Delhi District Court
Sh.Jatin Kharab vs Sh.Mukhtiar Singh on 13 July, 2011
IN THE COURT OF MS. VINEETA GOYAL: POMACT (SOUTH01)
SAKET COURTS, NEW DELHI
INJURY CASE
Suit no. : 222/07
Unique Case ID no. : 02403C0248482007
IN THE MATTER OF :
1. Sh.Jatin Kharab
S/o Sh.Joginder Kharab
R/o C491, Yojna Vihar
Delhi110092
Permanent address
Kothi No.15, First Floor
Road No.27, East Punjabi Bagh
New Delhi110026
Petitioner
Versus
1. Sh.Mukhtiar Singh
S/o SH. Buchitar Singh
R/o. Village and post Sunat
P.S. Tehsil Dehera,
Distt. Kangra, Himachal Pradesh
Also at H. No.67, Zamrudpur, P. S. Greater Kailash,
New Delhi Driver
2. Mohan Mekans Ltd.
Flat No.4B, Hansala Building
15, Barakhamba Road,
New Delhi110001 Owner
3. The Oriental Insurance Company Ltd.
16/20 WEA Padam Singh Road
Near Shastri Park, Karol Bagh
New Delhi110005 Insurer
Respondents
Suit no.222/07 Page no. 1/7
Date of institution : 25.04.2007
Date of institution
in the present court : 25.04.2007
Date of arguments : 05.07.2011
Date of order : 13.07.2011
Appearance: Sh. D. K. Panchal, counsel for petitioner
Respondent nos.1 and 2 exparte.
Ms. Shashi Bala, counsel for respondent no.3
JUDGMENT/AWARD
1. This claim petition u/s 166 & 140 of Motor Vehicle Act, 1988 (herein called the Act) was filed by petitioner for grant of compensation of Rs.25,00,000/ for injuries sustained in the road vehicular accident.
2. Sh. Jatin Kharab, aged 22 years, on 28.11.2005 at about 4.25 pm was returning back from his institute namely NIFT, then suddenly a car no. DL2CH1972 being rashly driven by the respondent no.1 came at a very high speed without giving any indication and hit the motorcycle of the petitioner, due to this impact petitioner fell on the road and received grievous injuries on his person. He was removed to AIIMS Hospital, New Delhi. An FIR no.702/05 was registered with PS Hauz Khas, for this accident.
3. In response to notice of petition, the respondent no. 1 and 2 filed a joint written statement denying the liability for accident.
4. In its written statement, insurer/respondent no.3 admitted the validity of the insurance policy for the offending vehicle for the period from 01.04.2005 to 31.03.2006 in the name of R1.
5. From the pleadings on record the following issues were framed, by the then Ld. Presiding Officer on 24.09.07: Issues:
1. Whether injuries were caused to the petitioner, Jatin Kharab due to rash and negligent driving of car bearing No.DL2CH1972 at the main gate NIFT Suit no.222/07 Page no. 2/7 College, Service Road Hauz Khas, New Delhi being driven by R1, owned by R2 and insured with R3/insurance company? OPP
2. To what amount of compensation the petitioner is entitled to and from whom?
3. Relief.
6. In order to prove his case, petitioner himself stepped into witness box as CW1 and tendered his evidence by way of affidavits as Ex.CW1/A and supported the averments made in the petition. He also proved relevant document furnished with the claim petition and also filed medical documents along with bills.
7. In defence respondent no.3 choose not to lead any evidence. It is pertinent to mention here that subsequent to framing of issues respondent nos.1 and 2 fail to appear and proceeded exparte on 21.01.2010.
8. I have heard the arguments advanced by the counsel for parties and gone through the case file and my findings on the issues are as under: Issue Nos. 1
9. The burden of proof of this issue was upon the petitioners. In order to prove this fact, the petitioner got examined himself. He, by virtue of affidavit Ex.CW1/A made statement inconsonance with the averments made in the petition. He deposed on oath that accident in question was a result of rash and negligent driving of respondent No.1 and that the respondent No.1 was responsible for the accident which occurred on 28.11.2005 at 04.PM and FIR No.702/05 PS Hauz Khas was registered. Here in the present case, no evidence whatsoever has been adduced by either of respondents to rebut the evidence adduced by petitioner. From unrebutted oral and documentary evidence, it is established from record that petitioners sustained injuries on account of negligent driving of respondent No.1. Hence, issue no.1 is decided in favour of the petitioner.
Suit no.222/07 Page no. 3/7Issue no. 2:
10. Since issue No.1 has been decided in favour of the petitioner, he is entitled to compensation as per provisions of Motor Vehicle Act. Perusal of record reveals that on account of accident, the petitioner sustained serious injuries. He was initially removed to AIIMS where his MLC No.158812/05 dated 28.11.2005 and 16 hrs 15 minutes was prepared. He was later on shifted to Maharaja Agersen Hospital, Punjabi Bagh, New Delhi as per casualty card No.22752 which also bears a note, we do not want to admit.
Thereafter petitioner was taken for treatment to Max Health Care and as per discharge summary, the petitioner got admitted on 30.11.2005 and discharged from 03.12.2005. In the column of diagnosis it is mentioned fracture both bones left leg. In the column of history of patient illness it is categorically stated " patient gives alleged history of RTA two days back and had treatment from private practitioner. Now admitted with complains of pain and swelling in left leg since 2 days prior to day of admission. Cast applied in Maharaja Aggarsen Hospital and xray done there reveals incomplete approximation of # site. MLC made at AIIMS. The Doctor performed ORIF plating tibia left under SA on 01.12.2005. The discharge summary also reveals that at the time of discharge he was advised certain medicines and review as advised with prior appointment. The petitioner has placed on record medical bills worth Rs.43,848 (130+92+29794+962+3700+2090+1430+5650) and same are justified and granted in view of the injuries sustained by petitioner and treatment given.
11. The plea of the petitioner is that he suffered financial loss because at the time of accident he was student of MBA and imparting tuition at home but due to the accident he could not be appeared in 3rd semester of MBA from NIFT and after accident for continuing PG FM Course in third semester he deposited Rs.28,500. He filed challan no.3133 in support of his contention and there is no challenge to the plea raised by him and hence a sum of Rs.28,500/ is granted on that count. The petitioner, however, Suit no.222/07 Page no. 4/7 failed to lead any cogent and convincing evidence such as name of the students and time slot for which he teaches tuition for the student of class 12th and earning Rs.5000/ per month and no amount is awarded on this ground.
12. In the present case the injury of the petitioner has caused additional trauma, pain and suffering because of his grievous injuries. It would be appropriate if a sum of Rs.25,000 is awarded towards pain and suffering.
13. The petitioner was treated as indoor patient in various Hospitals and must have been forced to travel for his treatment. The petitioner has suffered a major injury, therefore, a sum of Rs.10,000/ are awarded towards special diet. Another sum of Rs. 10,000/ are awarded for travel expense which the petitioner might have incurred for facilitating his movement for medical treatment.
14. In view of discussion above the petitioner is entitled to total compensation of Rs. 1,17,348/ (43848 + 28,500 + 25,000+ 10,000 + 10,000) Relief
15. Petitioner is awarded to Rs.1,17,348/ with interest @ 7.5% per annum from the date of filing of petition i.e. 24.04.2005 till its realisation. LIABILITY:
16. R1 is the driver and R2 is the owner. The injured has sustained injuries on account of negligence of R1. Therefore R1 and R2 are joint tort feasors and jointly and severally liable to pay compensation. R3 is insurer of R2, therefore, R3 is liable to indemnify R2 regarding compensation to be payable to the petitioner.
17. Respondent no.3/insurance company is directed to directly deposit the cheques with SBI Bank, Saket Courts complex branch within 30 days from today and in case of default, penal interest @ 12 % per annum shall be given from the date of filing of delay till deposit of the awarded amount on the account of petitioner in following manners:
18. On deposit of award amount, 40 % of award in respect of petitioner shall be Suit no.222/07 Page no. 5/7 credited in his saving bank account and rest of the amount shall be invested as under
in the Fixed Deposit Account: Fixed Deposit in respect of 10 % amount be deposited for petitioner for one year, Fixed Deposit in respect of 10 % amount be deposited for petitioner for two years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for three years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for four years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for five years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for six years,
19. Interest on all the aforesaid fixed deposits be credited automatically monthly in the saving bank account of the respective petitioner.
20. Withdrawal from the aforesaid saving bank account shall be permitted to claimants after due verification and the Bank shall issue photo identity card to claimant to facilitate identity.
21. No cheque book be issued to claimants without the permission of this court.
22. The original fixed deposit account book shall be retained by the Bank in the safe custody. However, the original pass book shall be given to claimants along with the photocopy of the FD account book/receipt.
23. On maturity, the FDR amount shall be directly credited in the saving bank account of the petitioner.
24. No loan, advance or withdrawal shall be allowed on the said fixed deposit account without the permission of this court.
25. Half yearly statement of account be filed by the Bank in this court.
26. On the request of claimant the Bank shall transfer the Saving Account to any other branch of SBI, Saket Court according to her convenience.
27. Claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account in bank.
Suit no.222/07 Page no. 6/7
28. Let for the identification of the petitioner, the first copy of the petition wherein photograph of the petitioner is affixed, be annexed with the award.
29. Award is passed accordingly.
30. File be consigned to record room only after compliance by insurance company by depositing the award in the manner as stated above. Be awaited for compliance for 30.08.2011.
Pronounced in the open court
on 13.07.2011 VINEETA GOYAL
PO : MACT (SOUTH01) 13.07.2011
Suit no.222/07 Page no. 7/7