Delhi District Court
Sh. Shyam Lal vs Sh. Rajender Prasad on 4 July, 2012
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IN THE COURT OF MS.POONAM CHAUDHARY
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.: 249/10
DATE OF INSTITUTION: 28.3.2007
Unique ID no. 02403C0321312007
1. Sh. Shyam Lal
S/o Sh. Bhalla Ram
R/o H.no. 4019, Regarpura,
Karol Bagh, New Delhi ............... Petitioner.
Versus
1. Sh. Rajender Prasad
S/o Sh. Shankar Lal
R/o WS34A, Krishnapuri,
New Delhi110018. (Driver)
2. Sr. Manager, Mail Motor Service
Naraina, New Delhi (Owner)
................Respondents
Final Arguments heard on : 30.6.2012 Award reserved for : 4.7.2012 Date of Award : 4.7.2012 AWARD
1. Vide this judgment cum award I shall decide the petition filed by the petitioner U/s 166 and 140 of Motor Vehicle Act, 1988 as amended up to 2 date (hereinafter referred to as the Act) for grant of compensation in a road accident .
2. Briefly stated the facts of the case giving rise to the petition are that on 08.01.2007 at about 9.25 AM the petitioner was going to his office at Delhi District Cricket Association at Feroz Shah Kotla ground, Delhi on his scooter bearing no. DL6SE0175 and when he reached Panchkuinyan road opposite Delhi Heart and Lungs Institute, New Delhi the offending vehicle bearing no. DL1LP1401 which came from the backside being driven in a rash and negligent manner hit the scooter of petitioner. It is further stated that due to the impact of the accident petitioner fell on the road and sustained grievous injury and was removed to Delhi Heart and Lung Institute, New Delhi where his MLC was prepared and he was thereafter removed to Sir Ganga Ram Hospital, New Delhi.
3. It is further stated that accident occurred due to rash and negligent driving of the driver of offending vehicle bearing no. DL1LP1401 i.e respondent no. 1 and he was driving the said vehicle under the employment of respondent no. 2, as such both the respondents are jointly and severally liable to pay compensation to the petitioner.
4. It is further stated that due to the accident the petitioner became permanently disabled. It is also alleged that petitioner was 41 years of 3 age at the time of accident and was working as an Umpire in Delhi District Cricket Association, at Feroz Shah Kotla Stadium, New Delhi and drawing Rs. 8,000/ per month.
5. It is prayed that Rs. 20,00,000/ (Rs. Twenty Lacs) be awarded as compensation to the petitioner against the respondents and interim compensation be also awarded under Section 140 of the Act with interest @ 15% per annum from the date of filing of petition will realisation as well as cost of the petition be also awarded.
6. Respondent no. 1 the driver contested the petitioner stating therein that petition was not maintainable. It was further stated that respondent no. 1 was an employee of respondent no. 2 and was on duty on 8.1.2007 and at about 9.10 AM, he was going to his office at G.P.O, New Delhi. It was further stated that petitioner was carrying a very heavy cricket bag on his scooter which was kept on the front side of the scooter near the brake. It was further alleged that petitioner was behind the vehicle of respondent when he reached at Delhi Heart & Lungs Hospital and suddenly a person came in front of his scooter due to which petitioner lost control as he was carrying his heavy kit and petitioner fell down behind the vehicle of the respondents and sustained injuries. It was denied that accident was caused by the vehicle of respondent no. 2. It was further stated that respondent no. 1 was driving the vehicle in question at a very slow speed 4 and a false case was registered against respondent no. 1. It was also alleged that vehicle of respondent no. 1 was not involved in the accident neither respondent no. 1 caused the accident. It was denied that respondent no. 1 was liable.
7. Respondent no. 2 the owner also contested the petition denying all the averments made in the petition. It was denied that respondent no. 2 was liable to pay compensation.
8. On the pleadings of parties following issues were framed:
1. Whether the petitioner sustained injury in the accident on 8.1.2007 involving motor vehicle no. DL1LB1401 LGV being driven by respondent no. 1 in a rash and negligent manner and owned by respondent no. 2 or due to his own negligence or by hit by the said offending vehicle? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.
9. In support of his claim the petitioner examined himself as PW1. He tendered his evidence in examination in chief by affidavit which is Ex.PW1/A reiterating therein the contents of the petition. He proved his treatment record and bills. He also proved his MLC prepared in Delhi Heart and Lungs Institute, New Delhi which shows that he was admitted in hospital by traffic police with the history of road traffic accident. He also 5 proved his salary certificate.
10.In his crossexamination he stated that at the time of his admission in Delhi Heard and Lungs Institute, New Delhi he was unconscious. He also stated that he was taken to hospital by public persons and the driver of the offending vehicle. He further stated that police officials met him at the hospital and his statement was recorded in Sir Ganga Ram Hospital because at the time of his admission in Jessa Ram Hospital he was not fit to give statement. He denied that he was not crossing from the Zebra crossing. He also denied that accident occurred at the busy place. He also denied that at the time of accident he was carrying his cricket kit but stated that he was carrying small bag on his shoulder. He denied that accident occurred as he applied bakes to save a pedestrian who was crossing the road and lost his balance. He further denied that he was behind the offending vehicle. He also denied that the offending vehicle di not hit his scooter. He also stated that he had been doing the job of scorer and umpiring in Delhi District Cricket Association since 1516 years on daily wages and used to earn about Rs. 6,000/ to 7,000/ per month. He denied that his income certificate Ex.PW1/3 was not signed by the Honorary Secretary of Delhi District Cricket Association.
11. The petitioner also examined Sh. Pyara Singh, Medical Record Supervisor of Sir Ganga Ram Hospital as PW2 who proved his medical 6 record Ex.PW2/A1 to Ex.PW2/A13. In his crossexamination he stated that he has no personal knowledge of the record and also stated that it was not prepared in his presence by the doctor but stated that he had deposed on the basis of the record of the hospital.
12. The petitioner also examined Sh. Charan Singh record clerk of Jessa Ram Hospital, Karol Bagh, New Delhi as PW3 who also proved the medical bills for a sum of Rs. 36,713/ Ex.PW3/A as well as the case history of patient Shyam Lal Ex.PW3/B1 to Ex.PW3/B35. In his cross examination he stated that he has no personal knowledge in respect of the medical record and bills. He further stated that bill was issued by the accounts Department. He further stated that record was not prepared in his presence by the doctor and he had deposed on the basis of the record of the hospital.
13. The petitioner also examined Sh. N.C Vishwas, record clerk of RML hospital as PW4 who proved the disability certificate of petitioner Ex.PW4/A according to which he suffered 30% permanent visual impairment. In his crossexamination he stated that he could not tell as to how the petitioner sustained permanent disability nor could he tell the time when the petitioner sustained disability. He also stated that disability certificate was not prepared and signed in his presence by any doctor. The petitioner thereafter closed his evidence.
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14.On the other hand respondent no. 1 examined two witnesses. R1W1 Sh. Rajender Prasad the driver of offending vehicle who tendered his evidence in examination in chief by affidavit Ex.R1W1/A reiterating therein the contents of the written statement. He proved the photographs of the spot Ex.R1W1/1 to Ex.R1W1/4, salary certificate of petitioner Ex.PW1/5 and the envelope of the same Ex.PW1/6, appreciation certificate issued to him by his Senior Officers. In his crossexamination he stated that he did not know the petitioner and IO. He further stated that he had no previous enmity with them. He further stated that he was arrested in the criminal case and his vehicle was impounded by the police. He also stated that he did not complain to the higher authorities against the IO regarding his false implications in the criminal case. He denied that accident occurred due to his negligent driving.
15. Respondent no. 1 also examined an eyewitness Sh. Pramod Kumar, Assistant Manager Depot Incharge, Mail Motor Service, Meghdoot Bhawan as RW2. He also tendered his evidence by affidavit stating therein that he was an eyewitness to the alleged accident and deposed that on 8.1.2007 he was going to his office and at about 9.20 AM he was dropped by his government vehicle at the bus stand near Delhi Heart and Lung Institute Panchkuinyan Road and had to cross the road to go to his office. He further stated that he saw there the alleged offending vehicle 8 coming at a very slow speed and stopped at the red light traffic signal. He also stated that he saw the petitioner travelling with a heavy cricket bag on his scooter when a pedestrian came in front of his scooter and petitioner lost balance and fell on the road and all his articles (bag, pads, balls etc) were scattered on the road. He also stated that petitioner was removed to the hospital. He further stated that he collected the scattered articles and also lifted the scooterist. He further stated that their vehicle was impounded by the police and a false case was registered against respondent no. 1. In his crossexamination he stated that driver was facing trial in the criminal court. He also stated that he had not lodged complaint against the police officials for the false implications of their driver i.e respondent no. 1 in the criminal case. He further testified that he informed his department about the accident. Respondents thereafter closed their evidence.
16.I have heard the Ld. counsel for the parties and perused the record. ISSUE NO. 1
17.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that the accident was caused due to rash and negligent driving of the offending vehicle bearing no. DL1LB1401 by its driver.
18. As regards proof of negligence of driver of offending vehicle it has been 9 held in 2009 ACJ 287 National Insurance Company Ltd. V/s Pushpa Rana & Another as follows:
"NegligenceEvidenceAdmissibility of DocumentCertified copy of criminal court, such as, FIR, recovery memo and mechanical inspection report of vehicle are documents of sufficient proof to reach the conclusion that driver was negligentproceedings under Motor Vehicles 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. "
19. In this regard the Petitioner has stated on oath that he met with an accident caused by vehicle bearing no. DL1LB1401. In his cross examination he denied that accident took place due to his negligence as he was carrying a cricket kit/bag on his scooter and lost balance when a pedestrian suddenly came in front of his scooter. Moreover, petitioner proved the certified copies of the criminal record i.e. chargesheet filed against respondent no. 1 filed U/s 279/338 IPC, FIR no. 7/07 registered against the driver of the offending vehicle for the offence U/s 279/337 IPC, superdiginama of the offending vehicle, site plan, seizure memo and mechanical inspection report of the offending vehicle, MLC of the petitioner.
20.On the other hand respondent no. 1 the driver examined himself as RW1. He stated that he was on duty as a driver of vehicle No. DL1LB1401 on 8.1.07 and at 9.25 am and was going to G.P.O. New Delhi. and at Delhi Heart and Lung Institute. He further stated that his 10 vehicle did not hit the petitioner's scooter no. DL6SE0175 and further stated that infact petitioner lost balance of the scooter as he was carrying a heavy kit and fell down and sustained injuries. In his crossexamination he stated that he was arrested in the criminal case and vehicle and that was being driven by him and it was impounded by the police. He further stated that he did not complain to the higher authorities regarding his false implication in the criminal case. The respondents had also examined an eyewitness RW2 who corroborated the version of RW1. In his crossexamination RW he stated that driver was facing trial in the accident case and he also did not lodge complaint to the higher authority about the false implication of the driver in the criminal case.
21.Thus, in view of the testimony of petitioner, certified copies of criminal record and the admission of respondent no. 1 that he was facing trial in the criminal case there as police investigation concluded that accident was caused by respondent no. 1 who is an accuse in the criminal case it has been prima facie established that the petitioner met with an accident caused by the rash and negligent driving of the driver of the offending vehicle no. DL1LB1401. Issue no.1 is accordingly decided in favour of petitioner.
ISSUE NO. 2
22. As issue no.1 is decided in favour of petitioner, he is entitled to 11 compensation.
COMPENSATION MEDICINES AND MEDICAL TREATMENT
23. Petitioner has proved his MLC of Delhi Heart & Lungs Hospital Ex.PW1/11 according to which he was taken to hospital Delhi Heart and Lung Institute with history of road traffic accident and from there he was shifted to Sir Ganga Ram Hospital. Petitioner also proved the certificate of admission in Sir Ganga Ram Hospital as Ex.PW1/12 according to which he was hospitalised from 8.1.2007 to 9.1.2007 and thereafter from 9.1.2007 to 29.1.2007. Petitioner also examined Medical Record Supervisor of Sir Ganga Ram Hospital who proved the medical record of petitioner as Ex.PW2/A and stated that he was hospitalised from 9.1.2007 to 29.1.2007. Petitioner also examined Medical Record Clerk of Jessa Ram Hospital who proved the medical bills of patient Shyam Lal Ex.PW3/1 for Rs.36,712/. The petitioner proved the medical bills for Rs. 4,08,219.64/ qua same were disputed by respondents but no evidence to the contrary was brought on record by the respondents to disprove the same. Thus, considering the nature of injuries I award Rs. 4,08,219.64/ which may be rounded off Rs. 4,08,220/ towards medicines and medical treatment.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE 12
24. As regards nonpecuniary damages i.e. general damages for pain and suffering and trauma it has to be assessed according to the age, nature of injury suffered by claimant and effect thereof on the future life of claimant. In the case of R. D. Hatangadi v. Pest Control (India) Pvt. Ltd 1995 ACJ 366 SC, where victim sustained 100% permanent disability was awarded Rs.1,50,000/ (Rs. One Lakh Fifty thousand) under the head of pain and suffering, on the same analogy as petitioner suffered 30% permanent visual impairment, I award Rs. 1,50,000/ (Rs. One Lakh Fifty Thousand Only) towards pain and suffering and loss of amenities of life.
CONVEYANCE AND SPECIAL DIET
25. Petitioner deposed that he had spent Rs. 1,00,000/ (Rs. One Lakh) on special diet and Rs. 50,000/ (Rs. Fifty Thousand) on conveyance. However, no documentary proof of amount spent on conveyance and special diet was filed. However, considering the nature of injuries I am of the view that petitioner must have spent on conveyance and special diet. I accordingly, award Rs. 25,000/ towards conveyance and special diet. LOSS OF INCOME
26. Petitioner stated that at the time of accident he was working as a scorer and umpire in Delhi District Cricket Association and used to earn Rs. 7,000/ per month. He further stated that he could not work after the 13 accident. He also stated that he remained hospitalised from 8.1.2007 to 27.1.2007. He proved his salary certificate Ex.PW1/3 though respondents disputed the same but no evidence to the contrary was brought on record by the respondents to disprove the same. Ld. Counsel for respondents disputed the disability certificate. It was argued that Petitioner obtained disability certificate after 2 years of the accident. However, the treatment record of the petitioner shows that he was treated for eye injury, as such I am of the view that he suffered permanent visual impairment in the present accident.
27. The next contention of counsel for respondents is that petitioner did not suffer any loss of income. In this regard RW1 stated that he had filed an application under the provisions of Right to Information Act with Delhi District Cricket Association seeking information as to whether petitioner was working as an umpire and scorer and earning Rs. 6,000/ to 7,000/ per month. He proved the reply filed by Delhi District Cricket Association dated 27.2.2009 Ex.PW1/5 stating therein petitioner had been doing the job of scorer and umpire during the Delhi District Cricket Association league matches and BCCI matches for the past 10 years and was earning Rs. 6,000/ to 7,000/ per month. It was contended there in view of the reply of Delhi District Cricket Association deposition of the petitioner that he could not resume work after the accident was false and 14 he is liable to be prosecuted U/s 340 Cr.P.C for giving false deposition in the court. It was further contended that Ex.RW1/5 was sufficient proof of the fact that there was no break in service of the petitioner and he continued to work on the same job. However, it is pertinent to note that petitioner was not confronted with Ex.RW1/5 in his crossexamination. Thus, the deliberate falsehood of petitioner was not established, as such I do not find any merit in the said contention of respondents.
28. For assessment of compensation in case of loss of future earning due to disability it has been held in Arvind Kumar Mishra Vs. New India Assurance Co. Ltd in 2010 (10) SCALE 298 that in case where the petitioner suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. It was also held that the Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity.
29. In view of the deposition of respondent no. 1 and Ex.RW1/5 it has been proved that petitioner continued in the same service and continued to earn Rs.6,000/ to Rs. 7,000/ per month as such there was loss of earning due to his disability. However, Petitioner stated that he was hospitalized for 08.10.07 to 29.1.07 and proved the discharge report as such he is awarded one month salary i.e. Rs. 6,000/ towards loss of income during his treatment. 15 The total compensation is assessed as under:
Medicines and Medical treatment : Rs. 4,08,220/
Pain and suffering loss of
Amenities of life : Rs. 1,50,000/
Conveyance and Special Diet : Rs. 25,000/
Loss of Income : Rs. 6,000/
TOTAL : Rs. 5,89,220/
RELIEF
30. I thus award Rs. 5,89,220/ (Rs. Five Lacs Eight Nine Thousand Two Hundred Twenty only) with interest at the rate of 9% per annum from the date of filing of petition till its realisation including, interim award, if any already passed against the respondents in favour of the petitioner. The liability of all the respondents being joint and several.
31. For safeguarding the compensation amount from being frittered away by the claimants directions have been given by Hon'ble Supreme Court for preserving the award amount in case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:
32. 10% of the share of petitioner be released to her by transferring it into her savings account and remaining amount be kept in FDR in UCO Bank, Patiala House court Branch, New Delhi in following manner:
1. Fixed deposit in respect of 10% for a period of one year. 16
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
33. The cheque be deposited in UCO Bank, Patiala House Court Branch in the name of UCO Bank, A/c Sh. Shyam Lal.
34. The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimant/beneficiary.
35. Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary.
36.The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.
37. No cheque book shall be issued to the claimant without permission of 17 the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
38.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.
39.Bank shall transfer Savings Account to any other branch according to their convenience.
40.The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court Branch, New Delhi.
41. 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.
42.The petitioner shall file two sets of photographs along with her 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.
18APPORTIONMENT OF LIABILITY:
43. The driver examined himself as RW1 he stated that he did not cause the accident, the accident was caused due to the negligence of the petitioner as he was carrying a cricket kit on his scooter and suddenly when a pedestrian came in front of his scooter lost balance and fell down. In his crossexamination he stated that he was facing trial in the criminal case and he had not lodged any complaint regarding his false implications in the criminal case. As issue no. 1 has been decided in favour of the petitioner and against the respondents as such both the respondents are held jointly and severally liable to pay compensation. Respondent no. 1 and 2 being the driver and owner are directed to deposit the award amount within 30 days with interest at the rate of 9% per annum from the date of filing of petition till its realisation including interim award if any already passed. In case of any delay, they are 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.
44. An application has been moved by respondents u/s 340 Cr.P.C. The contention of the respondent is that the petitioner is liable to be prosecuted U/s 340 of Cr P.C. for filing of false affidavit stating that he 19 could not resume the work of umpire/ scorer in the Delhi District Cricket Association after the accident. It was alleged that the respondent had filed an application before the Public Information Officer, Delhi District Cricket Association at Feroz Shah Kotla dated 2.7.2009 seeking information as to whether Shyam Lal S/o Bhalla Ram was working as an umpire and scorer and earning Rs.6,000/ to 7,000/ per month. It was further stated that Delhi District Cricket Association in reply to said letter dated 27.2.2009 Ex.RW1/5 informed that Shyam Lal had been doing job of scorer and umpire during the Delhi District Cricket Association league matches and BCCI matches for the last 10 years. It was alleged that in view of the reply of Delhi District Cricket Association there was no break in the service of the petitioner and continued to perform the same job but he deliberately filed false affidavit stating that he could not continue his job after the accident.
45. In support of his contentions Ld. Counsel for respondents has placed reliance upon 161 (2009) Delhi Law Times 466 (DB) in the Contempt Proceedings against Kanwar Singh Saini as follows:
Filing of false affidavits or statements in judicial proceedings amounts to criminal contempt as it tends to obstruct administration of justice.
46.Moreover, section 340 Cr.P.C provides that the court has to exercise the judicial discretion in the light of all the relevant circumstances to 20 determine the question of expediency and order prosecution in the larger interest of administration of justice and not to gratify the feeling of personal revenge of a private party. In other words the court must be satisfied that there is a primafacie case of deliberate the falsehood on a matter of substance and there is a reasonable foundation for the charge and also it is expedite in the interest of justice to file a complaint. In the present case the deliberate falsehood of petitioner was not brought on record as he was not confronted with Ex.RW1/5.
47. Moreover, the provisions of Motor Vehicle Act are benevolent legislation and the proceedings before the Tribunal are in nature of an inquiry. The Tribunal has to ascertain the facts which are alleged to find out whether those facts exists or do not exist. The provisions of M.V. Act are in the nature of social welfare legislation and on receipt of the claim petition u/s 166(4) of the Act or Accident Information Report filed by the police U/s 158(6) of the Act, the tribunal has to ascertain the factum of accident having caused by rash and negligent driving of offending vehicle, the age of the victim, his occupation, income, number of legal representatives in case of death. Thus, as the proceedings before claimant tribunal are in the nature of inquiry rather than adversial trial, the scope of the application U/s 340 of Cr.P.C. in the strict sense does not arise. For the foregoing reasons, in my view, the petitioner is not liable to prosecuted 21 U/s 340 Cr.P.C. The application is dismissed.
An attested copy of award be given to the parties (free of cost). File be consigned to Record Room.
Announced in the open court.
On 4.7.2012 (POONAM CHAUDHARY)
JUDGE: MACT1 : NEW DELHI