Delhi District Court
Deepak Kumar vs Sh. Shriram Yadav on 25 September, 2009
1
IN THE COURT OF SH. GIRISH KATHPALIA
ADDL. SESSIONS JUDGE,DISTRICT NORTH,
DELHI
Suit No.86/09
DEEPAK KUMAR
S/o SH. JAI MANGAL
R/o F-290, STREET NO.6,
WAZIRABAD VILLAGE,
DELHI. .....PETITIONER
vs
1. SH. SHRIRAM YADAV
S/o SH. SADHU YADAV
R/o H.NO. H-300,
SHAKOOR PUR,
DELHI.
2. SH. JATINDER PAL SINGH
S/o SARDAR GURJEET SINGH
R/o C-35, DTC COLONY,
SHADIPUR,
NEW DELHI-110008
3. NATIONAL INSURANCE COMPANY LTD.
BRANCH OFFICE AT:
201, HARSHA HOUSE, MILAN COMPLEX
KARAM PURA,
NEW DELHI 110015. .....RESPONDENTS
Suit No. 86/09 Page 1 of 14 pages 2 Date of institution:02.07.08 Date of taking up the matter for the first time:29.05.09 Date of conclusion of arguments:24.09.09 Date of award:25.09.09 Counsel for Petitioner: Sh. R.K. Tiwari, Advocate Counsel for Respondent No.3: V.K. Puri, Advocate AWARD
1. By way of this petition, brought under the provisions of Section 166 Motor Vehicles Act, petitioner has claimed compensation for the injuries suffered by him in a roadside accident, which led to a permanent disablement. As pleaded by petitioner, on 29.04.08, being a vegetable hawker, he was going on his rickshaw to purchase vegetable from whole sale market in Azad Pur. At about 05.00am, when petitioner crossed Gandhi Vihar cut on the outer ring road, car bearing registration number DL 1VB 4534 came from behind in a rash and negligent manner at a fast speed and hit rear portion of Suit No. 86/09 Page 2 of 14 pages 3 petitioner's rickshaw. On account of forceful impact, petitioner fell down and suffered grievous injuries. After the accident, petitioner was removed to the Trauma Centre, LN Hospital by PCR van. Local police of PS Timarpur registered a case against driver of the offending car. Petitioner remained admitted in the hospital from 29.04.08 to 04.05.08, during which period his left fractured leg was operated upon. On account of injuries sustained in this accident, petitioner also suffered a permanent physical disablement for which he was examined by a medical board constituted at Babu Jagjiwan Ram Memorial Hospital and the medical board issued certificate dated 12.02.09, holding the disability suffered by petitioner to be permanent and 35% in relation to post traumatic stiffness of left hip and knee. Respondents number 1,2&3 being respectively the driver, owner and insurer of the offending car are jointly and severally liable, as per petitioner. Hence, this petition.
Suit No. 86/09 Page 3 of 14 pages 4
2. Respondents no.1&2 opted not to contest and were proceeded exparte. Respondent no.3 in their written statement admitted that as on the date of accident the offending car stood duly insured with them.
3. On the basis of pleadings, my learned predecessor framed the following issues:
1. Whether the petitioner sustained injuries in an accident on 29.04.08 at about 05.00am due to rash and negligent driving of Tavera car bearing number DL 1VB 4534 by R1?
2. Whether the petitioner is entitled to a compensation, if so, to what amount and from whom?
3. Relief.
4. In support of his case, petitioner examined five witnesses while no evidence was adduced on behalf of respondents despite repeated opportunities. I have heard learned counsel for both the sides and perused the record. My issuewise findings are as under:
Suit No. 86/09 Page 4 of 14 pages
5
ISSUE NO.1
5. Petitioner stepped into the box as PW1 to depose on oath the abovementioned contents of his petition and placed on record his documents as Ex.PW1/A-W. Although PW1 was cross examined by learned counsel for respondent no.3, despite their application under Section 170 Motor Vehicles Act having been allowed, no cross examination on issue no.1 was conducted.
6. PW2, investigating officer of the local police proved copies of chargesheet filed against respondent no.1 pertaining to this accident as Ex.PW2/1 (colly).
7. PW3, a record clerk from Babu Jagjiwan Ram Memorial Hospital proved disability certificate of petitioner as Ex.PW3/1.
8. PW4, a doctor from Trauma Centre proved MLC Ex.PW2/1 of petitioner and stated that he had examined the petitioner and prepared the MLC.
Suit No. 86/09 Page 5 of 14 pages 6
9. During final arguments, learned counsel for respondent no.3 in all fairness conceded to the issue under consideration.
10. Ex.PW2/1 (colly) are copies of chargesheet filed by PS Timarpur against respondent no.1 pertaining to this accident for offence under Section 279/338 IPC. MLC of petitioner, prepared at the Trauma Centre immediately after this accident reflects the petitioner to have suffered grievous injuries.
11. On the basis of unchallenged evidence available on record as discussed above, issue no.1 is decided in favour of petitioner and it is accordingly held proved that on 29.04.08 petitioner suffered grievous injuries in a roadside accident in the area of PS Timarpur due to rash and negligent driving of car number DL 1VB 4534 being driven by respondent no.1.
ISSUE NO.2
12. As described above, petitioner deposed on oath the abovementioned contents of his petition and placed on record documents Ex.PW1/A-W. Suit No. 86/09 Page 6 of 14 pages 7
13. PW3 a record clerk from Babu Jagjiwan Ram Memorial Hospital proved the disability certificate issued to the petitioner as Ex.PW3/1.
14. PW5 Dr. Sameer Mehta, a member of the medical board again proved the disability certificate of petitioner as Ex.PW5/1 after producing office records of the board.
15. During final arguments, learned counsel for respondent no.3 contended that rent agreement Ex.PW1/A and Secondary School Examination mark sheet ought to have been proved by petitioner by summoning the alleged landlord of the petitioner and his school records from Patna. It was also argued that rent agreement Ex.PW1/A being an unregistered document, cannot be relied upon. I fail to agree with these arguments. Documents Ex.PW1/A&J have been brought on record to show status of the petitioner in the sense that he had qualified Secondary School Examination and was also paying rent @ Rs.2,000/- per month. It is trite proposition of law that the Suit No. 86/09 Page 7 of 14 pages 8 present proceedings are not in the nature of criminal or even civil trial; the present proceedings are inquiry proceedings, not enshackled by the strict rules of evidence and procedure. When petitioner appeared in the box to prove these documents, absolutely no cross examination on either of these documents was done by the learned cross examiner. At this stage, these documents cannot be thrown out on the grounds that landlord of this handicapped petitioner and school records from Patna were not summoned.
16. As per medical treatment documents on record, especially the discharge slip Ex.PW1/B the petitioner had suffered compound comminuted fracture of both bones of left leg which led to deformity and the consequent disability as certified by medical board vide certificate Ex.PW5/1.
17. Towards money spent on medical treatment, petitioner has placed on record bills to the total tune of Rs.8,643/-. In Suit No. 86/09 Page 8 of 14 pages 9 round figures, towards cost of medical treatment petitioner is awarded Rs.9,000/- .
18. So far as extent of permanent disability suffered by petitioner is concerned, learned counsel for respondent no.3 argued that in view of judgments of Hon'ble Delhi High Court in the case of SUBHASH CHAND vs RULDA SINGH, II (2007) ACC 776 and SURAJ PRAKASH KHANNA vs BALBIR SINGH, I (2008) ACC 468, the disability certified in Ex.PW5/1 being 35% only in relation to left hip and knee joint, the disability in relation to full body cannot be more than 10%. In the case of SUBHASH CHAND, hon'ble Delhi High Court upheld the view taken by learned tribunal that where the disability certified was 25% with regard to one limb, with regard to complete body the disability could not be more than 10%. In the case of SURAJ PRAKASH, disability certified by board was 58% but the treating doctor in the box opined the disability to be 40%, which was taken as criteria. In my Suit No. 86/09 Page 9 of 14 pages 10 considered view, neither of the judgments cited on behalf of respondent no.3 is applicable to the factual matrix of present case for reasons as discussed herein after.
19. For present purposes, what has to be seen is the extent of occupational disability which may or may not be same as certified by medical board. While estimating the extent of occupational disability, the nature and extent of injury has to be read in the light of occupation of the injured. In the cases cited by learned counsel for respondent no.3, the occupation of injured persons was private service (in SUBHASH CHAND) and lecturer (in SURAJ PRAKASH). In contrast, petitioner before me was a vegetable hawker, who earns livelihood by selling vegetables on a rickshaw pedalled by himself. The disability of lower limb in case of present petitioner is much more devastating than such a disability to a private employee or a lecturer and the three cannot be taken on same footing.
Suit No. 86/09 Page 10 of 14 pages 11 As such, for present purposes, occupational disability of petitioner is taken to be 20%.
20. So far as earnings of petitioner are concerned, as admitted by him in cross examination, there is no documentary evidence in that regard. Ex. PW1/A is a copy of rent agreement as per which petitioner was paying a sum of Rs.2000/- per month towards rent of his house. Ex. PW1/J is a copy of marksheet of Secondary School Examination which was passed by the petitioner in the year 2002. In the absence of clear evidence, monthly earnings of petitioner for present purposes are taken to be Rs. 4,100/- payable towards minimum wages to a matriculate workman in Delhi at the time of accident.
21. So far as age of the petitioner is concerned, in view of his date of birth 13.02.87 as reflected from his matriculation marksheet Ex. PW1/J, petitioner's age at the time of accident is taken to be approximately 21 years. Appropriate multiplier for Suit No. 86/09 Page 11 of 14 pages 12 computation of future loss of earnings would be 18, as per table formulated by the Hon'ble Supreme Court in the case of SARLA VERMA vs DTC, Civil Appeal no. 3483/08 decided on 15.04.09.
22. Accordingly, loss of future earnings suffered by the petitioner on account of 20% occupational disability comes to Rs.4100/- X 20% X 12 X 18 = Rs.1,77,120/- and the same is awarded to him.
23. Looking into the nature of injuries suffered by petitioner, it cannot be denied that for a period of about six months he would have stayed away from work absolutely. Towards loss of total earnings for first six months after the accident, petitioner is awarded a sum of Rs.24,600/- @ Rs.4100/- per month.
24. Towards pain and agony, special diet and conveyance keeping in mind the injuries suffered by petitioner a lumpsum amount of Rs.50,000/- is awarded.
Suit No. 86/09 Page 12 of 14 pages 13
25. Taking guidance from the view expressed by the Hon'ble Delhi High Court in the case of SURAJ PRAKASH (supra) cited on behalf of respondent no.3, to the effect that where a leg gets immobilised, a person suffers various kinds of loss of pleasures of life, towards loss of amenities and enjoyment of pleasures, petitioner is awarded a sum of Rs.20,000/-. ISSUE NO.3 (RELIEF)
26. In all, petitioner is awarded a sum of Rs.2,80,720/- (Rupees two lacs eighty thousand seven hundred twenty only) towards compensation for the injuries suffered by him in the abovesaid accident alongwith interest thereon @ 6% per annum from the date of filing the petition till the date of actual payment.
27. Although, respondents are jointly and severally liable, respondent no.3 being insurer of the offending car shall pay the compensation so awarded to the petitioner within a span of 30 days from the date hereof.
Suit No. 86/09 Page 13 of 14 pages 14
28. Keeping in mind the educational and social status of the petitioner, in order to prevent the compensation from being frittered away it is directed that out of the compensation so paid, a sum of Rs. 2,50,000/- shall be kept by way of fixed deposit with some nationalised bank for a period of three years with liberty to draw monthly interest.
29. Copies of this award be supplied to parties and file be consigned to records.
ANNOUNCED IN THE OPEN COURT ON 25th SEPTEMBER 2009 (GIRISH KATHPALIA) ADDL. SESSIONS JUDGE DELHI Suit No. 86/09 Page 14 of 14 pages