Delhi District Court
Sh. Vaibhav Gupta S/O Sh. Ajay Kumar ... vs ) Sh. Satish Lalwani S/O Sh. Nand Lal on 21 May, 2011
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In the court of Ashwani Sarpal, Addl. District & Sessions
Judge cum Judge, Motor Accident Claim Tribunal
Rohini Courts, Delhi.
(MACT Case no. 1086/10/07)
Sh. Vaibhav Gupta S/o Sh. Ajay Kumar Gupta
R/o BF-16, SFS Flats, Shalimar, Delhi -----------------Petitioner
Versus
1) Sh. Satish Lalwani S/o Sh. Nand Lal
R/o A-2/2C, Block A-C, Block-A-2, Lawrence Road
Keshavpuram, Delhi
2) ICICI Lombard General Insurance Company Limited
5th Floor, Birla Tower, Bara Khamba Road
Connaught Place, New Delhi -------------Respondents
Date of institution---10-7-2007
Date of decision------21-5-2011
(Application u/s 166 and 140 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:-
Petitioner Sh. Vaibhav Gupta aged about 24 years on 18-3-2007 at about 10.15 a.m. was standing at the side of the road near Gufawala Temple, BN Block, Shalimar Bagh, Delhi, then a two wheeler scooter No. DL-6-SY-3696 being driven by respondent no. 1 at high speed and in rash and negligent -2- manner came from the side of DAV School and hit him due to which petitioner fell down and suffered injuries. A criminal case under section 279/338 IPC was registered against respondent no.1 vide FIR no. 330/07 in police station Shalimar Bagh. Petitioner alleged that he was imparting tuitions and preparing for competitive exams and was earning Rs. 5,000/- per month. He claimed sum of Rs. 5 lakhs as compensation along with interest @ 18% p.a. from respondents being driver cum owner and insurance company of offending scooter under various pecuniary and non pecuniary heads.
Respondent no. 1 in his written statement admitted happening of an accident but blamed the petitioner for it by stating that he himself while negligently crossing the road came into impact of the scooter. Respondent no. 1 took him to hospital and also paid sum of Rs. 15,000/- to the uncle of the petitioner under compelling circumstances and the matter was orally compromised but petitioner lodged false complaint to police after about two months of the accident. Respondent no. 2 insurance company in its written statement while admitting existence of insurance policy in respect of the offending scooter tried to avoid its liability on various technical grounds. On the basis of pleadings of the parties, following issues were framed on 18-2-2008 by my ld. Predecessor;
1) Whether on 18-3-2007 at 10:15 a.m., near Gufawala temple, Shalimar Bagh, scooter no. DL-6-SY-3696 which was being driven rashly and negligently hit petitioner and caused injuries to him? OPP
2) Whether driver of the offending scooter held valid DL? OPR
3) Whether accident was caused due to negligence on the part of petitioner? OPP
4) Whether petitioner is entitled to compensation, as prayed for if so from which of the respondent? OPP
5) Relief.
-3-In order to prove his case, petitioner examined himself as PW-1 and Sh. Surender Kumar, Record Clerk from Parnami Orthopedic Hospital as PW-2. Respondent no. 1 examined himself as RW-1 and Dr. M.L. Parnami, CMO of Parnami Hospital as RW-2. Respondent no. 2 did not opt to examine any witness. I have heard counsel for the parties and gone through the record as well as written submissions of respondent no. 2. My decision on the above mentioned issues is as under:
Issues no. 1 & 3:-
The certified copy of criminal case record filed by the petitioner shows that police after investigation found that accident had taken place due to rash and negligent driving of offending scooter by respondent no. 1. The police charge sheet also shows that respondent no. 1 was arrested and lateron released on bail. The offending scooter was also seized by the police and lateron released on superdari. Respondent no. 1 admittedly is facing trial in that criminal case. Petitioner in his affidavit of evidence disclosed how and in which manner accident had taken place. He specifically blamed respondent no. 1 for driving offending scooter in rash and negligent manner and hitting him when he was standing at the side of the road near temple.
In this case, petitioner was taken to Parnami Hospital from the spot of accident and his MLC was not prepared. RW-1 doctor who treated the petitioner in the hospital on the application of IO Ex. RW2/A has given endorsement at point 'A' on 8-6-2007 (after about more then 2½ months of accident) which reveals that "patient sustained injury himself and no other person was involved as explained by the patient during treatment so no MLC was made. All X-rays are with patient". RW-2 in his cross examination admitted that at the time of making this endorsement, neither petitioner nor his parents were present nor he had noted down this fact anywhere in medical treatment record. He also admitted that he had made this endorsement as per normal practice on his own presumption that petitioner might have told these facts to him. It is not the case of RW-2 that he had remembered the case of -4- petitioner personally but his deposition that where MLC is not prepared, then as per normal practice such type of endorsement is made leads to the inference that this doctor had given this observations at his own without actually verifying the facts. However petitioner in his statement has stated that he had informed the doctor that he suffered injuries in roadside accident. In such situation, this endorsement of RW-2 made on application Ex. RW2/A cannot be relied upon and is liable to be rejected. No benefit of this endorsement can be given to respondent no. 1 and it cannot be presumed that petitioner had suffered injury himself and not in roadside accident.
Petitioner had lodged complaint with the police after about two months of the accident. He stated that he had not informed the police about the accident at the request of the respondent no. 1. This fact shows that some compromise negotiations had initiated between them. Respondent no. 1 had alleged that he had paid sum of Rs. 15,000/- to the uncle of the petitioner and the matter was orally compromised but he has not disclosed the name of that uncle nor having any receipt of making of such payment. Respondent no. 1 did not lodge any complaint to any higher authority against his alleged false implication. It is also admitted by respondent RW-1 that he did not know the petitioner prior to accident nor had any enmity with him or IO of the criminal case so possibility of false implication of the respondent no. 1 in criminal case is ruled out. When respondent no. 1 was not at fault then why he opted to give allegedly sum of Rs. 15,000/- to the uncle of the petitioner instead of petitioner has remain unexplained fact. Non obtaining of any receipt of this payment by respondent no. 1 from alleged uncle of the petitioner further create reasons to disbelieve this defence story. Contents of FIR also say the reasons why the report was lodged to the police after about two months. It is mentioned in the same that respondent no. 1 had agreed to pay all the expenses of treatment so at his request matter was not reported to police but lateron neither he paid expenses nor responded to calls so the report was lodged ultimately. These facts coupled with the admission of the respondent no. 1 that matter was orally settled justify the delay in lodging FIR. No benefit -5- of such delay in reporting the matter to police can be given to respondents in such situation.
As per PW-1 accident took place when he was standing on the side of the road. Respondent no. 1 in his written statement alleged that accident happened when the petitioner was trying to cross the road negligently whereas respondent no. 2 in its written statement alleged that accident took place when petitioner was standing in the middle of the road. This contradiction in the defence of both respondents leads to the assumption that manner of accident as stated by the petitioner is correct that scooter had hit the petitioner when he was standing. However there is a copy of the site plan prepared by the police of the site of accident on record (filed by petitioner himself) which reveals that accident took place in front of temple and petitioner almost had come at a distance of 1/3rd of the road from left verge of the road towards divider. If the petitioner has to be believed that he was standing when scooter had hit him then his position as shown in the site plan point out that he himself was also negligent as he was required to stand on the left corner of the road or on the footpath and not almost in the middle of the road. If any person takes a risk of standing almost in the middle of the road or beyond footpath/extreme left side of the road then he has to be treated as careless or negligent person. Standing of petitioner on the busy road where traffic is moving itself is sufficient to treat his act and conduct as negligent. In such situation, I am of the view that there is an aspect of contributory negligence also on the part of the petitioner and atleast 50% deduction towards contributory negligence has to be made from the compensation amount.
After considering the above circumstances, it is held that though accident had taken place due to negligence of the respondent no. 1 also in driving the offending scooter but there is also negligence and carelessness on the part of the petitioner in standing near the middle of the busy road which facilitated the accident for which on account of contributory negligence, 50% -6- compensation amount is liable to be reduced. Accordingly these issues are decided partly in favour of petitioner and partly in favour of respondents. Issue no. 2:-
Respondent no. 2 has not led any evidence that the driving license of respondent no. 1 was not valid or proper and he was not authorized to drive the scooter. In the written submissions of respondent no. 2 this aspect was not touched. Accordingly, it is held that respondent no. 1 was competent to drive the scooter and there was no defect in his driving license. This issue is thus decided against respondent no. 2 and in favour of respondent no. 1.
Issue no. 4:-
PW-2 from hospital has proved the medical record of petitioner which shows that he had suffered fracture of right leg which were found grievous in nature. The treatment record Ex. PW2/1 shows that petitioner had remained admitted in the hospital for six days from 18-3-2007 to 23-3-2007. During the period of hospitalization, he was operated upon for his injuries and interlocking nails were inserted in his leg. He remained under treatment as OPD patient thereafter and got himself checked from the hospital from time to time for about 1½ months as stated by PW-1 in his affidavit as well as supported by medicine bills etc. However his submission that thereafter he undergone physiotherapy treatment for one month is not acceptable or reliable as there is no prescription in this regard. In such situation, petitioner maximum can be said as under treatment for a period of about two months and thus entitled to the loss of income for this period.
Petitioner has placed on record certain medicine bills, hospitalization charges etc. Ex. PW1/1 worth Rs. 49,689/- after reducing concession of Rs. 3,420/- given by hospital authorities. No dispute regarding the correctness and genuineness of these bills is raised, so the amount of these medical bills at Rs. 49,689/- is liable to be paid to the petitioner. The claim of petitioner that he spent sum of Rs. 60,000/- upon his treatment is liable to be rejected.-7-
Petitioner requires some future treatment for removal of implants and as per certificate Ex. PW1/3, a sum of Rs. 20,000/- is to be spent upon the same. Respondents have not challenged this certificate and no question was put about it when the concerned doctor who issued it appeared as own witness of respondent no. 1 as RW-2. Accordingly petitioner is thus entitled to this amount of Rs. 20,000/- as future treatment. However in order to rule out the apprehension of the respondents that petitioner shall not use this amount upon his future treatment or may misuse the same, so it is ordered that this amount shall not be paid to the petitioner but shall remain deposited in the court and shall be sent by the court to the concerned Parnami Hospital directly after petitioner undergoes the operation for removal of implants.
Petitioner claimed sum of Rs. 10,000/- on conveyance and Rs. 15,000/- upon special diet. Record shows that petitioner visited hospital as OPD patient on some occasions even after discharge. No proof of spending upon conveyance and special diet is brought on record but it is a fact that normally in case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc. is provided instead of or in addition to the normal food. Accordingly, I am of the view that maximum petitioner can be paid lump sum Rs. 10,000/- towards special diet and conveyance charges. The claim of the petitioner regarding incurring of total Rs. 25,000/- on conveyance and special diet is rejected.
Judicial notice can be taken of the fact that due to fracture, normal human life is also affected. Difficulty and inconvenience must have arisen to perform even daily personal routine acts. He must have suffered great pain and sufferings due to fracture and could not enjoy the amenities of life properly till the period of treatment. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the status and condition of the petitioner, extent of injuries, period of his hospital admission and treatment as OPD patient, he is granted lump sum amount of Rs. 50,000/- towards pain and sufferings, inconvenience and temporary loss of amenities etc. -8- Petitioner stated that he was imparting tuitions and was earning sum of Rs. 5,000/- per month. He has not disclosed anywhere specifically how many students were getting tuitions from him and at which place he was giving tuitions. It is also not disclosed in which class those students were studying and which subject was taught to them by the petitioner. It is also not disclosed how much fees he was getting from each of the student. In such situation on the basis of vague averments, it is not possible to accept the earnings of the petitioner from tuitions. Petitioner has placed on record certificate of his educational qualification Ex. PW1/5 which shows that he had passed graduation level. In such circumstances by taking the help of minimum wages schedule, petitioner can be presumed to have earnings of graduate worker at the relevant time. Accident took place on 18-3-2007 and at the relevant time, graduate person was presumed to be earning sum of Rs. 4,230/- per month. Accordingly, he is entitled to sum of Rs. 8,460/- towards loss of earnings of two months.
Petitioner has not suffered any disability and how his marriage prospect has been reduced is not explained. Accordingly, he can not be granted any compensation towards loss of marriage prospectus on the basis of alleged handicapped or alleged becoming permanently crippled person. Similarly petitioner is not entitled to any compensation towards alleged non attending of SSB interview due to injuries because call letter Ex. PW1/4 shows that petitioner was earlier also called to attend the interview but he did not responded, so was given one more chance to report for interview. It is not the case of the petitioner that he had made any request to army authorities for extension of time due to suffering of injuries. Why he had earlier not reported for interview is not explained. These facts shows that petitioner himself was not interested to report for interview and this call letter which was received coincidently with the date of accident cannot be treated as sufficient to grant any compensation for alleged non attendance of interview and due to alleged ruining of career.-9-
Respondent no. 2 has failed to lead any evidence that it is not liable to pay the compensation or any term or condition of the insurance policy was breached. The offending scooter was insured with the respondent no. 2 so the entire liability to pay the compensation amount falls upon it. In view of the above discussions, this issue is decided in favour of petitioner by holding that he is entitled to get the compensation from the respondent no. 2 only:
a) Medical expenses-------------------------------------Rs. 49,689/-
b) Future treatment-------------------------------------Rs. 20,000/-
c) Special diet and conveyance charges --------------Rs.10,000/-
d) Pain and sufferings etc.----------------------------- Rs. 50,000/-
e) Loss of income-----------------------------------------Rs. 8,460/-
__________________ Total Rs. 1,38,149/-
Rs. 1,38,150/- in round figure.
Since as held above, due to contributory negligence 50% of the compensation amount has to be reduced, so petitioner is entitled to sum of Rs. 69,075/-. As sum of Rs. 20,000/- towards future treatment has also been awarded which is yet to be incurred so on this amount petitioner is not entitled to any interest. Petitioner shall be entitled to interest at the rate of 7.5% p.a. on the amount of Rs. 49,075/- only from the date of institution of the petition i.e. 10-7-2007 till realization.
Issue no. 5 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 2 insurance company is directed to pay/deposit within 30 days a sum of Rs. 69,075/- along with interest at the rate of 7.5% p.a. upon amount of Rs. 49,075/- only from 10-7-2007 till this amount is fully realized.-10-
It is further ordered that sum of Rs. 20,000/- towards future treatment awarded to the petitioner shall not be paid to him but shall remain deposit in the court in the shape of FDR. This amount along with any interest accrued on FDR shall be directly sent to the Parnami Hospital by the court after petitioner undergoes operation for removal of implants. It is also ordered that if the petitioner does not undergo necessary surgery within one year from the date of this judgment, then this amount shall be returned back to the respondent no. 2 insurance company and shall not be taken back thereafter. If the expenses of surgery exceeds Rs. 20,000/- then the balance amount has to be paid by the petitioner from his own pocket, however if the treatment amount comes to less then Rs. 20,000/-, then the balance amount shall be returned to the respondent no. 2. Insurance company is directed to prepare two separate cheques, one of Rs. 20,000/- in the name of the court which shall be deposited in SBI, Rohini Court branch for preparation of FDR for a period of one year. The second cheque of Rs. 49,075/- along with interest at the rate of 7.5% from 10-7-2007 till the date of deposit be issued in the name of petitioner.
Copy of this judgment be given to petitioner and counsel for respondent no. 2. File be consigned to record room.
(Ashwani Sarpal)
Dt. 21-5-2011 Judge, MACT (Outer-II)