Delhi District Court
Vipin Dagar vs . Sudhir Phogat on 23 April, 2018
Vipin Dagar vs. Sudhir Phogat
IN THE COURT OF SHRI SAMEER BAJPAI : PRESIDING OFFICER :
MACT : SOUTH DISTT. SAKET COURTS : NEW DELHI
Suit No. : 75522/16
Vipin Dagar
S/o Sh. M L Dagar
R/o H. No. 180B, Maidan Garhi,
New Delhi
...... Petitioner
Versus
1. Sudhir Phogat
S/o Sh. Rameshwar Singh Phogat
R/o 421/3, Chattarpur Ext.
Mehrauli, New Delhi (Driver)
2. Murari Lal
S/o Shri Chand
R/o H. No. 180B, Maidan Garhi,
New Delhi (Owner)
3. National Insurance Co. Ltd.
Flat No. 101106, N1 BMC House,
Cannaught Place, New Delhi (Insurer)
......Respondents
Date of Institution : 09.09.2015
Date of reserving of judgment/order : 23.04.2018
Date of pronouncement : 23.04.2018
Suit No. : 75522/16 Page No. 1 of 15
Vipin Dagar vs. Sudhir Phogat
J U D G M E N T :
1. By this judgment I shall dispose of the claim petition filed by the petitioner Vipin Dagar for the injuries sustained by him in a road accident on 25.01.2015. It is stated that on the unfortunate day of 25.01.2015 the petitioner was coming from Jonapur village by a Maruti Swift Dzire car bearing no. DL 3C BV 8433 being driven by respondent no.1 Sudhir Phogat who took a wrong side of the road due to which the offending car met with an accident with another vehicle (Honda Accord car) bearing no. DL 2C M 5193. As a result, the petitioner sustained injuries. He was taken to Fortis Hospital, Vasant Kunj where his MLC bearing no. 3084/15 was prepared. It is further stated that the respondent no.1 was solely responsible for this unfortunate accident as the offending vehicle was being driven rashly and negligently in contravention of traffic rules and regulations by the respondent no.1. It is further stated that the offending vehicle was being driven by respondent no.1 with the consent and control of respondent no.2, who is also vicariously responsible for tort committed by the respondent no.1. The offending vehicle was insured with respondent no.3.
2. A Detailed Accident Report (DAR) was also filed by SHO police station Fatehpur Beri. Same was tagged with the claim petition.
3. All the respondents have their written statements taking the general defences. Respondent no.3 admitted that the alleged offending vehicle was insured with it vide policy no. 35101031146135182638 for the period from 26.08.2014 to 25.08.2015.
Suit No. : 75522/16 Page No. 2 of 15Vipin Dagar vs. Sudhir Phogat
4. Following issues were framed vide order dated 09.09.2015 :
1. Whether petitioner Vipin Dagar and Tushar Arora sustained injuries in a road accident on 25.01.2015 at about 11.50 PM at Mandi Road near Gyan Kunj School, Jonapur, Delhi due to rash and negligent driving of the vehicle bearing no. DL 2C M 5193 being driven by Sudhir Phogat, owned by Murari Lal and insured with National Insurance Company Ltd.? .... (OPP.)
2. To what amount of compensation the petitioner is entitled and from whom? ..... (OPP.)
3. Relief.
5. In the present case injured Tushar Arora had appeared in the Court and gave the statement on 16.09.2016 that he does not want any claim from this Court. Therefore, his claim was dismissed vide order dated 16.09.2016.
6. Petitioner examined himself as PW1. He tendered in evidence his affidavit Ex.PW1/1 and relied upon the documents Ex.PW1/A to Ex.PW1/H.
7. Sh. Prakash Sahu, Medical Record Clerk, Saket City Hospital was examined as PW2. He has brought the attested copy of medical bills Ex.PW2/A (colly.).
8. Dr. Vijay Kumar, Consultant, Urology, Saket City Hospital was examined as PW3. He has brought the discharge summary of the petitioner Vipin Dagar which is already Ex.PW1/D (34)(f).
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9. Respondents did not examine any witness.
I S S U E No. 110. Needless to say that for making someone entitled U/s 166 of the Motor Vehicle Act, negligence of the driver of the offending vehicle needs to be proved and to prove the same the Tribunal need not go into the technicalities because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just, rational and reasonable on the basis of enquiry. It is an admitted legal position that the negligence on part of the driver with respect to use of the vehicle needs to be established and the same is to be established on the principle of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III (2015) ACC 435 Delhi.
PW1 has stated that on 25.01.2015 at about 11:50/55 PM he was coming from Jonapur village by Maruti Swift Dzire car bearing no. DL 3C BV 8433 being driven by the respondent no.1 Sudhir Phogat, who was driving it in a rash and negligent manner. He took the said vehicle in wrong side of the road and suddenly one car (Honda Accord) bearing no. DL 2C M 5193 came from front side and the accident happened. He sustained injuries. He was taken to Fortis Hospital, Vasant Kunj where his MLC bearing no. 3083 was prepared. He further stated that the accident was caused due to rash and negligent driving by the respondent no.1. During crossexamination he stated that the vehicle in which he was travelling belongs to his father Mr. M L Dagar. He borrowed the vehicle in which he was travelling Suit No. : 75522/16 Page No. 4 of 15 Vipin Dagar vs. Sudhir Phogat from his father to attend a marriage. He further stated that thereafter, Sudhir took the vehicle with his permission to attend the marriage. The accident took place when they were returning from the marriage from Jaunapur, New Delhi. He admitted that the accident took place due to rash and negligent driving by Sudhir Phogat. He further stated that he was sitting on the front seat beside driver. Only he and Sudhir were there in the vehicle. The accident took place around 1111.30 PM. He admitted that the vehicle in which he was travelling went on the wrong side and hit the other vehicle (Honda Accord) bearing no. DL 2C M 5193. Perusal of DAR shows that the case was registered on the statement of other injured Tushar Arora. He has categorically stated that the offending vehicle came on the wrong side of the road and hit his car bearing no. DL 2C M 5193. Site plan also corroborates the testimony of PW1. Even the charge sheet has been against the respondent no.1. No other version of accident has come on record except the one narrated by PW1. In view of the above discussion it is established on record that Vipin Dagar sustained injuries in a road accident on 25.01.2015 at about 11.50 PM at Mandi Road near Gyan Kunj School, Jonapur, New Delhi due to rash and negligent driving of vehicle bearing no. DL 2C M 5193 by the respondent no.1, owned by respondent no.2 and insured with respondent no.3.
I S S U E No. 211. The petitioner has claimed compensation in respect of the injuries sustained by him. In a road accident a person is entitled to compensation for the pecuniary and nonpecuniary damages.
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12. Let me assess the compensation which the claimant is entitled for under different heads :
MEDICAL EXPENSES :
13. On the direction of the Tribunal, ld. counsel for the petitioner has filed summary of all the medical bills in different heads totalling to Rs. 35,39,061/. Out of these bills some bills for Rs. 7,65,800/ are towards Health Care at Home for which ld. counsel for the insurance company has some objection. These bills show that the petitioner took packages for health care assistant and physiotherapy and these bills should be covered under the head of medical expenses. Further, all the bills totalling to Rs. 7,65,800/ for health care assistance and physiotherapy appear to be genuine. Therefore, I award Rs. 35,39,100/ to the petitioner towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
14. As per the discharge summary the petitioner was diagnosed with Polytrauma (RTA) with splenic infarct with Abdominal Hematoma, Sepsis (MDR Acinetobacter) AKI, Rt. PUJ calculi, LRTI, B/L Pleural effusion, Fracture left acetabular, iliac bone. He remained hospitalised in Batra Hospital from 26.01.2015 to 25.02.2015. He was again hositalised in Saket City Hospital from 25.02.2015 to 26.03.2015, 01.06.2015 to 03.06.2015, 03.08.2015 to 08.08.2015, 30.08.2015 to 06.09.2015 and 01.12.15 to 02.12.2015. He has suffered disability to the extent of 43% in relation to his Left Lower Limb. Having regard to the injuries, treatment and disability of the petitioner, I award him Suit No. : 75522/16 Page No. 6 of 15 Vipin Dagar vs. Sudhir Phogat Rs. 1,00,000/ towards pain and sufferings and enjoyment of life.
SPECIAL DIET, ATTENDANT AND CONVEYANCE CHARGES :
15. The injuries on the person of the petitioner were such that he must have been advised special diet for his early recovery. He must have taken help of an attendant for his daily routine. The medical record shows that he visited the hospital as an OPD patient. Therefore, looking into all the facts, I award Rs. 10,000/ to the petitioner towards special diet and Rs.20,000/ towards attendant and Rs. 10,000/ towards conveyance charges. So, the total award under this head comes to Rs. 40,000/.
LOSS OF INCOME / FUTURE INCOME :
16. The petitioner has stated that at the time of accident he was working with M/s R.D. Construction & Developers as a Supervisor and drawing Rs. 22,000/ p.m. Due to the accident he has been totally deprived from his salary from January, 2015 to till date. He has placed on record his salary certificate Ex.PW1/F. During crossexamination he stated that he is not an income tax payee. He denied the suggestion that the salary certificate placed on record by him is false and fabricated and is just to take advantage from the insurance company.
He further stated he used to get salary of Rs. 22,000/ p.m. in cash. He further stated that he does not know whether his employer show his salary in his balance sheet or not. As per the salary certificate Ex.PW1/F the petitioner was drawing salary of Rs. 22,000/ p.m. He had worked there for the period from 01.06.2014 to 25.01.2015 and Suit No. : 75522/16 Page No. 7 of 15 Vipin Dagar vs. Sudhir Phogat after 25.01.2015 he had not joined the office. So, this Tribunal has no option but to take the salary of the petitioner as Rs. 22,000/ p.m. As per the disability certificate the petitioner has suffered 43% permanent physical impairment in relation to his Left Lower Limb. He has stated that due to the disability he would not be able to do work of same nature as it was a field work at construction site and it needs more movement on stairs. It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" that in the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. Reference was also made of the case "Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343". In the present case the petitioner was working as a Supervisor which is a field job and needs more frequent movement. Balancing the whole facts and circumstances, I take functional disability of the petitioner as 30%. As per the Aadhar card the date of birth of the petitioner is 31.07.1986. The accident took place on 25.01.2015. Therefore, he was 29 years of age at the time of accident. Taking a multiplier of '17', the future loss of income comes to Rs. 22,000 x 12 x 17 x 30% = Rs. 13,46,400/. I therefore, award Rs.13,46,400/ to the petitioner towards Loss of Income/Future Income on account of permanent disability.
LOSS OF AMENITIES :
17. Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his daily life to pursue his talents, recreation interest, hobbies and evocations. The injuries would also Suit No. : 75522/16 Page No. 8 of 15 Vipin Dagar vs. Sudhir Phogat have an affect on his social life. I therefore, award Rs. 75,000/ to the petitioner towards loss of amenities.
18. Thus, the total compensation awarded in favour of the petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 35,39,100/
PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 1,00,000/
SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 40,000/
LOSS OF INCOME/FUTURE INCOME : Rs. 13,46,400/
LOSS OF AMENITIES : Rs. 75,000/
============
TOTAL : Rs. 51,00,500/
============
L I A B I L I T Y
19. As the offending vehicle was being driven by respondent no. 1, primary liability to compensate the petitioner remains with respondent no. 1.
Since the vehicle was owned by respondent no.2, so, he is vicariously liable to compensate the petitioner. It is an admitted position on record that the vehicle was insured with respondent no.3, therefore, respondent no.3 is contractually liable to compensate the petitioner.
20. Issue No. 2 is decided in favour of the petitioner and against the respondent no.3.
R E L I E F
21. In view of my findings, I award Rs. 51,00,500/ (Rs. Fifty One Lakh Five Hundred only) to the petitioner as compensation alongwith interest @9% per annum from the date of filing the DAR till its Suit No. : 75522/16 Page No. 9 of 15 Vipin Dagar vs. Sudhir Phogat realisation.
In the present case the petitioner was examined. He stated that he had taken loan of around Rs. 40 lakh from his relatives for his treatment and he has to repay the same. He further stated that if the award is passed in his favour major amount be released to him and some amount may be kept in the form of fixed deposit.
Since the petitioner has spent around Rs. 35,00,000/ on his medical bills, out of the awarded amount, a sum of Rs. 16,00,000/ is directed to be kept in the form of fixed deposit in the following phased manner :
1. Rs. 2,00,000/ for a period of 01 year.
2. Rs. 2,00,000/ for a period of 02 years.
3. Rs. 2,00,000/ for a period of 03 years.
4. Rs. 2,00,000/ for a period of 04 years.
5. Rs. 2,00,000/ for a period of 05 years.
6. Rs. 2,00,000/ for a period of 06 years.
7. Rs. 2,00,000/ for a period of 07 years.
8. Rs. 2,00,000/ for a period of 08 years.
The petitioner may get the rest of the amount released as and when required. It is made clear that the rest of the amount will be released to the petitioner only from the personal account of his bank i.e. from State Bank of India, JBlock, Saket branch, New Delhi.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
22. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India Suit No. : 75522/16 Page No. 10 of 15 Vipin Dagar vs. Sudhir Phogat has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
23. As per orders of Hon'ble High Court in case titled "New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as "Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimant.
24. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, respondent no.3 is directed to deposit the awarded amount in favour of the petitioner with State Bank of India, Saket Courts Complex Branch, against account of petitioner.
within a period of 30 days from today, failing which respondent no.3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
25. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :
1. The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of their saving bank account with State Bank of India, Saket Court Branch, New Delhi.
2. Withdrawal from the aforesaid account shall be permitted to Suit No. : 75522/16 Page No. 11 of 15 Vipin Dagar vs. Sudhir Phogat petitioner/claimant after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
3. No cheque book be issued to petitioner/claimant without the permission of this Court.
4. The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioner/claimant alongwith the photocopy of the FDR's .
5. The original fixed deposit receipts shall be handed over to petitioner/claimant at the end of the fixed deposit period.
6. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
7. Half yearly statement of account be filed by the Bank in this Court.
8. On the request of petitioner/claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
9. Petitioner/claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
10. The bank is also directed to get the nomination form filled by the claimant at the time of preparation of FDRs.
11. The bank is also directed to keep the money received from the respondents in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
12. The Manager of SBI, Saket Court branch is directed to release only 10% of the awarded amount to the petitioner in this branch as and when required by the petitioner. It is clarified that all the amount including the maturity amount of FDRs shall be credited to the personal account of the petitioner, the details of which has been given by him to the Tribunal. The petitioner shall produce the same details / passbook of his bank to the Manager, SBI Saket Court branch. In this particular case, the amount shall be credited to the personal account of the petitioner in State Bank of India, JBlock, Saket branch, New Delhi through RTGS or any other appropriate electronic mode.
Suit No. : 75522/16 Page No. 12 of 15Vipin Dagar vs. Sudhir Phogat DIRECTIONS FOR THE RESPONDENT No. 3
26. The Respondent no.3 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
27. The Respondent no.3 is directed to furnish a copy of this award alongwith the cheque of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant/petitioner in whose favour the award has been passed.
28. The Respondent no.3 shall intimate the claimant/petitioner about its having deposited the cheque in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
29. Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after his having received the notice of the deposit of awarded amount by the respondent no.3.
30. Copy of this Award / Judgment be given to the parties for compliance.
31. The case is now fixed for compliance by the respondent no.3 for 23.05.2018.
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32. FormIV of the Modified Claims Tribunal Agreed Procedure to be mentioned in the Award is as under :
1 Date of the accident 25.01.2015 2 Date of intimation of the accident by the 27.01.2015 Investigating Officer to the Claims Tribunal 3 Date of intimation of the accident by the Not available Investigating Officer to the insurance company 4 Date of filing of Report u/s 173 Cr.P.C. Not available before the Metropolitan Magistrate 5 Date of filing the Detailed Accident Report 18.04.2015 (DAR) by the Investigating Officer before Claims Tribunal 6 Date of service of DAR on the insurance 18.04.2015 company 7 Date of service of DAR on the claimant 18.04.2015 8 Whether DAR was complete in all Yes respect?
9 If not, state deficiencies in the DAR N.A. 10 Whether police has verified the documents Yes filed with DAR 11 Whether there was any delay or deficiency No on the part of the Investigating Officer? If so, whether any action/direction warranted?
12 Date of appointment of the Designated N.A. Officer by the insurance company.
13 Name, address and contact number of the N.A. designated officer of the insurance company.
14 Whether the designated officer of the No insurance company submitted his report within 30 days of the DAR?Suit No. : 75522/16 Page No. 14 of 15
Vipin Dagar vs. Sudhir Phogat 15 Whether the insurance company admitted No the liability? If so, whether the designated officer of the insurance company fairly computed the compensation in accordance with law.
16 Whether there was any delay or deficiency No on the part of the designated officer of the insurance company? If so, whether any action/direction warranted 17 Date of response of the claimant(s) to the No offer was given by offer of the insurance company. the insurance company. 18 Date of the award 23.04.2018 19 Whether the award was passed with the No consent of the parties?
20 Whether the claimant(s) examined at the Petitioner was time of passing of the award to ascertain examined. Financial his/their financial condition? condition was asked from the petitioner.
21 Whether the photographs, specimen Yes signatures, proof of residence and particulars of bank account of the injured/legal heirs of the deceased taken at the time of passing of the award?
22 Mode of disbursement of the award Some amount is amount to the claimant (s). directed to be released and some amount is kept in the fixed deposit.
23 Next date for compliance of the award. 23.05.2018
Announced in the Open Court
on 23rd day of April, 2018 (SAMEER BAJPAI)
Presiding Officer : MACT (S)
Saket Courts New Delhi
23.04.2018
Suit No. : 75522/16 Page No. 15 of 15