Delhi District Court
Vijay Kumar Dahiya vs Sachin Garg And Others on 19 May, 2023
IN THE COURT OF SAMAR VISHAL
PRESIDING OFFICER : MOTOR ACCIDENT CLAIMS
TRIBUNAL, EAST DISTRICT : KARKARDOOMA COURTS
DELHI
CNR No.: DLET01-001148-2014
MACP No.153/2016
Vijay Kumar Dahiya versus Sachin Garg and others
In the matter of :
Vijay Kumar Dahiya (Injured)
S/o Late Jagdish Singh Dahiya,
R/o H.No. B-27, Ganesh Nagar,
Gali No. 3, Pandav Nagar Complex,
New Delhi - Petitioner
Versus
1. Sachin Garg (Driver)
S/o Anil Garg,
R/o KE-91, Kavi Nagar
Police Station : Kavi Nagar
2. DSKY Technology Pvt. Ltd. (Owner)
G-7, Ground Floor, Sector 63,
Bisrakh, Noida, Uttar Pradesh
3. ICICI Lombard General Ins. Co. Ltd.(Insurer)
Noida, District Gautam Budh Nagar,
Uttar Pradesh - Respondents
Date of institution : 16.10.2014
Final arguments heard : 19.05.2023
Date of Award : 19.05.2023
MACP No.153/2016
Vijay Kumar Dahiya versus Sachin Garg and others Page 1 of 11
AWAR D
1. By this award, I shall decide a claim petition under section 166/140 of Motor Vehicles Act, 1988, filed by the petitioner Vijay Kumar Dahiya with respect to the injuries caused to him in a motor vehicle accident which took place on 29.03.2014, at around 11:00 PM in the night. The petitioner Vijay Kumar Dahiya was going on his motorcycle registration No. DL7S-AS- 2208. When he reached near Vaishali Metro Station, Sector-5, a car registration No. UP 16-AR-2077, driven by its driver respondent no. 1 Sachin Garg at a high speed and in a rash and negligent manner hit his motorcycle. Due to this accident, he suffered multiple fractures in both legs. His motorcycle was completely damaged. He was medically treated in Pushpanjali Crosslay Hospital and then Ram Lal Kundal Lal Hospital Patparganj. He remained in Pushpanjali hospital from 30.03.2014 to 02.04.2014 as per his petition. He has claimed Rs.10,00,000/- as compensation.
2. The respondents no. 1 & 2, the driver and owner of the offending car have filed a joint reply and taken the defence that the respondent no. 1 was not responsible for the accident. The driver had valid licence at the time of accident and the vehicle was duly insured with respondent no. 3 insurance company. The respondent no.3 insurance company - ICICI Lombard General Ins. Co. Ltd. has taken the general defences.
3. On the basis of the pleadings of the parties following issues were framed on 25.11.2016 :-
(i) Whether the petitioner has suffered injuries in road side accident on 29.03.2014 involving vehicle i.e. Truck bearing MACP No.153/2016 Vijay Kumar Dahiya versus Sachin Garg and others Page 2 of 11 registration No. UP 16AR 2077 being driven allegedly in a rash and negligent manner by R-1?
(ii) To what amount of compensation, if any, the petitioner is entitled to and from whom?
(iii) Relief?
4. In order to establish his claim, petitioner Vijay Kumar Dahiya apart from himself has examined five more witnesses related to his salary and medical treatment. The respondents did not lead any evidence.
5. The issues are decided as follows-
6. As far as issued no. 1 is concerned, it relates to the negligence of the offending vehicle, which was car registration no. UP 16AR 207, though it has been inadvertently mentioned as a truck in this issue. Petitioner is not only the injured but also witnessed the accident and as PW1 proved that the accident happened due to rash and negligent driving of the respondent no.1 Sachin Garg. There is no contrary evidence from the driver to controvert this evidence nor is there anything in the cross examination of the petitioner to discredit him or to impeach his credibility. The medical records show the nature of injuries suffered by him were grievous in nature. This is also proved by his disability certificate Ex.PW1/5 showing 35% disability in right lower limb.
7. After investigation, the police filed the chargesheet against respondent no.1 the driver of the car. Filing of chargesheet against the driver of offending vehicle prima faice points to his culpability. (New India Assurance Company Ltd vs Smt. Washeema Bano (2022) SCC OnLine All 403 and Mangla Ram vs Oriental Insurance Company Ltd (2018) 5SCC 656). In New India Assurance Company Ltd vs Pazhaniammal MACP No.153/2016 Vijay Kumar Dahiya versus Sachin Garg and others Page 3 of 11 (2011) (2) KLT 648, the Hon'ble High Court of Kerala has held that as a general rule, it can be accepted that production of chargesheet is prima facie sufficient evidence of negligence for the purpose of claim under section 166 MV Act. If any party do not accept such chargesheet, the burden must be on such party to adduce evidence. If the Tribunal feels that chargesheet is collusive, it can record that chargesheet cannot be accepted and call upon the parties at any stage to adduce oral evidence of accident and alleged negligence. In such cases, issue of negligence must be decided on other evidence ignoring the chargesheet.
8. In view of above, on the basis of preponderance of probabilities of evidence, it is proved that Vijay Kumar Dahiya sustained grievous injuries due to rash and negligent act of respondent no.1 Sachin Garg, the driver of the offending car. Accordingly, this issue is decided in favour of the petitioner and against the respondents.
9. Issue no. 2 & 3 are related to the quantum of compensation and the relief. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. The compensation should not be a windfall or a bonanza nor it should be pittance.
10. The case of Raj Kumar vs Ajay Kumar & Another (2011) 1 SCC 343, is one of the most prominent judgments of the Hon'ble Supreme Court which deals with compensation in injuries cases. It was held in this case that in routine personal injury cases, compensation will be awarded only under the heads-(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured , comprising (a) Loss of earning during the period MACP No.153/2016 Vijay Kumar Dahiya versus Sachin Garg and others Page 4 of 11 of treatment and (iv) Damages for pain, suffering and trauma as a consequence of the injuries. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation is also to be done under the head of loss of future earnings which would depend the effect and impact of such permanent disability on the earning capacity of the injured. The tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. What requires to be assessed by the tribunal is the effect of the permanent disability on the earning capacity of the injured after assessing the loss of earning capacity in terms of percentage of the income. It has to be quantified in terms of money to arrive at the future loss of earnings by applying standard multiplier method. All injuries or permanent disabilities arising from injuries do not resulting loss of earning capacity. If there is no loss of employment or earning capacity, there may not be any need to award any compensation under the head of loss of future earnings, though he may be awarded compensation under the head of loss of amenities in consequent to his injuries. Now, in the present case, the injured Vijay Kumar Dahiya has suffered fracture in his lower limbs which caused permanent locomotor disability of 35%. Dr. Deepankar Verma had not commented on the functional disability of the petitioner. Therefore on the basis of the injuries to the petitioner, the compensation is awarded to him under the aforesaid heads as follows -
MEDICAL EXPENSES:
11. Petitioner has stated in his evidence affidavit that after his accident, he remained hospitalised in Pushpanjali Crosslay Hospital from 30.03.2014 to 02.04.2014. He was again admitted in Ram Lal Kundan Hospital from 02.02.2017 to 04.02.2017. He has placed on record numerous bills, the MACP No.153/2016 Vijay Kumar Dahiya versus Sachin Garg and others Page 5 of 11 final of sum of which has been provided by him during final arguments as Rs.2,90,231/-. This has not been controverted by the counsel for the respondents. Under this head, the actual medical bills are reimbursed. Therefore, on the basis of the calculation provided by the petitioner, I award Rs.2,90,231/- to him under this head.
PAIN AND SUFFERING:
12. After the accident, petitioner remained in hospital for around six days.
The petitioner has suffered grievous injuries in this case and also disability. He has an implant in his leg. The nature of injuries and the disability suffered by him, is a clear proof of the amount of pain and suffering, he must have endured in that accident. Accordingly, I find it appropriate to grant a sum of Rs.1,00,000/- to the petitioner under this head.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
13. The petitioner has claimed in his evidence affidavit that he has spent Rs. Ten lakhs for his medical treatment, conveyance, attendant charges and diet etc. but he has not given the break up of the same. He has also not placed on record any proof in this regard. In the given facts and circumstances of the case, I deem it fit to grant Rs.10,000/- each to petitioner as conveyance and special diet charges.
14. Though no evidence has been led to show that petitioner had hired any attendant during his treatment but it cannot be ignored that family members of petitioner had to render their services for providing assistance to the petitioner for his routine activities and that would definitely suffer their work/job. For claiming compensation, necessity of employing a professional attendant/ care taker is not required and the petitioner should be compensated for the value of services of the family members, which has MACP No.153/2016 Vijay Kumar Dahiya versus Sachin Garg and others Page 6 of 11 been or would be necessitated by the wrong doing of the driver. ( DTC & Ors Vs. Lalita, 1983 ACJ 253). Therefore, the petitioner is awarded a sum of Rs.10,000/- as attendant charges.
15. Thus, petitioner is granted a total compensation of Rs.30,000/- (10,000+10,000+10,000) under this head.
LOSS OF INCOME DURING TREATMENT :
16. Petitioner has claimed that he was working with Prithvi Prop Mart Pvt Ltd as Sales Manager, at a salary of Rs.20,000/- per month. To show this, he brought Arun Kumar Chaudhary PW-2. According to his evidence, the salary was given to the petitioner in cash. The petitioner has further claimed that he had a truck in his name from which he used to earn Rs.50,000/- per month. He has also stated that he was paying Rs.27,000/- per month as installment of loan for this truck. The evidence given by the petitioner show that his income will therefore be Rs.70,000/-. This income will be taxable income but the petitioner by his own admission in cross examination did not pay any income tax. He has further shown an EMI of Rs.27,000/- which has to be deducted from his income, making his income as Rs.43,000/-. The witness brought from the employer does not inspire confidence as there is no record of this salary on the ground that the salary was paid in cash. Further, there is no evidence of any income from the truck which he allegedly possess nor any evidence of the EMIs which he might be paying. Therefore, these factors does not show that the income of petitioner was as alleged by him. Where a petitioner is not able to prove his income, his notional income can be assessed as minimum wages. (Manusha Sreekumar and Others vs United India Insurance Company Ltd. Civil Appeal No. 7593/2022 dated 17/10/2022-Supreme Court-2022 LiveLaw(SC) 858). The minimum wages of State of Delhi at the time MACP No.153/2016 Vijay Kumar Dahiya versus Sachin Garg and others Page 7 of 11 accident (29.03.2014) was Rs.8554/- for un-skilled category. In cases like the present one, where it appears that the injured may be earning more than minimum wages some guess work is also permissible (United India Insurance Company Ltd vs Satinder Kaur (2011) 11 SCC 780). Therefore in the overall facts and circumstances of the case, the notional income of the petitioner is fixed as Rs.20,000/- for the purpose of assessment of his income in this case which he has proved to be his income from his job. His hospitalization was for around six days. The petitioner has stated that he was unable to work for around one year but again there is no evidence to support this. But it is not difficult to presume that in case of fracture he must have been disabled from work for a least three months as this would have been the minimum time to heel his wound. Therefore, I award Rs.20,000/-(20,000x3) as compensation under this head. Therefore, his loss of income for three months is calculated as Rs.60,000/-.
LOSS OF FUTURE INCOME DUE TO PERMANENT DISABILITY.
17. The next question that remains to be decided is the compensation with respect to the disability of the petitioner. Under this head, it has to be seen that what could be the future loss of income on account of disability. The disability certificate Ex.PW1/5 clearly shows that the petitioner is the case of 35% permanent disability due to fracture in relation to his right lower limb. The doctor has been examined who has stated that he cannot comment about overall functional disability of the petitioner. On account of disability, patient would face some difficulty in ankle movement and knee joint. Due to this, petitioner would face problem in walking, running and climbing stairs. Patient can drive two wheeler or four wheeler without much problem. The petitioner has not narrated how this disability will come in way of reducing the efficiency of the work in which the petitioner MACP No.153/2016 Vijay Kumar Dahiya versus Sachin Garg and others Page 8 of 11 is engaged. The petitioner has alleged himself as a sales manager in real estate company. But because the petitioner has 35% disability due to fracture in left lower limb, it is not difficult to assume that this disability will affect his day-to-day life and profession. Therefore, I presume that the petitioner must have suffered at least 15% functional disability which is slightly less than half half of 35%, also in carrying on with his profession. In view of this, I believe that functional disability in relation to whole body of the petitioner must be considered as 15% for the purpose of assessing corresponding loss of income of petitioner. On the basis of his income taken as Rs.20,000/- per month, the petitioner's annual income shall be Rs.2,40,000/-.
18. The copy of Aadhar card of the petitioner shows the year of birth of petitioner as 1997, which would mean that he was around 37 years of age at the time of accident and thus, multiplier of 15 would be applicable. Further, an addition of income of injured for future prospects to the extent of 40% has to be considered as the age of the petitioner was under the age of 40 years (National Insurance Company Limited vs Pranay Sethi and others (2017) 16 SCC 680, Pappu Dev Yadav vs Naresh Kumar and others 2010 SCC online SC 752 and Sohan Lal vs. Taj Khan & Ors., 2019 ACJ 252, Rajasthan High Court). The yearly income of the petitioner has been assessed as Rs.2,40,000/-. In this after adding 40% of the future prospects amounting to Rs.96,000/-, the yearly income with future prospects will become Rs.3,36,000/-. In this, yearly income, a multiplier of 15 will make the future income as 3,36,000x15= Rs.50,40,000/-. 15% loss of income due to 15% percent functional disability will mean that the overall loss of income to the petitioner shall be 15% of Rs.50,40,000/- which will be Rs.7,56,000/. Therefore, this amount is awarded to the petitioner under this MACP No.153/2016 Vijay Kumar Dahiya versus Sachin Garg and others Page 9 of 11 head.
LOSS OF AMENITIES
19. Further, the petitioner is granted Rs.25,000/- for loss of amenities.
20. Thus, the compensation awarded to the petitioner is summarised as under:-
Sl. Head of compensation Amount
No.
1 Medical Expenses Rs.2,90,231/-
2 Pain & Sufferings Rs.1,00,000/-
3 Conveyance & Special diet Rs.20,000/-
4 Attendant charges Rs.10,000/-
Loss of Income during Rs.60,000/-
5
treatment
Loss of income due to Rs.7,56,000/-
6
permanent disability
7 Loss of Amenities Rs.25,000/-
TOTAL Rs.12,61,231/-
RELIEF:
21 In view of the findings on above points, I as presiding officer of this Tribunal award a total compensation of Rs.12,61,231/- (Rs. Twelve Lakhs Sixty-One Thousand, Two-Hundred & Thirty-One only) along with interest @ 7% per annum on the aforesaid award amount from the date of accident till realization in favour of petitioner against the respondent no.3, insurance company/ ICICI Lombard General Ins. Co. Ltd. This award is MACP No.153/2016 Vijay Kumar Dahiya versus Sachin Garg and others Page 10 of 11 required to be deposited with this Tribunal within 30 days. The interest period shall be excluded for the period from 15.10.2015 till 26.10.2021 (the date on which the evidence of petitioner was completed) in compliance of the order of this Tribunal dated 17.07.2017 as petitioner was seeking unwarranted adjournments and delaying the inquiry.
22. Form IV-B in terms of MCTAP are annexed herewith as Annexure A. Announced in the open Samar Vishal Court on 19.05.2023 Presiding Officer-MACT (East) (Total 11 pages) Karkardooma Courts, Delhi MACP No.153/2016 Vijay Kumar Dahiya versus Sachin Garg and others Page 11 of 11