Delhi District Court
Sh. Dev Ashish Nayyar vs Sh. Sanjay Puri @ Vikky on 23 August, 2008
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IN THE COURT OF DEEPA SHARMA: PO MACT:
NEW DELHI
Suit no.:452/2004
Date of institution: 05.06.2004
Sh. Dev Ashish Nayyar
s/o Sh. M.M Nayyar
r/o 21-C, Ujjwal Apartments
H-3 Block, Vikaspuri,
New Delhi-110018
and
57 (first floor)
Ashoka Enclave Part III
Sector 35, Faridabad
........PETITIONERS
VERSUS
1 Sh. Sanjay Puri @ Vikky
s/o Sh. Yashpal Puri
r/o RZ-A-71 Mahendra Park
Pankha Road, New Delhi
2 Smt Jagir Kaur
w/o Sardar Gudjan Singh
D-2-124, Jiwan Park
Pankha Road, New Delhi
3 Bajaj Allianz General Insurance Company Ltd
C-31/32 (first floor)
Connaught Place, New Delhi-110001
.............RESPONDENTS
Arguments heard on 19.8.2008
Date of decision: 23.8.2008
Compensation Claimed : Rs 1,97,58,006/-
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AWARD:-
1 It is an unfortunate case where budding Enterprenure, a
Civil Engineer and upcoming builder , at the age of 28 years, is
rendered disabled due to this accident. On the unfortunate date i.e
24.4.2003, he was driving his two-wheeler scooter no.DL-4SV-8811 at
a normal speed of 40 KMPH. He was going from his home at
Vikaspuri to his place of work . When he reached near EME Officers
Mess Gate, Station Road, Delhi Cantt at about 9.15 am , a dog
came in front of his scooter. He immediately applied brake to save
him. At the same time one maruti van no.DL-9CE-4374 came from
behind. It was being driven in extremely rash manner and at very
fast speed and the driver of maruti van lost control over it and the
maruti van over turned and fell on the petitioner. The petitioner had
fallen down from his scooter as he applied brake , on seeing a dog
coming in front of his vehicle and he was crushed by the maruti van
which over turned. It is submitted that he was removed to Army Base
hospital where he was given preliminary treatment and was
discharged and was admitted in Joy Nursing home in Rajauri garden
where he was given treatment for two days and then he was shifted
to AIIMS where he was operated on 28.4.2003 and remained in the
hospital upto 16.5.2003. He had fracture of D-12 Vertebra with
paraphagia with bowel and bladder involvment. It was described
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as a case of Traumatic fracture D 12 vertebra with paraphagia with
bowel and bladder involvement. The operative procedure
undertaken was reduction with decompression with posterior
instrumentation, cage fixation and bone grafting. It is submitted that
on 16.5.2003 the petitioner was admitted in Indian Spinal Injury
Center, Sector-C, Vasant Kunj, New Delhi. He remained in hospital
and treated by Dr. Harinder Nath Bajaj and team of doctors. He was
discharged from that hospital on 16.7.2003. He further continued to
remain under treatment under the said medical center as OPD
patient. He was also given acupressure treatment at petitioner's
residence by Dr. Jas Raj Jain initially on daily basis for three months
and thereafter for alternate days for three months and lastly
approximately twice a week thereafter. He was also given
physiotherapy treatment at his residence by Dr. Rakesh Atray daily,
ever since he was discharged from the hospital till date. He has also
suffered permanent disability in the nature of fracture of the spine
and damage to the spinal cord and his lower part of body has
become immobile. It is submitted that as per doctor's opinion he has
to continue physiotherapy treatment , medicines and acupressure
for indefinite period of time without any certainty of improvement in
his condition. He has to depend on others for his personal chores. It
is further submitted that he has purchased a plot at Faridabad for
the purpose of construction in March 2003 and in the normal course
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the construction would have completed within 8-10 months but was
delayed due to this accident. It is further submitted that he is unable
to drive for the rest of his life. He has, therefore, incurred heavy
expenses in commuting between his house and place of work in Taxi
daily. He has claimed Rs.5,00,000/- on account of pain , injury and
mental agony, Rs. 2,00,000/- on account of loss of income on
account of disability/immobility and consequent employment of
Engineer/supervisor for the period from 24.4.2003 to 31.3.2004,
Rs.1,08,000/- on account permanent disability/immobility and loss of
future earnings calculated @ 50% of likely monthly income of
Rs.1,00,000/- i.e Rs.50,000/- x 12 x multiplier of 18 , a sum of
Rs.10,00,000/- loss of amenities of life , marital life, career prospects
etc , sum of Rs.50,000/- on account of Conveyance, special diet at
Joy Nursing Home, sum of Rs.1,20,000/- on account of operation
materials at AIIMS , 50,000/- on account of medicines, medical test,
X-ray, MRI etc at AIIMS, Rs.86006/- on account of hospital bills at
Indian Spinal Injury center, Rs.50,000/- on account of medicines ,
test etc at Indian Spinal injury center, 75,000/- on account of
expenses towards conveyance, special diet, attendants etc at
Indian spinal injury center, sum of Rs.25000/- on account of expenses
incurred towards doctor's fee, medicines, conveyance, D-rays, tests
etc at Indian Spinal Injury Center , Rs.48,000/- on account of doctor's
fee for acupressure treatment, Rs.45000/- on account of doctor's
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fees for physiotherapy treatment, Rs.1,00,000/- on account of
expenses incurred by petitioner for travelling by taxi from 16.7.2004
to 31.3.2004 for visits to the hospital, work place etc, sum of
Rs.5,00,000/- on account of future conveyance expenses for life on
account of disability immobility, Rs.42000/- on account of salary of
attendant from 16.5.2003 to 31.3.2004 @ Rs.4000/-pm , Rs.8,64,000/-
on account of future salary of attendant from 01.4.2004 for life i.e
Rs.4000 x 12 x multiplier of 18 , sum of Rs.2,00,000/- on account of
medical expenses from 01.4.2004 onwards , sum of Rs.3000/- on
account of expenses incurred for repair of the two wheeler scooter
owned by petitioner and Rs.5,00,000/- on account of special diet
from 24.4.2003 for life. He has further stated that he has to engage
Engineer and extra hand to perform his duty at his construction site
which he would have done and incurred extra expenses
consequent to employment of engineer/supervisor etc. It is prayed
that compensation of Rs.1,97,58,006/- be awarded in favour of
petitioners. It is submitted that offending vehicle was driven by
respondent no.1 , owned by respondent no.2 and it was insured with
respondent no.3. It is also submitted that FIR no.:138/2003 dated
24.4.2003 u/s 279/338 IPC was registered at the Delhi Cantt against
respondent no.1.
2 Claim is contested by all the respondents. It is submitted
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by respondent no.1 that accident had taken place due to the fault
of petitioner and not due to his rash and negligent driving. It is
submitted that petition is liable to be dismissed.
3 Claim is contested by respondent no.2 also. It is not
disputed that offending vehicle was owned by respondent no.2. It is
submitted that it is duly insured with respondent no.3 and all the
other contentions in petition have been denied.
4 Claim is also contested by R3, insurance co. It is
submitted that accident had taken place due to rash and negligent
driving of scooter by the petitioner himself and insurance company
of said vehicle and owner was necessary party. It is not disputed
that offending vehicle was insured with answering respondent under
valid policy. It is submitted that in case it is found that there was
violation of terms and conditions of insurance policy, answering
respondent is not liable to pay any compensation. It is submitted
that petition is liable to be dismissed.
5 On the pleadings of the parties, the following issues were
framed by the Ld. Predecessor of this Court on 11.03.2005:
i) Whether the petitioner Dev Ashish sustained injuries in
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road accident dated 24.4.2003 because of rash and negligent
driving of maruti car no.DL-9CE-4374 by R1, owned by R2 and
insured with R3, ? .....OPP
ii) If issue No. 1 is proved in affirmative to what amount of
compensation, the petitioner is entitled to and from whom?
....OPP
iii) Relief
6 Petitioner has examined as many as seven witnesses.
Respondents have not produced any evidence.
7 I have heard the arguments and perused the record.
8 My issue-wise finding is as follows.
ISSUE NO.1:
9 It is submitted by the petitioner that he was riding on his
two wheeler scooter no.DL-4SV-8811 and when he reached in front
of EME officers Mess gage , Station Road, Delhi Cantt at about 9.15
am suddenly a dog came in front of his scooter and he applied
brakes to avoid a hit at the animal and at the same time maruti van
no.DL-9CE-4374 came from behind. It was driven in rash and
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negligent manner at a very fast speed and it over turned and fell on
the petitioner , as a result of which he received injuries. In order to
prove rash and negligent driving, petitioner has examined himself
and driver of maruti van i.e respondent no.1 has also examined
himself. The driver of the offending vehicle has stated that he was
driving maruti van in the morning at about 8.30 to 8.45 am on the
date of accident and was following the petitioner after green light.
All of a sudden a dog came in front of the petitioner. The petitioner
stopped the scooter all of a sudden without giving any signal to stop
and in order to save the petitioner who was in front of him, he
applied the brakes and sweared his vehicle to avoid the petitioner
and hit the divider. After hitting the divider his vehicle got over
turned and fell on the road. In the cross-examination he has stated
that two-wheeler driver i.e petitioner stopped his scooter by
applying brakes. He has also admitted that his vehicle was over
turned and fell on the petitioner. He has also admitted that he is
facing a criminal trial in this case. He has also admitted that he had
noticed the dog. This statement of respondent no.1 i.e driver of the
maruti van clearly establishes petitioner's case. It stands proved that
petitioner was driving his scooter ahead of the maruti van driven by
respondent no.1. Both petitioner as well as respondent no.1 Sanjay
Puri saw the dog suddenly coming in front of scooter. As per the
admission of respondent no.1 in his cross-examination, petitioner was
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able to stop his scooter. Respondent no.1 has described his act at
that time. He has stated that in order to save the petitioner he
applied brakes and sweared his vehicle to save the petitioner. In the
cross examination he has admitted that his vehicle over-turned and
fell on the petitioner. Respondent no.1 although has stated that he
was keeping a distance of 20 ft from the scooter of the petitioner
but it is established from the manner in which the accident had
taken place that he was driving his maruti van at a fast speed and
that is the reason he could not immediately stopped his van
although he also saw the dog coming in front of the vehicle of the
petitioner, while the petitioner had been able to stop his scooter,
respondent no.1 could not stop his maruti van despite applying
brake. He had to sweared his vehicle, and despite that he could
not stop his vehicle and due to application of brake his vehicle over
turned and fell on the petitioner. This fact of over turning of
offending vehicle at application of brakes, clearly proves that
offending vehicle was at a very high speed and due to this reason it
over turned on application of brake. It is the duty of every vehicle to
maintain the safe distance from the vehicle moving ahead and in
this case it seems that respondent no.1 did not maintain the
minimum required distance . Had he maintained the required
minimum distance and his vehicle had been at a normal speed, he
certainly would have been able to stop his vehicle on seeing the
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dog coming in front of the scooter and on seeing that scooter had
stopped. In cross-examination of the petitioner there is nothing to
prove that the accident is the result of rash and negligent driving of
two wheeler scooter by the petitioner. The MLC and challan proved
on record clearly proves that the injured i.e petitioner has received
injuries in this accident. It is not disputed that offending vehicle was
owned by respondent no.2 and was insured with respondent no.3. I
answer this issue in favour of the petitioner.
ISSUE NO. 2:
10 The petitioner has proved on record his medical record
and prescription Ex.PW1/30 (colly), medical record of treatment of
AIIMS as Ex.PW1/31 (colly), treatment record at Indian Spinal Center
Ex.PW1/32 (colly) and Ex.PW1/33 (colly), Copy of certificate issued by
DR. Jas Raj Ex.PW1/34, Copy of certificate issued by Dr. Rakesh Attrey
Ex.PW1/35, Copy of certificate issued by Dr. HN Bajaj Ex.PW1/36 and
disability certificate is Ex.PW1/37. Certificate issued by Health Link
Physiotherapy Clinic is Ex.PW1/38, certificate of salary of attendant is
Ex.PW1/39, medical bills and receipt of payment of treatment is
Ex.PW1/46. The petitioner has also examined Dr. Rakesh Attrey as
PW5 who has proved on record that he had treated the petitioner
from September 2005 to February 2006 and he conducted
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physiotherapy and received total sum of Rs.45000/- vide receipt
Ex.PW6/A to Ex.PW6/C and has proved his prescription as Ex.PW1/35.
PW6 Dr. Vinod Kaushik has also proved on record that he had
treated the petitioner since 15.5.2004 till 30.8.2005 and patient used
to visit clinic 2/3 days a week @ Rs.100/- per day and proved his bills
as Ex.PW6/A to Ex.PW6/H. PW7 Dr. Jasraj Jain has stated that he was
giving acupressure treatment to patient from 17.7.2003 till date and
same is proved on record as Ex.PW7/A and Ex.PW7/B. All these
documents show that the petitioner has suffered the spinal injury due
to which he had developed weakness in the lower limb and was
unable to move its foot and developed incapacity in the lower
limb. He had fractured D-12 vertebra which left him paralyzed
below waist . He was having difficulty in bowl movement and urine.
He had undergone operation and was also advised for
physiotherapy which he has been taking and also taken treatment
through acupressure and he spent lot of money. He had also spent
money for keeping his assistance. He had spent a sum of
Rs.4,50,000/- on his medical treatment including the medical bills
and on his treatment through acupressure and physiotherapy his
condition also shows that he has to continue the acupressure and
physiotherapy and has to incur some expenses on these method of
treatment beside continuing his medical treatment. I, therefore,
award Rs.7,00,000/- on account of actual medical expenses and
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expenses which is likely to incurred in future.
11 From the injuries he had suffered it is apparent that he
has become immobile . He is physically dependent on others due to
50% disability of lower limb. He is unable to perform his day to day
course. He has also deprived of pleasures of life which normal
person get. He cannot drive. His pain and sufferings are for the rest
of the life and no amount of compensation can reduce his pain
and sufferings. A healthy person of 28 years of age has been
rendered a invalid due to no fault of his own. His whole life has
changed due to this accident. His whole personality has been
affected due to this accident. The accident which renders a person
invalid not only affects the physique of person but it also affects the
psyche of a person and makes it difficult for him to cope up with his
life. I award a sum of Rs.2,00,000/- for pain and sufferings and
mental agony.
12 It is argued on behalf of petitioner that he had
purchased a plot in March and was likely to build house on it as he
has started his career as a builder. Document regarding purchase of
land/plot has been proved on record. It is submitted that due to the
accident he could not finish the project in time and had to hire
hands to work for him due to his inability. He has examined the
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witnesses Ashok Kumar (PW2) , Raj Kumar (PW3), Suraj Prasad (PW4)
who have stated that they are working as Junior Engineer and
Supervisor respectively at the site as they were hired by the
petitioner to perform the job. It is argued on behalf of respondent
no.3 that the petitioner has no loss of income due to these injuries as
per the income tax report of the petitioner. It is submitted that
petitioner has proved income tax return for the year 2000-2001 as
Ex.PW1/13, year 2001-2002 as Ex.PW1/14, year 2002-2003 as
Ex.PW1/15, year 2003-2004 as Ex.PW1/16 and year 2004-2005 as
Ex.PW1/17. It is submitted that these returns clearly shows that there
was increase in the income of the petitioner so it cannot be said that
the petitioner had suffered any financial loss due to this accident.
There is no doubt that income of the petitioner shown in income tax ,
return has increased after the accident but simultaneously the
petitioner has also been able to prove that he has to incur extra
expenses since he had to hire more people to perform the job
which otherwise he would have been able to do had he not
suffered injuries in this accident. I am in agreement with the
petitioner. The petitioner's witnesses have clearly proves that they
were hired by the petitioner to perform his job of Engineer and
Supervisor. Petitioner himself is a Civil Engineer and he need not hire
any person had he himself been physically able to perform the job. I,
therefore, award a sum of Rs.1,50,000/- towards loss of income.
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13 Petitioner has also proved the document Ex.PW1/39
which shows that he paid a sum of Rs.96000/- to the Attendant
which he had engaged for himself who had issued a receipt
Ex.PW1/39 . I award a sum of Rs.96000/- for Attendant.
14 Petitioner has received grievous injuries and has fracture
also , he must have consumed special diet for early recovery. I
award a sum of Rs.10,000/- on account of special diet. Petitioner
also must have spent some money on travelling as he has to go
regularly for his treatment to hospital and thereafter for his follow up.
I award him Rs.10,000/- on account of conveyance also.
15 Hon'ble Himachal Pradesh in the matter of Brestu Ram Vs
Anant Ram and Ors, 1990 ACJ, 333 has held that in disablement cases
compensation has always to be higher than in case of death since it is
given to the living victim of the accident both for his personal loss and for
economic loss.
16 As per income tax return Ex.PW1/17 the annual income of the
petitioner is Rs.1,71,780/-. Petitioner has suffered 50 % disability in his lower
limb. The disability in relation to the whole body will be taken as 25% . In
these circumstances, annual loss of his earning capacity because of
25% permanent disability assessed as Rs.42945/-. Petitioner was 28 years
of age at the time of accident. Multiplier for the age of 28 years is 18,
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hence, the total loss of earning capacity of petitioner will be Rs.42945 x
18=7,73,010/- rounded off to Rs.7,73,000/-. This amount has been
awarded to petitioner on account of permanent disability suffered by
him.
RELIEF:
17 Keeping in view the facts and circumstances, the
following sum shall be just and fair compensation:
1 On account of medical expenses : Rs. 7,00,000/-
2 On account of pain and sufferings
and mental agony : Rs. 2,00,000/-
3 On account of conveyance : Rs. 10,000/-
4 On Account of special diet : Rs.10,000/-
5 On account of loss of income : Rs. 1,50,000/-
6 On account of Attendant : Rs. 96,000/-
7 On account of permanent disability : Rs.7,73,000/-
........................................................................................................................
Grand Total : Rs.19,39,000/-
(Rupees nineteen lac thirty nine thousand Only) ................................................................................................................................................
INTEREST:
18 The petitioner is awarded interest at the rate of 7.5% per annum from the date of filing of petition till realization. Interim award, if any, shall be adjusted.16
RELEASE:
19 30% of the awarded amount be kept in FDR in any bank for a period of Five years with the provision that he may opt for awarding of quarterly interest but no loan shall be granted against the said FDR. The awarded amount shall be paid by way of depositing account payee cheque in favour of the petitioner within 30 days from the date of award.
LIABILITY:
20 Respondent no.3/insurance company is directed to pay the awarded amount i.e. Rs.19,39,000/- (Rupees nineteen lac thirty nine thousand Only) alongwith interest @ 7.5 per cent to the petitioner within 30 days from the date of filing of the petition till realization. The respondent no.3 shall intimate the petitioner about depositing of the cheques in terms of the award, so as to facilitate of withdrawal of it by the petitioner.
21 The petitioner to file his photograph, photostat copy of
the Election I-Card and Ration Card, if not filed earlier. File be
consigned to R/R.
ANNOUNCED IN (DEEPA SHARMA)
OPEN COURT PRESIDING OFFICER: MACT:ND
DATED 23.08.2008
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DEV ASHISH VS SANJAY PURI
23.08.2008
PRESENT: Counsel for petr.
Counsel for R3.
Counsel for R-1
R-2 is exparte
Vide my separate award announced today, petitioner has been awarded total compensation of Rs.: Rs. 19,39,000/-(Rupees Nineteen lac thirty nine thousands Only) alongwith interest at the rate of 7.5% per annum from the date of filing of petition till realization. Interim award, if any, shall be adjusted.
30% of the awarded amount be kept in FDR in any bank for a period of Five years with the provision that he may opt for awarding of quarterly interest but no loan shall be granted against the said FDR. The awarded amount shall be paid by way of depositing account payee cheque in favour of the petitioner within 30 days from the date of award.
R3/insurance company is directed to pay the awarded amount alongwith interest @ 7.5 per cent to the petitioner within 30 days from the date of filing of the petition till realization. The respondent no.3 shall intimate the petitioner about depositing of the cheques in terms of the award, so as to facilitate of withdrawal of it by the petitioner. The petitioner to file his photograph, photostat copy of the Election I-Card and Ration Card, if not filed earlier.
File be consigned to R/R. PO/MACT/23.08.08