Delhi District Court
Mohd. Abdul Rehman vs Har Dayal Singh on 4 January, 2008
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IN THE COURT OF SHRI DILBAG SINGH : PRESIDING
OFFICER : MACT : DELHI
Petition No. 119/07
Date of filing of Petition 02.07.2007
Date of conclusion of final 30.11.2007.
arguments/Date of reservation
of judgment
Date of Award 04.01.2008
Mohd. Abdul Rehman
S/o Sh. Mohd. Sajid Khalifa,
R/o 14/1, G-6A, Swaroop Nagar,
New Delhi.
... Petitioner.
Versus
1 Har Dayal Singh
S/o Sh. Rattan Singh,
R/o Village Mangolpur Kalan,
Delhi.
2 Sh. Mahabir Singh,
S/o Sh. Lakhmi Chand,
R/o M-30, Shastri Nagar,
Delhi.
3 M/s National Insurance Co. Ltd.,
4th Floor, Tower-II, Jeevan Bharti Bldg.
124, Connaught Place, New Delhi
... Respondents.
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AWARD 1 By this award I shall dispose of a petition U/s 166 and 140 of Motor Vehicle Act 1988 as amended upto date (hereinafter referred to as the Act) wherein compensation to the tune of Rs. 10,00,000/- has been claimed on account of vehicular accident.
2 Brief facts as cullable from the records of the case are being stated first. On 03.08.2005 at about 2.30 PM petitioner alighted from bus no. DL-1PB-0727 at local bus stand ISBT Kashmere Gate and walked 2/3 steps when the driver of bus drove the bus rashly and negligently and took a sharp turn with the result that front wheel of the bus crushed his foot as a result of which petitioner received grievous injury. Case U/s 279/337 IPC bearing FIR No. 417/05 was registered at Police Station Kashmere Gate. A compensation of Rs. 10,00,000/- has been claimed under different heads. Respondent no.1 is the driver of the offending vehicle and respondent no.2 is the owner of the offending vehicle. Respondent no.3 is the insurer of the offending vehicle. 3 3 Notice of the petition was given to the respondents. Respondent no.1 and 2 have not filed their written statements. Respondent no.2 was deleted from the array of respondents vide orders dated 11.10.2006. Respondent no.2 was proceeded exparte on 20.10.2006 as he failed to appear despite service having been effected upon respondent no.2 for 25.05.2006.
4 Respondent no. 3 National Insurance Company has taken its usual statutory objections U/s 149 (2) of the Act concerning breach of terms and conditions of insurance policy viz-a-viz valid and effective driving licence, possibility of fulfillment of Section 170 and that of contributory negligence. Fact of vehicle being insured vide policy no. 350304/31/05/ 6700000518 with validity period from 31.05.2005 to 30.05.2006. (Date of accident 03.08.2005), has been admitted. 5 From the pleadings of the parties, my Ld. Predecessor vide his orders dated 16.11.2006 had framed the following issues :
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1 Whether the petitioner received injuries in a road accident on 03.08.2005 caused due to rash and negligent driving of vehicle no. DL-1PB-0727 by R.1 driver?
2 Whether the petitioner is entitled for compensation and if so, to what amount and from whom? 3 Relief.
6 Petitioner in support of its case, has examined PW-1 Sh. Mohd. Abdul Rehman, who has proved his affidavit Ex. PW1/X. Respondents on the other hand have not produced any evidence.
7 Arguments were heard at the bar. Counsel for the petitioner Sh. Anshuman Bal as well as Counsel Sh. S.D. Wadhwa for respondent no.3 were heard at length. They have argued in consonance with their respective versions put forth during the proceedings.
8 I have perused the records of the case and considered the submissions. My issue-wise findings are as 5 follows :
Issue No.1.
9 Petitioner in context of this issue has tendered his affidavit Ex. PW1/X. In para no.1 of the same he has testified that he had travelled in bus no. DL-1PB-0727 and had de- boarded the the same at local bus stand ISBT, Kashmere Gate and he had walked hardly 2/3 steps when the driver of the bus drove the bus rashly and negligently and took a sharp turn. That consequent to the same front wheel of the bus crushed his feet, as a result of which he received fracture in left leg. The above mentioned version in para no.1 has gone unchallenged and uncontroverted and for this reason itself issue no.1 has to be decided in favour of the petitioner. 10 Petitioner has also placed on record certified copies of records of criminal case, in which the conclusion of rashness and negligence on the part of the driver of the bus has been arrived at. MLC of the petitioner also substantiate the conclusion arrived at above by me. Non-stepping of the driver of the bus in the witness box also goes against the 6 respondents in view of the mandate of New India Assurance Co. Ltd. Vs. Dhanesh Kumar and ors. reported in I (1994) ACC 561.
11 In view of the above going discussion issue of rashness and negligence is decided in favour of the petitioner and against the respondents.
Issue No.2.
12 Assessment of compensation in an injury case is difficult as compared to fatal cases. Injured has to remain alive with traumatic experience of injuries and on account of this, compensation is comparatively at a higher side. Assessment in injury cases is made under two major heads i.e. pecuniary and non-pecuniary damages. Pecuniary damages are those damages which can be precisely calculated. Under non-pecuniary head compensation is paid on the basis of estimation. Procedure of assessment has been laid down time and again and I do not deem it expedient to burden this judgment with the precedents. My head wise assessment of 7 compensation is as follows:-
Treatment expenses
13 Petitioner has testified that he has spent Rs. 30,000/- on treatment. During cross-examination he has categorically admitted that he had no documentary proof to show that he had spent Rs. 30,000/- on his treatment. He admitted that whatever medical documents he had with him had been placed on record. He admitted that he remained admitted in Hospital only for a period of 24 hours and was plastered for a period of about 1½ months. On the records of the case there is MLC in which injury has been opined to be grievous. A casualty slip is also there. As per the same petitioner sustained abrasions on right knee of the size of 4 cms x 2 cms, abrasion on left knee with swelling of the size of 4 cms x 4 cms and laceration behind the left ear of the size of 3 cms x 0.8 cm and multiple abrasion on the left side of face of superficial nature. It has been opined in MLC that there was no difficulty in weight bearing. Although as per x-ray report bearing no. 837-838 dated 14.01.2008 given on 16.01.2006 by x-ray department of Aruna Asaf Ali Hospital no bony injury was 8 opined, still the injury has to be considered as grievous as in the MLC nature of injury has been shown as grievous. In the report U/s 173 Cr.P.C. also injury has been shown as grievous. So I have no hesitation with me to observe that grievous injury was sustained. Although the argument of Sh. S.D. Wadhwa to the effect that no treatment expenses were incurred by the petitioner for the reason that treatment was obtained in Government Hospital, carries some weight, but the same cannot be allowed in toto for the reason that it is common knowledge that one has to incur expenses on treatment despite the fact that treatment is obtained in a Government Hospital. Keeping in view this fact, I deem it expedient to award a sum of Rs. 5,000/- under the head of treatment expenses. Reliance is placed on Ragani Vs. Raju reported in 2003 ACJ 1108 (Delhi).
Loss of earning 14 Petitioner in his affidavit Ex. PW1/X testified that due to the accident he could not work for about six months. During cross-examination he admitted that in the actual he 9 could not work for a period of 3 to 3½ months. It is there in the cross-examination of the petitioner that he remained under plaster for a period of 1½ months. In view of the above going discussion, loss of earning can be awarded for a period of three months by taking a liberal view.
15 Next question which immediately arises is as at to what rate. Petitioner in his affidavit has given his income as Rs. 5,000/- per month. During cross-examination he could not substantiate his assertion and admitted that he was not having any documentary proof with respect to earning of Rs. 5,000/- per month. Therefore, the minimum wages have to come into play. No proof with respect to educational qualification or skill has been placed on record by the petitioner and for the reason the loss of earning has to be awarded on the basis of minimum wages of a unskilled and uneducated worker. On the date of accident i.e. 03.08.2005 minimum wages of an unskilled and uneducated worker were Rs. 3,165.90 ps. (say Rs. 3,200/-). The same comes to Rs. 3,200 x 3 = 9,600/-.
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Special diet and conveyance 16 Petitioner has testified that he spent Rs. 15,000/- on special diet and conveyance. During cross-examination he admitted that he had no documentary proof to show that he spent Rs. 15,000/- on special diet and conveyance. No document was brought to my notice wherein petitioner was prescribed special diet. No documentary proof with respect to spending of amount on conveyance has been shown. Therefore, the bare self serving assertion of spending of Rs. 15,000/- on special diet and conveyance cannot be believed and the same is disallowed. After doing so I have to enter into the realm of estimation and in view of the facts and circumstances of the case I deem it expedient to award a sum of Rs. 4,000/- under the heads of special diet and conveyance.
Pain and suffering 17 I have already detailed about the nature of injury in the head of treatment expenses and I am not repeating the same for the sake of brevity. Keeping in view the nature of 11 treatment, period of treatment, nature of injury and all other facts and circumstances of the case, I deem it expedient to award a sum of Rs. 15,000/- under the head of pain and suffering.
18 In view of my above going discussion of assessment of compensation, the compensation assessed is being chunked together as follows : -
1 Medical expenses : Rs. 5,000/- 2 Loss of earning : Rs. 9,600/- 3 Special diet and conveyance : Rs. 4,000/- 6 Pain and suffering : Rs. 15,000/-
___________ Total : Rs. 33,600/-
___________ 19 Therefore, an award for a sum of Rs. 33,600/- is being passed in favour of the petitioner and against the respondents. Petitioner shall also be entitled to interest on the awarded amount @ 7% p.a. in view of the mandate of Section 171 of the Act with the rider that interest shall not be paid for the period w.e.f. 16.11.2006 to 07.09.2007 in view of orders 12 dated 09.08.2007. No orders for keeping the amount in Fixed Deposit are being passed in view of the fact that amounts awarded are not on a higher side.
Liability to pay 20 Liability to pay is fastened on the respondent- Insurance Company as it is not the case of the Insurance Company that there was any breach of terms and conditions of the policy. No need to mention that primary liability was that of respondent no.1 and respondent no.2 and on account of indemnification agreement by virtue of the insurance policy, respondent no.3 is being asked to pay. The awarded amount shall be paid within 30 days from today, failing which this Tribunal shall be constrained to take harsh steps including award of penal interest.
21 Copy of this order be given to parties for necessary compliance.
File be consigned to record room.
Announced in the open court Dated 04.01.2008.
(DILBAG SINGH) JUDGE, MACT: DELHI 13 14