Delhi District Court
) Suit No: 382/ vs Shri Raju @ Raj Kumar S/O Sh. Prakash ... on 2 January, 2014
IN THE COURT OF SHRI PREM KUMAR BARTHWAL,
PO: MACT (SE01), SAKET COURTS, NEW DELHI
1) Suit No: 382/10
Unique ID No: 02403C02589062010
Mohd. Shakil S/o Mohd. Yusuf,
R/o House No. E119, Lal Kuan,
Badarpur, New Delhi - 44. .......PETITIONER
AND
2) Suit No: 474/10
Unique ID No: 02403C02519022010
Mohd. Umar S/o Mohd. Shakil,
R/o House No. E119, Lal Kuan,
Badarpur, New Delhi - 44. ........PETITIONER
VERSUS
1. Shri Raju @ Raj Kumar S/o Sh. Prakash Chand,
R/o Village Latifpur, PO & PS Dankaur Kotwali,
District G.B. Nagar, Uttar Pradesh
2. M/s ICICI Lombard General Insurance Co.,
Zenith House Keshavarao Khade Marg,
Mahalaxmi, Mumbai - 400034 (Maharashtra)
........RESPONDENTS
Suit No. 382/10 & 474/10 Page 1 of 21
Date of filing of claim petitions 31.07.2010 Date on which the Award/judgment reserved 02.01.2014 Date on which the Award/judgment pronounced 02.01.2014 Shri Mohan Lal, counsel for petitioners Shri Ganesh Tripathi, counsel for R1
Shri Dinesh Kumar, counsel for R2/Insurance Company A W A R D:
1. Vide this common judgment, I shall dispose off two claim petitions i.e. petition bearing No. 382/10 titled "Mohd. Shakil Vs. Raju @ Raj Kumar & Anr." and other petition bearing no. 474/10 titled "Mohd. Umar Vs. Raju @ Raj Kumar & Anr." as these two claims have arisen out of the same road vehicular accident which had taken place on 12.08.2009 and the respondents are also common and these two petitions stood consolidated vide proceedings dated 24.01.2012. The plea of the petitioners is that the they had sustained injuries in a road vehicular accident that took place on 12.08.2009 near Yamuna Bridge, Kalandikunj, Okhla, Gate No. 13, New Delhi involving vehicle bearing registration No. UP14AV4486 (motorcycle) driven by respondent No. 1, Shri Raju @ Raj Kumar.
2. The notices of the petitions were issued to the respondents No. 1 and 2 who are respectively the drivercumowner and insurer of the alleged offending vehicle. The respondent No. 1 Suit No. 382/10 & 474/10 Page 2 of 21 has filed the written statement denying the claim of the petitioners and contending that the respondent N. 1 was going towards Noida via Yamuna Bridge, Kalini Kunj, New Delhi at about 09.00 PM on 12.08.2009 and the traffic towards Noida was normal but it was heavy traffic towards Delhi and the petitioner came on the wrong side and collided with vehicle of the respondent No. 1. It has been further contended that there was no negligence on part of the respondent No. 1 and that the accident had taken place due to negligent driving by the petitioner himself. The respondent No. 2/Insurance Company has also filed its written statement through its counsel denying the claim of the petitioners but has not disputed that insurance of the vehicle involved in this accident.
3. From the pleadings of the parties, following issues were framed for consideration in both the claim petitions on 24.01.2012 :
1. Whether the petitioner suffered injuries in a road vehicular accident that took place on 12.08.2009 due to rash and negligent driving by respondent no. 1 while driving vehicle bearing registration no. UP14AV4486?
2. Whether the petitioner is entitled for any compensation? If so, to what amount and from whom?
Suit No. 382/10 & 474/10 Page 3 of 21
3. Relief
4. In order to prove their claims, the petitioners have got examined three witnesses i.e. Mohd. Shakil (petitioner in Suit No. 382/10) and Mohd. Umar (petitioner in Suit No. 474/10) have been got examined as PW1 and PW2 respectively and Mohd. Kashim S/o Mohd Shakil has been got examined as PW3. The learned counsel for the petitioners has closed evidence on behalf of the petitioners vide his statement recorded on 04.07.2012. The respondent No. 1 has not examined any witness and the respondent No. 2/Insurance Company has got examined Shri Salil Toppo, Ahlmad in the Court of Shri Amitabh Rawat, MM08 (SE), Saket Court, New Delhi as R2W1.
5. I have heard the learned counsels for the parties and considered the testimonies of the witnesses and perused the record. My findings to the issues are as under : ISSUE NO. 1 (COMMON IN BOTH PETITIONS):
6. Since the present petitions are under Section 166 of M V Act, it was the bounden duty of the petitioners to prove that the respondent No. 1 was rash and negligent in driving the offending vehicle at the time of accident. In order to prove this issue, the learned counsel for the petitioners has relied upon the statements of Suit No. 382/10 & 474/10 Page 4 of 21 PW1, Mohd. Shakil: PW2, Mohd. Umar who have deposed that on 12.08.2009 at about 09.00 p.m. they were coming from Noida to their residence at Lal Kuan on motorcycle bearing registration No. DL3S AS4142 driven by Mohd Umar and when they reached at Yamuna Bridge, Kalandi Kunj, Okhla Tarrack, Gate No. 13, the motorcycle bearing registration No. UP14AV4486 driven by respondent No. 1 in a rash and negligent manner came from wrong side and hit their motorcycle resulting in grievous injuries to them. The petitioners have also filed the copy of FIR No. 61/10 dated 18.03.2010, Ex. PW1/2 as well as their MLCs, Ex. PW1/6 and 7 alongwith the medical bills, Ex. PW1/8 and the treatment record, PW1/9. PW1, Mohd Shakil was crossexamined by the counsels for the respondents and he denied the suggestions given to him by the counsel for R1 that he was going on wrong side as there was heavy traffic on the other side of the road. He also stated that he had made telephone calls to the police and the police had reached the spot after about half an hour. He also averred that he was taken to Trauma Center, AIIMS by the police after the accident. PW2, Mohd Umar has also denied the suggestions given to him by the counsel for R1 that they were going on wrong side as there was heavy traffic on the other side. He has also averred that there was no divider on Suit No. 382/10 & 474/10 Page 5 of 21 the place of accident. He also denied that accident had been caused due to his own negligence. PW3, Mohd. Kashim has also averred that he was also coming with his father, Mohd Shakil on other motorcycle and had witnessed the accident and has reiterated the versions of PW1, Mohd Shakil and PW2, Mohd Umar in respect of rash and negligent driving of the respondent No. 1. He has categorically averred that after the accident the R1 tried to run away but due to traffic jam he had apprehended the R1 and taken the keys of the offending vehicle bearing No. UP18AV4486. The Ld counsel for the respondents have argued that there was delay in registering of FIR in this case. However, the learned counsel for the petitioners has argued that when the concerned police officials did not take any action against the respondent No. 1 for considerable period than the complainant was constrained to file the complaint case bearing No. 605/09 in the court of Shri Devender Kumar Jangala, MM, Patiala House Courts, New Delhi and vide order dated 30.01.2010 said court had directed SHO, PS Jaitpur, New Delhi to register an FIR whereafter FIR No. 61/10 was registered at PS Jaitpur. The copy of the said order dated 30.01.2010 has also been filed on record by the petitioners. The learned counsel for the R2/Insurance Company has argued that the said FIR had been Suit No. 382/10 & 474/10 Page 6 of 21 cancelled vide order dated 19.07.2011, Ex. R2W1/B passed by Ms Mona Tardi Kerketta, MM02, SE, Saket, New Delhi which has been filed on record by R2W1, Shri Salil Toppo. However, I note that in the order dated 19.07.2011, Ex. R2W1/B, it has been recorded that the complainant had compromised the matter at the spot of accident itself and the process issued to the complainant was received back with the report that he has left the given address and his present whereabouts are not known. The learned counsel for the petitioners vehemently disputes the factum of compromise and submits that the IO of the case i.e. SI Rajiv Ranjan of PS Jaitpur had made false statements as the complainant, Mohd Umar has been residing at the given address i.e. E119, Lal Kuan, Badarpur, New Delhi and is still living in the same premises. The learned counsel for petitioners has vehemently argued that the IO/ SI Rajiv Ranjan had been colluding with the respondent No. 1/ drivercumowner of the offending vehicle. The learned counsel for petitioners has relied upon the judgment of Hon'ble Guwahati High Court in case titled "Ranu Bala Paul and Ors. V/s Bani Chakraborty and Ors., 1999 ACJ 634, wherein it is held that: "In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a Suit No. 382/10 & 474/10 Page 7 of 21 criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society." The Hon'ble Supreme Court has also observed as in a case titled 'N.K. V. Bros (P) Ltd. V/s M.Karumai Ammal & Others, (1980) 3 SCC 457 that: "Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of resipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from Suit No. 382/10 & 474/10 Page 8 of 21 the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes". The respondent No. 1, Shri Raju @ Raj Kumar has not cared to enter into the witness box to explain his version regarding the manner in which the accident has taken place and and has not cared to explain circumstances regarding his involvement in FIR No. 61/10, PS Jaitpur and the same compels this Tribunal to draw adverse inference against him. In the backdrop of above case laws and the documents filed on record and particularly in view of no controverting evidence on behalf of the respondent No. 1, it stands proved on record that the petitioner, Mohd. Shakil and Mohd. Umar had suffered injuries due to rash and negligent driving of respondent No. 1 on 12.08.2009. Accordingly, the issue No. 1 is decided in favour of the petitioners and against the respondents. ISSUE NO. 2 (COMPENSATION):
7. So far as this issue is concerned, I shall be deciding the claims of the petitioners independently and my findings are as under : ISSUE NO. 2 IN PETITION NO. 382/10:
8. The petitioner, Mohd. Shakil has claimed a total compensation of Rs.3,26,000/ as compensation on account of the Suit No. 382/10 & 474/10 Page 9 of 21 injuries suffered by him in this accident. Let me now assess the award amount to be given to the petitioner under different heads:
COMPENSATION FOR MEDICAL EXPENSES:
9. The petitioner has filed on record only one original medical bill, Ex.PW1/8 amounting to Rs.5,017/. Therefore, I hereby award a sum of Rs.5,017/ towards medical expenses keeping in view the nature of injuries suffered by petitioner in this accident.
COMPENSATION FOR PAIN, SUFFERINGS AND LOSS OF AMENITIES OF LIFE:
10. Let me now assess the compensation to be paid to the petitioner for pain, sufferings and loss of amenities of life. It is settled law that a particular amount can not be fixed for pain and sufferings for all the cases as it varies from case to case. As per the medical record of the petitioner i.e. MLC, Ex.PW1/7, issued from JPN Apex Trauma Center, AIIMS Hospital, New Delhi, the doctor examining the petitioner after the accident has opined about the nature of injuries suffered by the petitioner to be grievous. As per the Discharge Slip, Ex.PW1/9 issued from JPN Apex Trauma Centre, AIIMS Hospital, New Delhi, the petitioner, Mohd. Shakil was admitted in the said hospital on 12.08.2009 and was discharged on 13.08.2009 and he was diagnosed with Bony avulsion of ent tendons of right foot. Suit No. 382/10 & 474/10 Page 10 of 21
Judicial notice can also be taken on the fact that since the petitioner had suffered grievous injuries, he must have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy doses of antibiotics etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the compensation for pain and sufferings, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain V/s Jai Kishan (FAO No: 709/02 decided on 02.02.2007) wherein it was held that: "On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objective corelation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment."
11. Keeping in view the said guidelines of the Hon'ble High Court of Delhi and keeping in view the nature of injuries suffered by the petitioner due to this accident, I am of the opinion that a sum of Rs.30,000/ as compensation towards pain, sufferings and loss of amenities of life would be sufficient to meet the ends of justice. Suit No. 382/10 & 474/10 Page 11 of 21 COMPENSATION FOR CONVEYANCE:
12. The learned counsel for the petitioner has claimed compensation for expenses incurred by the petitioner on conveyance. Though, there is no cogent evidence on record regarding the amount spent by him on conveyance but keeping in mind the fact that the petitioner had suffered grievous injuries and was hospitalized and has also visited the hospital number of times for his treatment, I am of the opinion that a sum of Rs.5,000/ as compensation on account of conveyance will meet the ends of justice.
COMPENSATION FOR SPECIAL DIET & ATTENDANT CHARGES:
13. The learned counsel for the petitioner has claimed compensation for expenses incurred by the petitioner on special diet & attendant charges for early recovery of the petitioner. Though, there is no cogent evidence on record regarding the amount spent by the petitioner on special diet and attendant charges but keeping in mind the fact that the petitioner had suffered injuries and he would have spent some amount on special diet & attendant charges during his treatment, I am of the opinion that a sum of Rs.10,000/ as compensation on account of special diet & attendant charges will Suit No. 382/10 & 474/10 Page 12 of 21 meet the ends of justice.
COMPENSATION FOR LOSS OF INCOME:
14. The petitioner, Mohd. Shakil has claimed in para 03 of his evidence affidavit, Ex.PW1/A that he is a tailor and was doing work on contract basis with M/s Style India, A35, Sector7, Noida, UP and was earning a sum of Rs.11,200/ per month and has also averred in para 07 of his evidence affidavit that he has suffered loss of income due to this accident. However, PW1, Mohd Shakil has admitted during his crossexamination on 23.04.2012 that there is no written contract regarding his employment with M/s Style India. He has further admitted that he had left the services of M/s Style India after the accident and thereafter joined M/s Softex, RZ555/22, Tughlakabad Extn, New Delhi as a tailor. He has also admitted that both the firms i.e. M/s Softex and M/s Style India are proprietorship firms of Mr Ejaj Kamal. He has further admitted that no appointment letter was issued to him either by M/s Style India or M/s Softex. The petitioner has not examined any official from M/s Style India nor has got examined Mr Ejaj Kamal who is proprietor of the said firm to prove his avocation, monthly earnings, leave taken from office or attendance record. Keeping in view the overall facts and circumstances of the case and the documents filed on record as well Suit No. 382/10 & 474/10 Page 13 of 21 as the nature of injuries suffered by the petitioner which resulted in his hospitalization, I am of the opinion that a lumpsum amount of Rs. 20,000/ under this head would be sufficient to meet the ends of justice.
15. In view of the above discussions, the total compensation to which the petitioner is entitled to now comes as under :
1. Compensation for medical expenses: Rs. 5,017/
2. Compensation for conveyance: Rs. 5,000/
3. Compensation for special diet & attendant charges: Rs.10,000/
4. Compensation for loss of income: Rs.20,000/
5. Compensation for pain, sufferings and loss of amenities of life: Rs.30,000/ Total Rs.70,017/ RELIEF IN PETITION NO. 382/10 :
16. In view of the aforesaid discussions, it is hereby held that petitioners are entitled to a sum of Rs.70,017/ (Rupees Seventy Thousand and Seventeen Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any, from the date of filing the petition i.e. 31.07.2010 till the notice under Order 21 Rule 1 CPC is given by the respondents, in favour of the petitioner and against the respondents on account of their liability being joint and several.
Suit No. 382/10 & 474/10 Page 14 of 21
ISSUE NO. 2 IN PETITION NO. 474/10 :
17. The petitioner, Mohd. Umar has claimed a total compensation of Rs.5,00,000/ as compensation on account of the injuries suffered by him in this accident. Let me now assess the award amount to be given to the petitioner under different heads:
COMPENSATION FOR MEDICAL EXPENSES:
18. The petitioner has filed on record his original medical bills, Ex.PW2/2 (Colly). The total of the said original medical bills filed on record comes out to be Rs.8,552/. Accordingly, I hereby award a sum of Rs.8,552/ towards medical expenses keeping in view the nature of injuries suffered by petitioner in this accident.
COMPENSATION FOR PAIN, SUFFERINGS AND LOSS OF AMENITIES OF LIFE:
19. Let me now assess the compensation to be paid to the petitioner for pain, sufferings and loss of amenities of life. It is settled law that a particular amount can not be fixed for pain and sufferings for all the cases as it varies from case to case. As per the medical record of the petitioner i.e. MLC, Ex. PW1/6, issued from JPN Apex Trauma Centre, AIIMS Hospital, New Delhi, the doctor examining the petitioner after the accident has opined about the nature of injuries suffered by the petitioner to be grievous. As per the Discharge Suit No. 382/10 & 474/10 Page 15 of 21 Summary issued from Safdarjung Hospital, New Delhi, the petitioner, Mohd. Umar was admitted in the said hospital on 12.08.2009 and was discharged on 20.08.2009 and was diagnosed with fracture of his right thigh. He was also admitted in the Ortho Emergency and was immediately taken up for fixation of fracture and had also undergone operation. He was also advised not to put weight on his right lower limb at the time of his discharge and was advised for review in Ortho OPD on 27.08.2009. Judicial notice can also be taken on the fact that since the petitioner had suffered grievous injuries, he must have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy doses of anti biotic etc. and also might have remained without movements of his body for a period of time. Keeping in view the guidelines passed by the Hon'ble High Court and keeping in view the nature of injuries suffered by the petitioner due to this accident, I am of the opinion that a sum of Rs.40,000/ as compensation towards pain, sufferings and loss of amenities of life would be sufficient to meet the ends of justice.
COMPENSATION FOR CONVEYANCE:
20. The learned counsel for the petitioner has claimed compensation for expenses incurred by the petitioner on Suit No. 382/10 & 474/10 Page 16 of 21 conveyance. Though, there is no cogent evidence on record regarding the amount spent by him on conveyance but keeping in mind the fact that the petitioner had suffered grievous injuries and was hospitalized and has also visited the hospital number of times for his treatment, I am of the opinion that a sum of Rs.10,000/ as compensation on account of conveyance will meet the ends of justice.
COMPENSATION FOR SPECIAL DIET & ATTENDANT CHARGES:
21. The learned counsel for the petitioner has claimed compensation for expenses incurred by the petitioner on special diet & attendant charges for early recovery of the petitioner. Though, there is no cogent evidence on record regarding the amount spent by the petitioner on special diet and attendant charges but keeping in mind the fact that the petitioner had suffered injuries and he would have spent some amount on special diet & attendant charges during her treatment, I am of the opinion that a sum of Rs.10,000/ as compensation on account of special diet & attendant charges will meet the ends of justice.
COMPENSATION FOR LOSS OF INCOME:
22. The petitioner, Mohd. Umar has claimed in para 03 of his Suit No. 382/10 & 474/10 Page 17 of 21 evidence affidavit, Ex.PW2/A that he is a tailor and was doing work on contract basis with M/s Style India, A35, Sector7, Noida, UP and was earning a sum of Rs.11,200/ per month and has also averred in para 07 of his evidence affidavit that he has suffered loss of income due to this accident. PW2, Mohd Umar has admitted during his crossexamination on 23.04.2012 that he was working with M/s Style India for about 1½ month prior to the accident. He has also admitted that he has left the services of M/s Style India on his own after the accident and at present he is working with a Fabricator at TA174, Tughlakabad Extn, New Delhi as a Tailor on daily wages. He has further admitted that he has not done any course, diploma or degree in tailoring. The petitioner has not examined any official from M/s Style India nor has got examined Mr Ejaj Kamal who is proprietor of the said firm to prove his avocation or monthly earnings. Keeping in view the overall facts and circumstances of the case and the documents filed on record as well as the nature of injuries suffered by the petitioner which resulted in his hospitalization, I am of the opinion that a lumpsum amount of Rs.20,000/ under this head would be sufficient to meet the ends of justice.
23. In view of the above discussions, the total compensation to which the petitioner is entitled to now comes as under : Suit No. 382/10 & 474/10 Page 18 of 21
1. Compensation for medical expenses Rs. 8,552/
2. Compensation for conveyance Rs.10,000/
3. Compensation for special diet & attendant charges Rs.10,000/
4. Compensation for loss of income: Rs.20,000/
5. Compensation for pain, sufferings and loss of amenities of life: Rs.40,000/ Total Rs.88,552/ RELIEF IN PETITION NO. 474/10 :
24. In view of the aforesaid discussions, it is hereby held that petitioners are entitled to a sum of Rs.88,552/ (Rupees Eighty Eight Thousand Five Hundred and Fifty Two Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any, from the date of filing the petition i.e. 31.07.2010 till the notice under Order 21 Rule 1 CPC is given by the respondents, in favour of the petitioner and against the respondents on account of their liability being joint and several.
APPORTIONMENT OF LIABILITY:
25. The respondent No. 2, being the insurer of the offending vehicle at the time of accident, is jointly and severally liable with the other respondent who is the drivercumowner of the offending vehicle. Accordingly, the respondent No. 2 i.e. M/s ICICI Lombard General Insurance Company is directed to deposit the award amount Suit No. 382/10 & 474/10 Page 19 of 21 within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
26. In terms of the directions passed by the Hon'ble High Court of Delhi in its latest judgment titled as "Amod Kumar Ray & Ors Vs Raj Kumar Chauhan & Ors" {CM(M) 649/2011 decided on 25.05.2011}, the Insurance Company is directed to deposit the award amount in the State Bank of India, District Courts Saket, New Delhi in the name of the petitioners in terms of the award and shall also file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the Insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The Insurance Company shall also file a copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
27. The copy of this award be given to the Insurance Company as well as to the petitioners free of cost. The petitioners shall approach the State Bank of India, District Court of Saket, New Delhi for opening the account. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners.
Suit No. 382/10 & 474/10 Page 20 of 21
28. A copy of this order be also sent to the DCP, South East to look into the conduct of IO/ SI Rajiv Ranjan, No. D410, PS Jaitpur regarding his callous investigations in FIR No. 61/10, PS Jaitpur and his false statement dated 19.07.2011 in the Court of Ms Mona Tardi Kerketta, MM, SE, Saket Court, New Delhi about complainant not residing at his given address i.e. E119, Lal Kuan, Badarpur, New Delhi.
29. Put up for compliance report to be filed by the Insurance company on 01.03.2014. The petitions stand allowed and disposed off accordingly. The inquiry file be consigned to record room after completion of necessary formalities.
Announced in the open court (PREM KUMAR BARTHWAL) on 02.01.2014 PO: MACT(SE01), SAKET COURT NEW DELHI Suit No. 382/10 & 474/10 Page 21 of 21