Delhi District Court
Sh.Shiv Poojan vs Sh.Mahendra Kumar on 30 January, 2014
1
IN THE COURT OF SH.HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.:199/13
DATE OF INSTITUTION: 6.5.2013
1. Sh.Shiv Poojan
S/o Sh. Hikayaat Ram
R/o Vill.Panda Tola
P.O.Dharampur Bhay Loria
P.S.Sathi, Distt.Paschimi
Champaran(Bihar). .............. Petitioner.
Versus
1. Sh.Mahendra Kumar
S/o Sh. Teja Ram
R/o Vill.Binthwaliay, Teh.Parvatsar
P.S.Pilwa Baya Dagana
Distt.Nagore(Rajasthan).
2. Sh. Manoj Kumar
S/o Sh.Mange Ram
R/o 33B, Sadulajab
New Delhi110030.
3. The Oriental Insurance Co.Ltd.
N39,Bombay Life Building
Connaught Circus,Connaught Place
New Delhi110001. ................Respondent
Final Arguments heard on : 23.1.2014
Award reserved for : 30.1.2014
Date of Award : 30.1.2014
2
AWARD
1. Vide this judgment cum award I proceed to decide the petition filed U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 29.12.2012 at about 8pm the petitioner was working at H.No.L224A, Gali No.7B, Mahipalpur, New Delhi and the truck bearing no.HR38Q1749 came at the site to unload sand where the petitioner was working and the driver of the said truck started moving truck in reverse direction in rash and negligent manner and hit the wall as a result of which the wall fell down and the petitioner sustained injuries. The petitioner was taken to Indian Spinal Injuries Centre, Vasant Kunj, New Delhi and from there he was referred to J.P.N.Apex Trauma Centre, AIIMS, New Delhi.
3. It is stated that the petitioner was 19 years of age at the time of accident and he was working as labourer and was earning a sum of Rs. 8,000/ per month. It is stated that accident was caused due to rash and negligent driving of offending vehicle by respondent no.1, the said vehicle was owned by respondent no.2 and insured with respondent no.3 and as such all the respondents are jointly and severally liable to pay the compensation. It is prayed that Rs.Three lacs only alongwith interest be 3 awarded as compensation in favour of the petitioner and against the respondents.
4. Respondents no. 1 and 2 have filed joint written statement and have contested the petition. It is stated that the petition filed by the petitioner is bad in law for the mis joinder of the parties hence liable to be dismissed. It is stated that no accident took place from the offending vehicle and the wall collapsed on its own and the truck body had not touched the wall at any point of time. Other averments on merit are denied.
5. Respondent no. 3 has filed written statement and has contested the petition. It is stated that policy No.214600/31/2013/583 valid for the period from 12.6.2012 to midnight of 11.6.2013 for offending vehicle was issued in favour of respondent no.2. The averments made on merits are denied.
6. From the pleadings of parties following issues were framed on 9.9.2013:
1. Whether the petitioner sustained injuries in the accident on 29.12.2012 at about 8.00 PM at H.No.L224A,Gali No.7B, Mahipalpur, New Delhi caused by rash and negligent driving of vehicle No.HR38Q1749 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? OPP
3.Relief.
7. In support of his claim the petitioner examined himself as PW1. He 4 tendered his examination in chief by affidavit which is Ex.PW1/A. PW1 proved identity card issued by Gram panchayat Ex.PW1/1, discharge summary Ex.PW1/2(colly.), OPD cards Ex.PW1/3(colly.), medical bills Ex.PW1/4(colly.) and disability certificate Ex.PW1/5.
8. On the other hand respondent did not examined any witness and closed evidence.
9. I have heard the Ld. counsel for the parties and perused the record. My findings on specific issues are as under:
ISSUE NO. 1
10.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to rash and negligent driving by respondent no.1, the driver of offending vehicle no.HR38Q1749.
11. To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants 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 of criminal case in FIR no. 5 955 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."
12.The case of the petitioner is that on 29.12.2012 at about 8pm the petitioner was working at H.No.L224A, Gali No.7B, Mahipalpur, New Delhi and the truck bearing no.HR38Q1749 came at the site to unload sand where the petitioner was working and the driver of the said truck started moving the truck in reverse direction and hit a wall which fell on the petitioner as a result of which the petitioner sustained injuries. The petitioner was taken to Indian Spinal Injuries Centre, Vasant Kunj, New Delhi and from there he was referred to J.P.N.Apex Trauma Centre, AIIMS, New Delhi. It is stated that case vide FIR No.433/12, u/s 279/337 IPC was registered at PS Vasant Kunj(South). Petitioner appeared in the witness box as PW1 and adduced evidence by way of affidavit Ex.PW1/A. In the affidavit Ex.PW1/A the petitioner has reiterated the 6 manner of accident as stated in the claim petition. In para 2 of preliminary objection of written statement respondent no.1 and 2 have stated that no accident took place due to the offending vehicle and the wall collapsed on its own and the truck body had not touched the wall at any point of time. Although respondent no.1 and 2 have pleaded that the accident was not caused by the offending vehicle however respondent no.1 and 2 have preferred to remain exparte at the time of examination of petitioner/PW1 and have preferred not to cross examine PW1. In the cross examination by respondent no.3 PW1/petitioner stated that the offending vehicle had hit the wall which fell on him and the offending vehicle is a truck. The police has filed Accident Information Report (AIR) in this case and alongwith the AIR the police has filed copy of FIR, copy of site plan, copy of mechanical inspection report of offending vehicle. As per mechanical inspection report of offending vehicle it had fresh damages i.e. rear side ward frame slightly damaged. Along with the AIR the police has filed copy of charge sheet as per chargesheet respondent no.1 has been chargesheeted for the offences u/s 279/337/338 IPC. The respondents have not proved any other version of the accident. Thus in view of testimony of PW1 and documents on record the negligence of driver of offending vehicle has been prima facie proved. Issue no. 1 is accordingly decided in favour of petitioner and against respondents. 7 ISSUE NO. 2
13.As the negligence of driver of offending vehicle has been proved the petitioner is entitled to compensation.
COMPENSATION MEDICINES AND MEDICAL TREATMENT
14.The case of the petitioner is that after the accident on 29.12.2012 he was taken to Indian Spinal Injuries Centre, Vasant Kunj, New Delhi and from there he was referred to J.P.N.Apex Trauma Centre, AIIMS on 30.12.2012 and from there he was discharged on 28.1.2013. The petitioner has filed on record the MLC of Indian Spinal Injureis Centre, Vasant Kunj, New Delhi as per which he was taken to the said hospital on 29.12.2012 at 8.15pm and was referred to AIIMS due to non availability of neurosurgeon. The petitioner has filed on record the discharge summary of AIIMS Ex.PW1/2(colly.) as per which he was admitted in the said hospital on 30.12.2012 and discharged on 28.1.2013 and in the said discharge summary it is stated that petitioner was brought with alleged history of RTA on 30.12.2012 with history of loss of consciousness and the diagnosis is mentioned as right sided temporal EDH. It is stated that thereafter petitioner has undergone treatment in the said hospital and has acquired 65.5.% disability. The petitioner has filed medical bills Ex.PW1/4(colly.). The petitioner is awarded Rs.15,688/ for medical 8 bills.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
15.It has been held in Divisional Controller, K. S. R. T. C Vs 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 less 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) Lords 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 monitory assessment."
16.The case of the petitioner is that after the accident on 29.12.2012 he was taken to Indian Spinal Injuries Centre, Vasant Kunj, New Delhi and from there he was referred to J.P.N.Apex Trauma Centre, AIIMS on 30.12.2012 and from there he was discharged on 28.1.2013. The petitioner has filed on record the MLC of Indian Spinal Injureis Centre, Vasant Kunj, New Delhi as per which he was taken to the said hospital on 29.12.2012 at 8.15pm and was referred to AIIMS due to non availability of neurosurgeon. The petitioner has filed on record the discharge summary of AIIMS Ex.PW1/2(colly.) as per which he was admitted in the said 9 hospital on 30.12.2012 and discharged on 28.1.2013 and in the said discharge summary it is stated that petitioner was brought with alleged history of RTA on 30.12.2012 with history of loss of consciousness and the diagnosis is mentioned as right sided temporal EDH. The petitioner was 19 years of age at the time of accident and was working as labourer. Looking at the nature of injuries, period of hospitalization, extent of treatment and temporary nature of disability, petitioner is awarded Rs.40,000/(Rs. Forty Thousand only) for pain and suffering.
17.Notice can be taken of the fact that petitioner was hospitalized for a long period and has suffered temporary disability and on account of injuries he would not have been able to contribute towards family duties and may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.10,000/ for loss of amenities of life. CONVEYANCE AND SPECIAL DIET
18. In para 5 of affidavit Ex.PW1/A, the petitioner has stated that he spent Rs.Two Lacs on his treatment, special diet and conveyance. The contention of counsel for respondent no.3 is that the petitioner has not proved expenditure on conveyance. Although the petitioner has not proved that he incurred expenditure on conveyance however notice can be taken of the fact that after the accident the petitioner was taken to Indian Spinal Injuries Centre, Vasant Kunj, New Delhi and from there he 10 was referred to AIIMS and then he had to undergo subsequent treatment and for hospitalization and for subsequent treatment, the petitioner might have hired services of private ambulance/ conveyance as he may not have been able to drive on his own and might have incurred expenditure on the same. In the circumstances, petitioner is awarded a sum of Rs. 5000/ for conveyance.
19. In para 5 of affidavit Ex.PW1/A the petitioner has stated that he has spent Rs.Two Lacs on treatment, special diet and conveyance. The contention of counsel for respondent no.3 is that the petitioner has not proved that he was advised special diet and incurred expenditure on the same. In his affidavit Ex.PW1/A the petitioner has not specified any amount spent by him on special diet. However notice can be taken of the fact that the petitioner might have been advised diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances petitioner is awarded a sum of Rs.5000/ for special diet. LOSS OF INCOME
20. In the claim petition the petitioner has stated that at the time of accident he was 19 years of age and was working as labourer and was earning Rs.8,000/pm. However in para 4 of affidavit Ex.PW1/A the petitioner has stated that at the time of accident he was 20 years of age and working as Raj Mistri and was earning Rs.12000/pm.Petitioner/PW1 stated in cross 11 examination that he has not filed any document on record to prove that he was working as Raj Mistri and was earning Rs.12,000/ pm.Petitioner/PW1 stated that he has not filed any document of his income. The petitioner has not proved any document of income or educational qualification on record. In the absence of any document of income, occupation and educational qualification the income of petitioner shall be taken as per minimum wage of unskilled worker as on 1.10.2012 i.e. Rs.7254/pm. In para 4 of affidavit Ex.PW1/A the petitioner has stated that he could not perform his work for a period of six months. The contention of respondent no.3 is that the petitioner has not proved the he could not attend to his avocation for a period of six months. The petitioner has filed discharge summary of AIIMS Ex.PW1/2(colly.) as per which he was admitted in the said hospital from 30.12.2012 to 28.1.2013 and the petitioner has filed the OPD card of AIIMS Ex.PW1/3(colly.) as per which he had attended the said hospital on 14.2.2013 and 7.3.2013. Although the petitioner has not proved that he was advised bed rest for any specific period by the doctor however looking at the nature of injuries notice can be taken of the fact that the petitioner might not have been able to attend to his avocation for a period of four months. Accordingly, petitioner is entitled to Rs.7254x4=Rs.29016/for loss of income. 12 LOSS OF EARNING CAPACITY ON ACCOUNT OF DISABILITY
21.The petitioner has stated that he has acquired 65.5% disability. The petitioner has relied on disability certificate issued by Lok Nayak hospital Ex.PW1/5 as per which the petitioner is a case of severe head injury treated initially at AIIMS trauma centre surgically for right temporal EDH and at present his higher motor functions(HMF) are normal there is mild right facial nerve paresis, right hemiparesis, sensory deficit in both right upper and right lower limbs and it is observed that the total multiple disability in respect of petitioner works out to be 65.5% temporary disability to be reviewed after six months. As per disability certificate Ex.PW1/5 the petitioner has suffered 65.5% temporary disability. The petitioner has claimed himself to be a labourer and has not proved that on account of disability acquired he shall not be able to perform his avocation. The petitioner in his examination before court on 23.1.2014 stated that he is working as Raj Mistri and earning Rs.450/per day. Hence as per the contention of petitioner himself he is performing the avocation which he was performing at the time of accident. The petitioner has not proved that he has suffered permanent disability on account of which his efficiency to work would be reduced which would effect his capacity to earn in future.
22.In Raj Kumar VS Ajay Kumar & Anr.,(2011)1 SCC 343, Hon'ble 13 Supreme Court has held that :
"4..........The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair,reasonable and equitable manner. The court or tribunal have to assess the damages objectively and exclude from consideration any speculation or fancy,though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for 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 enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as mush as he used to earn or could have earned as much as he used to earn or could have earned. Thus tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6.Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a humanbeing. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder 14 life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is till able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''. "8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage 15 of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings(by applying the standard multiplier method used to determine loss of dependency)."
23.As the nature of disability suffered by petitioner is of temporary nature, hence, the loss of earning capacity of the petitioner cannot be quantified on the basis of applying the standard multiplier method used to determine loss of dependency. In view of the temporary disability acquired by petitioner notice can be taken of the fact that during the subsistence of temporary disability his capacity to earn would have reduced and the petitioner might have suffered loss of income. Accordingly, petitioner is awarded Rs.20,000/ on account of loss of income due to temporary disability acquired by him.
The total compensation is assessed as under:
Medicines and Medical treatment : Rs.15,688/
Pain and suffering and loss of
Amenities of life : Rs.50,000/
Conveyance and Special Diet : Rs.10,000/
Loss of Income : Rs.29,016
Loss of earning capacity
on account of temporary
disability : Rs.20,000/
TOTAL : Rs.1,24,704/
16
RELIEF
24.The petitioner is awarded a sum of Rs.1,24,704/(Rs.One Lac Twenty Four Thousand Seven Hundred Four Rupees only) alongwith interest @ 9% per annum from the date of filing of petition till its realisation including, interim award, if any already passed against the respondents and in favour of the petitioner. The entire amount be released to the petitioner.
25.The respondent no.3 shall deposit the award amount directly in bank account of the claimant at 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.
26.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 address of his counsel for sending the notice of deposit of the award amount. 17
27.The respondent no.3 shall deposit the award amount alongwith 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 alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 13.3.2014.
APPORTIONMENT OF LIABILITY:
28. Respondents have not examined any witness despite opportunities. As such respondent no.1 being the driver, respondent no.2 being owner and respondent no.3 being the insurer are held jointly and severally liable. Respondent no.3 being the insurer is directed to deposit the award amount within 30 days with interest at the rate of 7.5% from the date of filing of petition till its realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. 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.
An attested copy of the award be given to the parties.
File be consigned to Record Room.
Announced in the open court. (HARISH DUDANI) on 30.1.2014 PO/MACT01, New Delhi.