Delhi District Court
Mact No. 14/09; Shiv Kumar Tomar vs . Parmod & Ors. on 10 September, 2010
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MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
IN THE COURT OF SH. B. S. CHUMBAK, ADDITIONAL SESSIONS
JUDGE:DLEHI
Petition No. :14/09
Date of filing of the petition :09.08.2007
Date of assignment to this court :15.07.2009
Date on which judgment was reserved :08.09.2010
Date of award :10.09.2010
Shiv Kumar Tomar
S/o Sh. Om Prakash Tomar
R/o Plot no. 100-101, Gali no. 1,
Main Road Karwal Nagar, New Chauhan Pur,
Karawal Nagar, Delhi.
.... Petitioner
Versus
1. Sh. Parmod
S/o Sh. Virender
R/o K-30/1, Vijay Vihar, Phase II,
Delhi 110 085.
2. Sh. Inder Mohan Negi
S/O Sh. Ram Parkash Negi,
R/o 36-B, Lane no. 4, Radhey Puri Extn.
Krishana Nagar, Delhi-51.
3. National Insurance Company Limited,
C-32, Community Centre, Indl. Area, Phase-I,
Naraina, New Delhi-28
...Respondents
AWARD
1. Petitioner Shiv Kumar Tomar S/o Sh. Om Prakash Tomar R/o Plot no. 100- 101, Gali no. 1, Main Road Karwal Nagar, New Chauhan Pur, Karawal Nagar, Delhi-110 094 filed a petition u/s 166 & 140 of the Motor Vehicle Act (hereinafter referred to as Act of 1988) against Sh. Parmod S/o Sh. Virender, R/o K-30/1, Vijay Vihar, Phase II, Delhi 110 085, driver (hereinafter referred to as respondent 1 2 MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
no. 1), Sh. Inder Mohan Negi S/o Sh. Ram Parkash Negi, R/o 36-B, Lane no. 4, Radhey Puri Extn., Krishana Nagar, Delhi-51owner (hereinafter referred to as respondent no. 2 ) and National Insurance Company Limited, C-32, Community Centre, Indl. Area, Phase-I, Naraina, New Delhi-28(hereinafter referred to as respondent no. 3) for seeking compensation in lieu of the injuries sustained by him due to the said accident.
2. The brief facts arising out of this case are that on 04.07.2007 petitioner was going to attend his duty at Kaushambi, (UP) on his motorcycle bearing no. DL 7S-AY-4062 petitioner was working as engineer in a construction company titled as M/s R. N. Enforces, Kaushambi, UP, when the petitioner reached at Tahir Pur Bus Stand SDM Chambri at about 9.20am a bus bearing no. DL 1PB-0473 being plyed on a route no. 971 which was being driven with high speed by driver(R-1) in a rash and negligent manner and hit with the motorcycle of the petitioner. Due to that the petitioner fell down on the road in front of the left front tyre and both the bones of his right hand got fractured. Petitioner also sustained other multiple injuries on his body. The petitioner was immediately removed to GTB Hospital in a precarious condition and got medically examined vide MLC bearing no. 2944/07. The aforesaid accident has been caused due to rash and negligent driving of the offending vehicle by R-1(driver). It is further averred that had respondent no. 1 being vigilant and cautious enough while driving the offending vehicle the said accident could have been averted and the injuries faced by the petitioner could have been avoided. It is further averred that a case u/s 279/337 IPC was also registered at PS Nand Nagari vide FIR no. 578/07 against R-1. It is further averred that the petitioner is a young boy of just 28 years of age with good health and 2 3 MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
sound physic and working as Construction Engineer with M/s R. N. Enforces, Kaushambi (UP) and earning handsome salary of Rs. 15,000/- per month. He was also having a prospective career and has been living a very settled life, but due to that accident all hopes and ambitions seems to be shattered due to these fractures on both bones of his right hand. The petitioner initially taken to GTB Hospital, St. Stephen Hospital and Sir Ganga Ram Hospital for a quite long period. He also averred that he incurred Rs. 2,50,000/- on receiving treatment. The petitioner has also suffered mental and physical pain and also suffered irreparable loss which cannot be compensated in terms of money. The petitioner claimed an amount of Rs. 10,00,000/- on account of multiple injuries sustained by him which might result in permanent disablement, compensation for medical expenses, conveyance, attendant charges etc. He also claimed the interim relief of Rs. 25,000/-.
3. Notice of the petitioner was served upon the respondent and in pursuant to the notice respondents appeared. R-1(driver) and R-2(owner) filed their written statement and R-3(National Insurance Co.) filed written statement separately.
4. R-1(driver) and R-2(owner) controverted all the allegations as alleged in the petition and submitted that the petitioner is not entitled for any compensation as claimed in the petition as no accident had taken place due to rash and negligent manner driving of R-1. In fact the petitioner who was running his motorcycle in rash and negligent at a very high speed and was also over taking the vehicle of the answering respondent from the wrong side. It is further pleaded that there was a hole on the road due to which the petitioner lost the control of his motorcycle and the motorcycle skipped and fell down on 3 4 MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
the road due to which petitioner received injuries. It is further averred that the answering respondent are not liable to pay any compensation as the offending vehicle was duly insured with The National Insurance Company, therefore, the liability, if any, is on the insurer of the vehicle to pay the compensation to the petitioner. It is further pleaded that the claim of Rs. 10,00,000/- as alleged in the petition is highly excessive and without any justification and also not based on mathematical calculation.
5. R-3 (National Insurance Company) also filed his separate written statement controverting therein all the allegations as alleged in the petition and submitted that the answering respondent is not liable to pay any compensation to the petitioner in case there in any collusion between the insured and the petitioner or that the insured did not plead and contest the case on merits. It is further pleaded that the Insurance Co. is not liable to pay any amount of compensation to the petitioner in case the insurer has violated any terms and conditions of the Insurance Policy issued by R-3. It is further pleaded that without prejudice to the other rights of the answering respondent, the amount claimed is highly excessive, exorbitant and without any formula. However, it is admitted by the R-3 in reply to para -17 in the written statement as per record available with the answering respondent, the policy bearing no. 361800/31/06/6300008770 was issued by R-3 in the name of Inder Mohan Negi (R-2) for a period from 19.12.2006 to 18.12.2007 in respect of the vehicle bearing no. DL 1P-B-0473.
6. On the basis of pleadings from both the sides following issues were framed on 07.05.2008 4 5 MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
i) Whether Sh. Shiv Kumar Tomar sustained injuries due to rash and negligent driving of bus bearing No. DL 1PB-0473 by R-1?OPP
ii) Whether the petitioner sustained injuries due to rash and negligent driving and if so, to what effect?OPR1.
Iii)Whether petitioner is entitled to any compensation, if so, from whom and of what amount?
iv) Relief.
7. After framing of issues case was fixed for petitioner's evidence.
8. Petitioner/injured Shiv Kumar Tomar appeared as PW 1 and filed his affidavit Ex. PW 1/A along with following documents. Deposing therein the same facts which were stated by him in his petition. He has also filed the following documents alongwith his affidavit.
(a)Ex. PW 1/1 details of salary.
(b)Ex. PW 1/ 2 is the letter of appointment which was issued on 01 May, 2007. ( c)Ex. PW 1/ 3 is the offer letter dated 23.03.2007.
(d) Ex. PW 1/ 4 is the letter issued by the Administrative Officer of Infra Communication (P) Ltd. Showing therein that the petitioner remained on medical leave 04.07.2007 to 16.09.2007 and no medical reimbursement has been claimed from the office.
(e)Ex. PW 1 /5 identity card issued from INFRA Communication .
(f) Ex. PW 1 /6 is the driving licence of the petitioner.
(g) Ex. PW 1/7 is the ration card.5 6
MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
(h) Ex. PW 1/8 is the documents of advice on discharge from Sir Ganga Ram Hospital.
(i)Ex. PW 1/9 is the discharge summary from Sir Ganga Ram Hospital.
(j)Ex. PW 1/10 to Ex. PW 1/12 is the prescription slip issued by the doctor of Sir Ganga Ram Hospital.
(k)Ex. PW 1/13 to Ex. PW 1/52 are the receipts for purchase of medicine.
9. It is also mentioned in the affidavit that the attested copies of the record of the criminal case which were directly sent by the SHO to the court, are also brought on record which are collectively Ex. P1. PW 1 also deposed that he has been declared Physical Hanicapped from the medical board of Hindu Rao Hospital, copy of the same is Ex. PW 3/A.
10.During his cross examination Ld. Counsel for the respondent no. 3 he deposed that his date of birth is 10.12.79 and he was holding a valid driving licence for driving the motorcycle. Copy of the same is already Ex. PW 1/6. He also admitted that he has been doing the same nature of job which he was doing in his earlier employment but he denied that he had not suffered any loss of earning capacity due to the accident.
11.PW 2 is the Medical Record Supervisor of Sir Ganga Ram Hospital, New Delhi. He produced the medical treatment record of the petitioner consisting 30 pages mentioning therein that patient(petitioner) was admitted in our hospital on 04.07.2007 and discharged on 11.07.2007 vide IP no. 3796 which are collectively Ex. PW 2/1 including carbon copy of the cash memo no. 2007- 2008/Ca/0002864 dated 11.07.2007 amounting to Rs. 53,530/-.
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12.During his cross examination he stated that he has no personal knowledge about the record.
13.PW 3 is the Member of Medical Board of Hindu Rao Hospital, Delhi and deposed that being a member of medical board. He had issued the disability certificate of patient Shiv Kumar S/o Om Prakash (petitioner herein) and on the basis of disability assessed a certificate bearing no. 1637 dated 03.07.2009 with OPD no. 248529 assessing therein 35 per cent disability in relation to both upper limbs was issued. Photocopy of the certificate Ex. PW 3/1 bearing his signature at point A. He further deposed that the disability of patient, Shiv Kumar (petitioner) has been assessed to be permanent in nature.
14. Thereafter PE is closed and case is fixed for RE. No RW present despite number of opportunities given to respondent. Therefore, RE was closed and case is fixed for final arguments.
15.After hearing arguments on behalf of Ld. Counsel for both the parties and also taking into consideration the evidence adduced by the petitioner and documents brought on record. My findings on the issues are as follows.
ISSUE NO. 1 & 2i) Whether Sh. Shiv Kumar Tomar sustained injuries due to rash and negligent driving of bus bearing No. DL 1PB-0473 by R-1?OPP
ii) Whether the petitioner sustained injuries due to rash and negligent 7 8 MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
driving and if so, to what effect?OPR1.
16. To decide both the issues petitioner brought on record an affidavit Ex. PW 1/A deposing therein that on 04.07.2011 at about 9.20am he was going to attend his duty at Kaushambi, UP on his motorcycle bearing no. DL 7S-AY- 4062 when he reached near Tahir Pur, Bus Stand , SDM Chambri in the mean time a bus bearing its registration no. DL 1P-B -0473 being driven by R-1 (driver) in a rash and negligent manner reached there and hit the petitioner with a great force with the sudden and forceful impact, the petitioner alongwith his motorcycle fell down on the road and came under he front tyre of the bus and had suffered both bone crushed injuries on his both hands . The petitioner removed to GTB Hospital and from where he was shifted to Sir Ganga Ram Hospital. The petitioner has also received the treatment from St. Stephen Hospital, City Hospital and the treatment is still continuing. In support of the aforesaid deposition true copy of FIR bearing no. 578/07 registered at PS Nand Nagari u/s 279/337 IPC dated 04.07.2007 that is the day of accident and in the said FIR the time of occurrence of the accident is mentioned as 9.20am. The factum of taking the injured at GTB Hospital i.e at about 9.30am on 04.07.2007 is further corroborated by the MLC bearing no. 2944/07. The factum of seizure of the offending vehicle bearing no. DL 1P-B- 0473 is also proved as the report of the Mechanical Inspector of the offending vehicle is also placed on record wherein it is opined that the vehicle was mechanically inspected by Mohan Singh of IO, PS Nand Nagari wherein no fresh damages were noticed and vehicle was fit for road test. Site plan duly prepared by the IO on 04.07.2007 showing the place of accident i.e near bus stand Tahir Pur shows at point A. The registration certificate of the offending vehicle, driving 8 9 MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
licence of R-1, insurance note cover of the offending vehicle issued by National Insurance Co. (R-3) is also brought on record. All these documents collectively corroborates the deposition of the petitioner as deposed in his affidavit and in view of the evidence discussed above and the documents already brought on record. I am of the considered view that the petitioner has placed on record sufficient documents to prove that on 04.07.2007 at about 9.20am, he met with an accident and received grievous injuries due to the rash and negligent driving of the offending vehicle bearing no. DL 1P-B-0473 which was being driven by R-1(driver).
17. On the contrary no evidence on behalf of R-1(driver), R-2(owner) and R-3 (National Insurance Co.) is brought on record prooving thereby that the accident had happened due to rash and negligent driving of the motorcycle which was being driven by petitioner himself and not by R-1(driver). In such circumstances I am of the considered view that the petitioner brought on record sufficient evidence to prove that he sustained injuries due to rash and negligent driving of the offending vehicle bearing no DL 1PB-0473 which was being driven by R-1 and not due to the rash and negligent driving of the petitioner. Accordingly, I decide both the issues in favour of petitioner against the respondents.
ISSUE No. 3Iii)Whether petitioner is entitled to any compensation, if so, from whom and of what amount?
18.In support of issue no. 3 the petitioner brought on record. All the relevant documents which are duly exhibited as PW 1/1 to PW 1/51 alongwith the 9 10 MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
attested copy of the record of criminal case which was directly sent by the SHO to this court and has been collectively Ex. P1. The petitioner has also placed on record, the original discharge summary, OPD card and original receipts for the purchase of the medicines which are Ex. PW 1/1 to PW 1/41. The Petitioner also filed the photocopy of driving licence, identity card and the bills for making the payment to the hospitals which are Ex. PW 1/42 to Ex. PW 1/51. PW-2 Record clerk of Sir Ganga Ram Hospital has also brought on record the attested copies of the treatment record of the petitioner alongwith the office copy of the bills for Rs. 53,530/- and all these documents are collectively Ex. PW 2/1. He also brought on record the another bills amounting to Rs. 16,511/- duly paid to the City Hospital, affiliated with Sir Ganga Ram Hospital. Apart from these payments, the petitioner had also placed on record, the original medical bills amounting to Rs. 4,815/-.
19.In support of his earning capacity the petitioner placed on record the photocopy of the appointment letter, salary certificate and identity card issued by Infra Communication Pvt. Ltd. Showing therein that the petitioner was working with Infra Communication Pvt. Ltd. as Civil Engineer and was earning Rs. 15,000/- per month. The petitioner also filed a certificate issued by his employer on account of leave taken by him due to said accident. Thereby it is proved that the petitioner had taken leave from his department from 04.07.2007 to 16.09.2007 and has become entitled to receive the compensation towards medical leave. Petitioner also placed on record the disability certificate issued by Medical Board Constituted at Hindu Rao Hospital and the disability certificate showing therein that the petitioner had suffered 35% permanent disability on his right arm and also disclosed that the 10 11 MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
skin grafting was also done and the said disability is permanent in nature, irrespective of aforesaid expenses incurred by the petitioner, he has also become entitled for compensation on account of mental pain and agony, future and past prospective earning loss, transportation, medical attendant and better diet in support of his contention he also placed his reliance in a decided case cited as "United India Insurance Co. Ltd. Vs. Shyam Kumar and Others, 2006 ACJ 2092" and "N. Obalaranga Vs. United India Insurance Co. Ltd. and another 2010 ACJ 760" wherein it is observed as under:
"In cases of continuing disability the claimant may be able to remain in his employment but with the risk that, if he loses that employment at some time in the future, he may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job. This 'loss of earning capacity has always been a compensable head of damage but has come into more prominence in recent years, probably as a result of the growth of the practice of 'itemising' awards. Assessment of damages under this head may be highly speculative and clearly no mathematical approach is possible but the court should be satisfied that there is a 'substantial' or 'real' risk that the claimant will be subject to the disadvantage before the end of his working life. If so satisfied, the 11 12 MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
Judge must then do his best to value the 'chance, taking into account all the facts of the case'."
20.In view of the aforesaid discussion, Ld. Counsel for the petitioner requested for granting compensation to the tune of Rs. 10 lakh towards all the heads discussed above.
21.On the contrary Ld. Counsel for the respondent failed to place on record any evidence for rebuttal to the evidence place on record by the petitioner and requested for granting compensation. In view of the observation given by their lordships in a decided case cited as "Sarla Verma Vs. Delhi Transport Corporation 2009 ACJ 1298" wherein it is observed as under:
"The Motor Vehicle Act, 1988 was amended by Act 54 of 1994, inter alia, inserting section 163-A and the Second Schedule w.e.f 14.11.1994.
Section 163-A of the M V Act contains a special provision as to payment of compensation on structured formula basis, as indicated in the Second Schedule to the Act. The Second Schedule contains a Table prescribing the compensation to be awarded with reference to the age and income of the deceased."
22.It is further submitted that petitioner has been doing a job at Gurgaon and 12 13 MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
getting salary of Rs. 25,000/- per month. It is also admitted that he is doing the same nature of job which he was doing in his earlier employment and in view of his continuing of job the petitioner is not entitled to receive compensation towards the head of loss of future prospective/employment.
23.After hearing arguments and in view of the discussion and the evidence documentary or oral brought on record. I am of the considered view that the petitioner succeeded in proving its case that he has become entitled to the compensation as follows.
Sl.No. On Account of Amount (Rs.)
1 Towards medical expenses. Rs.74,856/-
Towards loss of income towards Rs.36,000/-
receive treatment i.e 04.07.2007 to
2 16.09.2007
Expenses towards mental pain and Rs.35,000/-
3 agony
Since the petitioner has been re- Rs.25,000/-
employed and continue to work on the
same post, but future of loss of
employment, loss on account of
permanent disablement which has
been less efficient. Accordingly I
4 award the amount for disability.
5 Towards conveyance and better diet Rs.20,000/-
I also award as loss of earning Rs.30,000/-
6 capacity
Total Rs. 2,20,856/-
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MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
iv) Relief.
24.Accordingly, it is directed that National Insurance Company Limited (R-3) shall pay the amount of Rs.2,20,856/- with interest @ 7.5% p.a from the date of filing of the petition till its realization awarded to the petitioner within 30 days from the date of order in the name of petitioner with the tribunal by way of cheque. No order as to cost. A copy of the award be supplied to the parties free of cost. File be consigned to the Record Room.
ANNOUNCED IN OPEN COURT
DELHI DT.10.09.2010 (B. S. CHUMBAK)
ASJ-3/NE District Delhi
10.09.2010
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MACT No. 14/09; Shiv Kumar Tomar Vs. Parmod & Ors.
MACT NO. 14/09
Date: 10.09.2010
Present: None.
Vide separate detailed award it is directed that National Insurance Company Ltd. (R-3) shall pay the amount of Rs.2,20,856/- with interest @ 7.5% p.a from the date of filing of the petition till its realization awarded to the petitioner within 30 days from the date of order in the name of petitioner with the tribunal by way of cheque. No order as to cost. A copy of the award be supplied to the parties free of cost. File be consigned to the Record Room.
(B.S. CHUMBAK) ADDL.SESSIONS JUDGE-3 NORTH EAST DISTRICT DELHI 15