the name of Judge MACT East and would wait for the further directions as to the disbursement of the same till the compliance is reported.
53. An attested copy of this award alongwith two recent photographs of the petitioners with court stamp be also sent to the bank for facilitating the compliance.
54. Put up for compliance on 18.04.2013.
Announced in the open court (B.S. CHUMBAK)
on 18/03/2013 PO MACT/EAST DISTT.
KKD/DELHI
26
MACT NO.114/06 MEHUL VERMA VS. HARBANS LAL & ORS.
MACT NO. 114/06
18.03.2013
Present: None.
Final arguments heard.
Final award to the tune of Rs. 5,78,495/ is passed in favour of the petitioner with interest @ 7.5% p.a. from the date of filing of the petition till its realization minus the amount of interim compensation, if any and interest excepted if any, with the responsibility of insurance company to make the payment of the award amount.
The insurance company is hereby directed to deposit the award amount with upto date interest in Oriental Bank of Commerce branch, F21, Preet Vihar Main Vikas Marg Delhi1 branch in the name of the petitioner within 30 days from the date of award under the intimation to this court and bank would keep this amount in an account in the name of Judge MACT East and would wait for the further directions as to the disbursement of the same till the compliance is reported. No order as to costs. An attested copy of this award along with two recent photographs of the petitioners with court stamp be also sent to the bank for facilitating the compliance.
Put up for compliance on 18/04/2013.
(B.S. CHUMBAK) PO MACT EAST DISTT/DELHI 18.03.2013