Delhi District Court
Kawaldar Yadav vs Amaldar Yadav on 1 November, 2007
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IN THE COURT OF SH. DILBAG SINGH
JUDGE, MACT, DELHI
Petition No. 95/04
Date of filing of Petition 23.03.2004
Date of conclusion of final arguments/ 01.11.2007
Date of reservation of judgment
Date of Award 01.11.2007
Kawaldar Yadav,
S/o Shri Ram Samaj yadav,
R/o Village Badli House,
H. No. H.220,
Delhi-110042.
.....Petitioner
VERSUS
1. Amaldar Yadav
S/o Sh. Ram Samaj Yadav,
R/o Plot No.5, Kali Till Wali Gali,
Badli, Delhi.
2. The National Insurance Co. Ltd.
7-E, Jhandewalan Extn., New Delhi.
Cover Note No. 0320259
valid from 5.3.03 to 4.3.04.
Service through Divisional Manager
3. Driver of the offending vehicle No. JH-02-A-3811
Contd....
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Incharge PS Bundu Distt. Ranchi, Jharkhand,
FIR No. 37/03 U/s 279/337/338/427 IPC
Dated 20.5.03.
.....Respondents
AWARD 1 By this award I shall dispose of a petition U/s 166 and 140 of the Motor Vehicle Act, 1988 as amended upto date (herein after referred to as the Act), wherein an amount of Rs. 20,00,000/- has been claimed on account of the injuries sustained in a vehicular accident.
2 Brief facts as cullable from the records of the petition are : On 20.05.2003 at 5.00 AM petitioner was coming from Tata to Delhi after loading iron sheets in his truck bearing no. DL-1GA-6451. When he reached near Cambridge School, Ranchi, within the jurisdiction of Police Station Bundu, Jharkhand (National Highway 33), vehicle bearing no. JH-02- A-3811 came. It was being driven in a rash and negligent manner. (it was pleaded that name of the driver will be disclosed lateron. It is worth mentioning that till date situation Contd....
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remains the same). Vehicle no. JH-02-A-3811 hit the vehicle of the petitioner and petitioner sustained injuries. Vehicle no. JH-02-A-3811 was in a high speed and gave multiple injuries to the petitioner including crushing of right leg. Injuries resulted in amputation. Case FIR bearing no. 37/03 at Police Station Bundu U/s 279/337/338/427 IPC was registered. Respondent no.1 is the owner and respondent no.2 is the insurer of vehicle no. DL-1GA-6451.
3 Notice of the petition was given to the respondent no.1 and 2. Respondent no.1 in its written statement stated that vehicle being insured Insurance Company was liable to pay the compensation. In para-wise reply on merits para no.1 to 6 of the petition were admitted. It was also mentioned that petitioner was working under the control, supervision and employment of respondent no.1. It was also mentioned that petitioner was the real brother of respondent no.1. It was also mentioned that petition was filed U/s 163A of the Act. Para no.8 to 10, 11 to 17, 19 to 21 and 23 to 24 were admitted either as true and correct or as matter of record meaning Contd....
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thereby that the same were admitted. Para no. 7 and 18 were denied for want of knowledge. In para no.22 it was submitted that 70% disability has been sustained by the petitioner. 4 Respondent no.2, Insurance Company took a specific plea that it was not liable as no allegations were levelled against the driver of DL-1GA-6451. Other statutory objections as provided U/s 149(2) of the Act were also taken. In para-wise reply on merits the assertions of the petitioner were controverted. Fact of vehicle bearing no. DL-1GA-6451 being insured is admitted. Amount of compensation claimed was asserted to be highly exaggerated and having no nexus with real expenses.
5 From the pleadings of the parties, on 13.09.2004, my Ld. Predecessor had framed the following issues :
1 Whether the petitioner sustained injuries due to rash and negligent driving of Truck No. DL-1GA-
6451 by respondent no.3?
Contd....
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2 Whether the petitioner is entitled to any compensation, if so, what amount and against whom?
3 Relief.
6 Although issues were framed under section 166 of the Act, on 30.05.2007 an application was moved for conversion of the petition to a petition U/s 163A of the Act. At this juncture itself, I deem it pertinent to mention that counsel for the applicant had not done his proper home work before filing of the petition and during the currency of the petition. My Ld. Predecessor as well as myself had advised the Ld. counsel at the available opportunities to do his home work properly, but it has been of no avail. Be that as it may, the petitioner should not suffer on account of non-doing of proper home work by his counsel. Therefore, this petition is being treated as a petition U/s 163A of the Act despite objections of Sh. S.C. Sharma, Ld. counsel for the Insurance Company in this regard who argued that petition cannot be converted from 166 to 163A for the reason that there is no such provision and the judgments are Contd....
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to the contrary. He also submitted that from the own assertions of the petitioner, the petition cannot be converted to a petition U/s 163A of the Act as income claimed by the petitioner in his affidavit is more than the prescribed limit U/s 163A of the Act. The argument is not tenable for the reason that Sh. P.K. Jha, Ld. counsel for the petitioner during the course of arguments submitted that let the income of the petitioner be reduced and be brought within the ambit of Section 163A of the Act. Motor Vehicles Act is a beneficial legislation and request of the petitioner should be allowed for this reason.
7 Taking this other way round. Had the petitioner moved the application U/s 163A of the Act, he could not have been prevented from doing so. It is well settled that a party should not suffer on account of an act of his counsel which may be detrimental to the party despite no fault of the party. In the present case the counsel for the petitioner has moved an application for conversion. There is another peculiar reason due to which I am not inclined to accept the submission of Sh.
Contd....
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S.C. Sharma and the reason is that respondent no.1, in para- wise reply on merits, in para no.1 has asserted that petition is U/s 163A of the Act. I am also supported in my view by a judgment of Punjab & Haryana High Court titled as Ravinder Vs. Subhash Chand reported in 2007 ACJ 1365 and of Karnataka High Court titled as K. Nanjappa Vs. V. Sekar and another reported in 2004 (2) ACJ 1186. In 2007 ACJ 1365, 2004 ACJ 934 (SC) was referred and conversion was allowed at the stage of final arguments. I am also supported in my view by judgment deliver by Hon'ble Mr. Justice T.S. Thakur while my Lord was heading a Division Bench in Sulochana and others Vs. Karnataka State Road Transport Corporation reported in 2005 ACJ 849. My Lord referred to Guruanna Vadi and another Vs. G.M. K.S.R.T.C. and another reported in 2001 ACJ 1528 (Full Bench). Relevant head note is as follows :
"Motor Vehicles Act, 1988, Section 163-A read with Second Schedule-structured formula-Whether a person whose Contd....
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annual income provide under schedule-maintain a claim U/s 163-A-Held : yes; but he will have to notionally bring down his income to Rs. 40,000/-."
8 I am also supported in my view by a judgment delivered by Hon'ble Mr. Justice T.S. Thakur, while my Lord was heading a division bench in Kernataka High Court. MY Lord also referred Guruanna Vadi and another Vs. General Manager, Karnataka State Road Trans. Corpn. And another reported in 2001 ACJ 1528. There is a judgment of Hon'ble High Court of Delhi as well in this regard. Reliance with the help of analogy is also placed on Delhi Trasnport Corporation and another V/s Nirmala and others reported in 2003 ACJ 1300. Reliance is also placed on National Insurance Company Ltd. Vs. Mukesh Bhai Bhalchandra Bhai Jain reported in 2004 ACJ 1533 (DB) Gujrat.
9 In view of the discussion of the above para, I Contd....
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deem it expedient to modify the issue. I have no hesitation in my mind to observe that there is no need to be detained for the purpose of leading of evidence in view of modification for the reason that issues framed on 13.09.2004 were in a bigger perspective and the modified issues do come in the bigger issue as it is common knowledge that bigger can contain the smaller but not vice-e-versa. The modified issues are as follows :
1 Whether the petitioner sustained injuries in an accident arising out of use of truck no. DL-1GA-
6451?
2 Whether the petitioner is entitled to any compensation, if so, what amount and from whom?
3 Relief.
10 Arguments were heard at the bar. Ld. counsel Contd....
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Sh. P.K. Jha submitted that in view of conversion of the petition from 166 to 163A of the Act, rashness and negligence is not required to be proved. He also argued that from the records of the criminal case, it is evident that rashness and negligence is of both the vehicles i.e. DL- 1GA-6451 and JH-02-A-3811. He submitted that income of the petitioner be taken on the basis of minimum wages. Sh. S.C. Sharma on the other hand had vehemently argued that conversion of the petition cannot be permitted as if it is allowed to do so, it will lead to uncertainty and confusion. He also argued that once the option U/s 166 is opted, the option is revert back to 163A is closed. He argued that there are no allegation of rashness and negligence against the driver of the insured/owner of truck no. DL-1GA-6451 which has been insured by the company and therefore no liability can be fixed on the Insurance Company. He also argued that petitioner has not arrayed the owner and driver of the offending truck no. JH-02-A-
Contd....
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3811 despite directions of this court given during the course of the proceedings and for the reason, the petition should be dismissed. He has also drawn my attention towards the fact that numerous opportunities were given to the petitioner to conclude the evidence diligently, but it has not been so done.
11 I have carefully perused the records of this case and considered the submissions. Before adverting to the issues involved, I deem it pertinent to mention that I have dealt with most of the argument of Sh. S.C. Sharma in para detailing about modification of the issues. The remaining arguments are also not tenable. The argument concerning non-diligent perusal is not is not tenable for the reason that orders for debarment of interest have already been passed. The argument concerning non-conversion has already been dealt with. The argument concerning income aspect has also been dealt with above and is Contd....
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squarely cover by judgment of Hon'ble Mr. Justice T.S. Thakur and judgments of Delhi High Court and Punjab & Haryana High Court. The argument concerning non- arraying of the owner of offending truck does not remain tenable for the reason that petition has been converted to a petition U/s 163A of the Act in which arraying is not required for the reason that rashness and negligence is not required to be proved in the ingredient of Section 163A. The argument regarding uncertainty and confusion, no doubt, has some force, but I am disallowing the same in the present case due to peculiar facts and circumstances of the case particularly the non-doing of proper home work by Ld. counsel for the petitioner. Another reason is that holding otherwise would disable a victim of accident to get the compensation. So the argument of Sh. S.C. Sharma are disallowed. Coming to the issues in specific.
Issue No.1.
Contd....
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Whether the petitioner sustained injuries in an accident arising out of use of truck no. DL-1GA- 6451?
12 Petitioner in context of this issue has testified in consonance with assertions of the petition. In Ex. PW1/X, it is testified that accident took place when petitioner was driving vehicle bearing no. DL-1GA-6451 (3rd and 4 th lines of para no.3). Testimony of PW-1 as far as driving of vehicle no. DL-1GA-6451 has gone unchallenged and uncontroverted. Sh. S.C. Sharma during cross- examination has not disputed the driving of vehicle no. DL- 1GA-6451 by the petitioner and has come up with a case that accident took place on account of rash and negligent driving of driver of truck no. JH-02-A-3811. This is so evident from the first line of cross-examination of PW-1 carried out on 30.05.2007. This is also so evident from first line of cross-examination carried out on 03.10.2007.
Contd....
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During the entire cross-examination of PW-1 it is not disputed that injuries were not sustained by the petitioner in a vehicular accident arising out of use of DL-1GA-6451. From the cross-examination, the maximum possible inference is to the effect that accident might have taken place on account of sole rashness and negligence of driver of JH-02-A-3811. However, the same is of no help to Sh. S.C. Sharma as the liability of Insurance Company still remains for the reason that rashness and negligence is not to be apportioned in a petition U/s 163A of the Act and owners of both the vehicles are to be treated as joint tortfeasors.
13 Argument of Sh. S.C. Sharma to the effect that there is collusion between the petitioner and respondent no.1, is not tenable for thereason that collusion would have come to rescue of Insurance Company had the conversion to 163A not been done. Insurance Company Contd....
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by virtue of its policy is enjoined upon a duty to compensate the petitioner as per the mandate of Motor Vehicles Act and argument to the contrary are not tenable. 14 In view of the above going discussion, issue no.1 is decided in favour of the petitioner and against the respondents.
Issue No.2.
Whether the petitioner is entitled to any compensation, if so, what amount and from whom?
15 In a petition U/s 163A of the Act, compensation is to be awarded as per the terms and conditions of Schedule appended to Section 163A. Keeping in mind the Schedule I proceed to assess the compensation head- wise.
Contd....
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Medical expenses 16 Under stipulation no. 4(i)(b)(ii) maximum limit for medical expenses is Rs. 15,000/- as one time payment. The bills placed on record by the petitioner are to the tune of Rs. 46,333/-. I deem it pertinent to mention that incurring of expenses to the tune of Rs. 46,333/- has not been challenged in cross-examination of PW-1. In view of the maximum limit of Rs. 15,000/0 U/s 163A, I award a sum of Rs. 15,000/0 under this head.
Disability 17 Assessment of compensation under the disability head has to be done by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation. In case of partial disablement it has to be proportionally reduced as per mandate of stipulation no.5. It is also provided that Contd....
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Workman Compensation Act would be the guide for ascertainment of disability. Disability certificate has been proved by the petitioner as Ex. PW4/A. In the disability certificate, no doubt disability has been shown as 70%. However, in view of the mandate of Workman Compensation Act, which has to be followed disability of lower limbs as per Workman Compensation Act in this case is provided as 50%. So there is force in the argument of Ld. counsel Sh. S.C. Sharma that Ex. PW4/A should not be relied upon. Therefore, I am not relying upon the same and going by Workman Compensation Act. 18 The argument of Sh. P.K. Jha that in view of below knee amputation the petitioner has become unable to drive the vehicle and disability be treated as 100%, is not tenable for the reason that this being a petition U/s 163A provisions of Workman Compensation Act cannot be given a go bye. Schedule I at item no. 20 and 21 Contd....
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provide about amputation below knee and give the percentage of earning capacity as 50%. So functional disability with respect to whole body, in the present case can be taken to half of 50%, as the maximum, with respect to whole body. The argument of its increase to 100% is not tenable for another reason that in modern days, percentage of disability can be reduced by use of artificial limbs.
19 Keeping in view the discussion above as well as the facts and circumstances of the case, I am awarding 25% disability of the whole body to the petitioner. 20 Next question which arises is at what multiplicand and what multiplier. It is not disputed that petitioner is a driver. Driving licence is there on the records of the case vide Ex. PW1/6. It is with respect to HTV, so petitioner is a skilled driver. No proof of educational qualification has been attached and going by Contd....
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the minimum wages criteria, monthly income of the petitioner can be taken as Rs. 3,207.90 ps. (say Rs. 3,300/-) as on 20.05.2003. Thus loss of income comes to Rs. 3,300 x 12 = 39,600/-. This is the multiplicand. 21 Coming to multiplier. Date of birth in Ex. PW1/6 has been given as 13.07.1978. Date of accident is 20.05.2003. So on the date of accident petitioner was 23 years of age. Multiplier applicable as per Schedule is that of 17. So total amount of disability payable to the petitioner comes to 25% of Rs. 6,73,200 comes to Rs. 1,68,300/-. Therefore, I award a sum of Rs. 1,68,300/- und4er the head of disability.
Loss of earning.
22 Perusal of the records concerning medical treatment of the petitioner has revealed that soon after the accident he was removed to Rajinder Ayurvigyan Sansthan where amputation took place. Ex. PW1/1 discloses the same. Other records have been collectively exhibited as Ex. PW1/7. I Contd....
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could find some prescription slips of Rashmi Hospital. The last one being the discharge card. Perusal of the same reveals that some complications had arisen after amputation and petitioner was operated upon at Rashmi Hospital. Six units of blood were given. Amputation below knee at slightly higher level was done. Debridement and skin grafting was done at Rashmi Hospital on 02.06.2003. Although purchase slips are there on records of the case ranging upto February, 2004, but the same cannot be considered in the absence of the prescription slips. So estimation comes into play. In view of the nature of injury sustained, I am of the considered view that a period of four months must have been taken in the entire treatment from the date of accident till complete healing. In my view petitioner must have become alright except the disability due to amputation within a maximum period of four months from the date of accident. I am giving a margin of two more months taking the possibility to the maximum. So the amount of compensation payable under this head comes to 3,300 x 6 = 19,800.
Contd....
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Pain and sufferings 23 Under the Schedule, the amount prescribed under this head in case of grievous injury is Rs. 5,000/-. Therefore, a sum of Rs. 5,000/- is awarded under this head. 24 The amounts awarded under the different heads are being chunked together :
1 Medical expenses Rs. 15,000/- 2 Disability Rs. 1,68,300/-
3 Loss of earning Rs. 19,800/-
4 Pain and sufferings Rs. 5,000/-
____________ Total Rs. 2,08,100/-
____________ 25 Therefore, an award for a sum of Rs. 2,08,100/- is being passed in favour of the petitioner and against the Contd....
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respondents. Perusal of the records of the case reveals that petitioner has been negligent throughout in persual of his petition. Orders for debarment had no effect on him. In view of orders passed in this regard petitioner shall not get interest w.e.f. 13.09.2004 to 03.10.2007. For the remaining period he shall be entitled to interest @ 7% per annum. Petitioner is directed to keep a sum of Rs.1,50,000/- out of the above mentioned amount in a fixed deposit for a period of seven years with some Nationalized Bank without any facility of premature withdrawal, encashment loan/advance, mortgage etc. Petitioner, however, shall be entitled to withdraw interest.
Liability to pay 35 In view of my discussion in the issue of rashness and negligence, liability to pay is fastened on respondent no.2 insurer of truck no. DL-1GA-6451. The payment shall be made within a period of 30 days from today by respondent no.3, failing which this Tribunal shall be constrained to take harsh steps.
Contd....
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15 A copy of the award be supplied to all the sides free of cost for necessary compliance.
File be consigned to record room.
Announced in the open court.
Dated : 1st November, 2007 ( Dilbag Singh ) Judge MACT : Delhi Contd....