Delhi District Court
Sh. Sukhveer Singh @ Sukhbir Singh vs Sh. Hoshiar Singh on 14 October, 2011
IN THE COURT OF REETESH SINGH,
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST),
KARKARDOOMA COURTS, DELHI.
MACT PETITION NO.15/09
Date of institution of the case : 06.01.2009
Date on which Award/Judgment was reserved : 23.08.2011
Date on which Award/Judgment was pronounced : 14.10.2011
Unique ID No. 02402C0002142009
IN THE MATTER OF:
Sh. Sukhveer Singh @ Sukhbir Singh,
S/o Sh. Raghuvar Dayal,
R/o House No.311, Sharfuddinpur,
Javali-3, Loni, Ghaziabad.
......Petitioner.
Versus
1. Sh. Hoshiar Singh,
S/o Sh. Sukh Ram,
R/o House No.30, Basant Nagar, Vasant Vihar,
New Delhi-110057. ........Driver.
2. M/s Rosi Cap Company,
(Through its Manager),
Shop No.2, Palika Kunj Aliganj,
PS Lodhi Road, New Delhi. .........Owner.
3. Oriental Insurance Company Limited,
D.O.20, Ansal Chamber-II, Bhikaji Coma Palace,
New Delhi.
(Cover Note No.672545) Valid from 10.12.07 to 09.12.08. ........Insurer.
......Respondents.
Judgment:
1. The present petition has been filed by the petitioner under the provisions of sections 140 and 166 Motor Vehicles Act, 1988 (hereinafter referred to as the said Act) seeking grant of compensation on account of grievous injuries suffered by the MACT NO. 15/09 Page 1/11 petitioner.
2. The case of the petitioner is that on 5.8.09 at around 10.30 after completing his duty hours the petitioner was returning to his house on his motorcycle UP 15-N 2098.
When the petitioner was passing through railway flyover Meet Nagar on Wazirabad Road, a Maruti Esteem car bearing registration no. DL 1YA 1949 coming from the opposite direction and being driven in rash and negligent manner by the respondent no. 1 hit the motorcycle of the petitioner with great force. Due to the accident petitioner fell on the road and sustained multiple injuries. Petitioner suffered multiple fracture on his right leg from the thigh to lower portion of the leg due to which the two plates with screw were inserted in his leg and one plate with screw was also inserted on his right hand. It is submitted that petitioner is still not cured of his injuries and is receiving treatment. It is further submitted that the petitioner was firstly taken for treatment to GTB Hospital from where he was taken to Indraprastha Appollo Hospital where he remained admitted till 20.8.08. He was subsequently taken to Kailash Hospital and was admitted thrice up to 25.7.09. During this period several operations were performed on the injured portion of the petitioner's body. It is submitted that despite best treatment, leg of the petitioner has become short by two and half inches. It is stated that the petitioner has incurred about Rs.12,00,000/- on his treatment out of which Rs.6,29,349/- has been paid directly by the employer of the petitioner i.e. Delhi Police to the hospital and balance amount till date has not been paid.
3. FIR No. 370/08, under sections 279/337/338 IPC was registered in PS Nand Nagri arising out of the said accident.
4. Joint written statement has been filed by respondent no.1 and 2 in which it is MACT NO. 15/09 Page 2/11 stated respondent no.1 was having a valid driving license at the time of the accident and the vehicle was insured with respondent no.3 as on the date of the accident. Allegations of negligence on the part of respondent no.1 have been denied.
5. In its written statement respondent no.3 has stated that the offending vehicle was insured with it as on the date of the accident. It is stated that accident took place due to negligence of the petitioner and that respondent no.1 was not having any valid and effective driving license on the date of the accident.
ISSUES
6. On the basis of the pleadings, by order dated 1.5.09 the following issues were framed:-
1. Whether the petitioner sustained injuries due to rash and negligent driving of Maruti Esteem No.DL 1YA 1949 by respondent no.1?OPP
2. Whether the petitioner is guilty of contributory negligence? If so, to what effect?
OPR
3. Whether the petitioner is entitled to any compensation? If so, against whom and to what amount?OPP
4. Relief.
7. On his part petitioner examined record clerk from Appollo Hospital as PW1, Dr. Vashistha from Apollo Hospital as PW2, record clerk from DCB Medical Record as PW3, petitioner himself as PW-4, photographer as PW5, Dr. Vinod Kumar as PW6, Record Clerk from Kailash Hospital as PW7, Ajay Kumar as PW8 and Dr. Jasvinder Singh with regarding to disability as PW9.
MACT NO. 15/09 Page 3/11
8. Respondent no.1 and 2 were proceeded ex-parte vide order dated 19.11.09. Respondent no.3, Insurance Company examined Head Constable Raj Kumar, Delhi Police as R3W1 and Constable Umesh Kumar as R3W2.
9. I have heard the counsel for the parties and perused the record of the case. My findings issue wise are as under:-
ISSUE NO. 1
10. In order to prove this issue petitioner examined himself as PW4. He tendered his evidence by way of affidavit in which he reiterated his averment made in the petition. He was cross-examined by respondent no.3 only as respondent no.1 and 2 were not appearing. In his cross examination the petitioner PW4 admitted that collision which took place with his motorcycle and offending vehicle was head on. He denied suggestion that the accident took place due to fault of the petitioner. As recorded, PW4 petitioner was not subject to any cross examination by R1 and R2 who were not appearing and were proceeded ex-parte. Petitioner has placed on record certified copy of the charge sheet arising out of the FIR registered after the accident. Petitioner is the informant of the FIR. In the absence of any cross examination by R1 and R2 and there being nothing in cross examination by respondent no.3 from which deposition of the petitioner can be disbelieved, it is held that the petitioner suffered an accident and injuries due to involvement of the offending vehicle which was being driven rashly and negligently by respondent no.1. Issue no.1 is decided in favour of the petitioner and against the respondents.
ISSUE NO.2
11. Issue no.2 was whether the petitioner was guilty of contributory negligence. MACT NO. 15/09 Page 4/11 Onus to prove this issue was on the respondents. R1 and R2 did not lead any evidence and were proceeded exparte. Respondent no.3 also did not lead any evidence. There is nothing in the cross examination of petitioner PW4 from which any inference can be drawn that the petitioner was guilty of contributory negligence. This issue is therefore decided against the respondents and in favour of the petitioner. ISSUE No. 3
12. Whether the petitioner is entitled to any compensation. Since issue no.1 has been decided in favour of the petitioner, I hold that the petitioner is entitled to compensation. At the time of arguments ld. Counsel for petitioner had stated that the petitioner had incurred a total expenditure of Rs.10,34,872/-. He has placed on record bills of the said amount on record as Ex.PW4/1 to Ex.PW4/129. The same were not disputed by the counsel for respondent no.3, Insurance Company. Out of the same counsel for petitioner submitted that Rs.9,40,989/- stood paid by the Delhi Police by way of reimbursement and therefore only an amount of Rs.93,883/- was not reimbursed by the Delhi Police. Counsel for respondent no.3 very categorically has submitted that he did not dispute the accuracy of the bills or the amounts left outstanding. Petitioner has also placed on record bills for medicines amounting to Rs.71,338/- which were purchased from the open market. These have also not been disputed by the counsel for respondent no.3.
13. Counsel for petitioner had argued that the petitioner was on medical leave for 17 months due to the accident. These 17 months of leave had to be taken by the petitioner in voluntarily and counsel for petitioner submitted that petitioner would be entitled to salary for this period at the rate of Rs.13,605/-. It is submitted that if the petitioner had MACT NO. 15/09 Page 5/11 not taken leave for this period, petitioner would be entitled to encashment of leave at the end of his service career as per service rules. Counsel for petitioner relied upon the judgment of the Hon'ble Madhya Pradesh High Court in the case of united India Insurance Company Ltd. Vs. Shyam Kumar and others reported in 2006 ACJ 2092.
14. Counsel for petitioner further submitted that due to the accident petitioner had suffered shortening of his right lower limb about two and half inches and as per disability certificate he had suffered permanent disability to the extent of 90% on the right lower limb.
15. Perusal of the record reveals that respondent no.3 had summoned HC Raj Kumar Delhi Police along with the medical reimbursement record of the petitioner. R3W1 stated that the petitioner had submitted bills to the Department for reimbursement amounting to Rs.10,72,057/- out of which Rs.9,40,989/- had been paid to the petitioner. As per the said statement, an amount of Rs.1,31,068/- remains outstanding and payable to the petitioner. Since counsel for respondent no.3 had not disputed the same, petitioner is held entitled to a sum of Rs.1,31,068/-. As recorded above petitioner has placed bills on record of medicines purchased from the open market for Rs.71,338/- as Ex.PW4/1 to Ex.PW4/129 which have not been disputed by counsel for respondent no.3. Petitioner is held entitle payment of the said amount towards the same.
16. Petitioner has claimed that he spent Rs.100/- per day on special diet, engaged a maid servant at Rs.2,000/- per month for taking care of him to whom he was also giving food. Petitioner has also claimed Rs.1,000/- per visit as transportation expenses incurred in his forty visits to the doctors. Petitioner was cross examined by counsel for MACT NO. 15/09 Page 6/11 respondent no.3 in which he admitted that he had not filed any bills towards transportation expenses and that he did not have any prescription of a doctor for special diet. Hence there is no evidence on record that petitioner has incurred the expenses as claimed on these accounts.
17. Petitioner has examined Dr. Deepak Vats from Apollo Hospital who stated that petitioner was admitted in the said hospital on 6.8.08 and was discharged on 20.8.08. He was diagnosed to be suffering from compound fracture on right femur, right tibia avulsion, right heel. Petitioner summoned his service records which were produced by HC Mukesh PW3 who stated that petitioner was on medical rest from 5.8.08. R3W2, Ct. Umesh Kumar brought the service record of the petitioner as per which the petitioner joined duties w.e.f. 9.3.10. Hence from the evidence on record it appears that petitioner was not attending the duties between 5.8.08 to 9.3.10, i.e. for a period of about seven months.
18. Petitioner examined Kamal Kumar Kaushik as PW5. He has taken photographs of the petitioner on 2.9.09 which were Ex.PX. Petitioner examined Dr. Vinod Kumar Sharma as PW6 who deposed that he dressed the wounds of the petitioner from 20.10.08 to 4.11.08, 15.11.08 to 20.11.08, 20.12.08 to 22.7.09, 26.7.09 to 16.9.09 intermittently. He stated that he performed dressing 290 times and charged Rs.350/- per dressing. He exhibited the bills as Ex.PW6/1.
19. The petitioner examined Sh. D.R. Tiwari Medical Record Officer, Kailash Hospital who produced the records relating to the treatment of the petitioner in the said hospital. He stated that the petitioner was hospitalized between 20.8.08 to 17.10.08, 5.11.08 to 14.11.08 and 23.7.09 to 25.7.09. Petitioner examined Dr. Ajay Pawar as PW8 who MACT NO. 15/09 Page 7/11 stated that he had performed five operations upon the petitioner in Kailash Nurshing Home. He deposed that there was shortening of the right leg by two and half inches which is permanent. Petitioner would be required to wear specially designed shoes throughout his life.
20. Petitioner also examined Dr. Jaswinder Singh, Senior Resident Orthopaedics, GTB Hospital as PW9. This witness stated that he was a part of the Medical Board which examined the petitioner with regard to disability and proved the certificate as EX.PW9/A. He stated that petitioner had suffered disability in right lower limb to the tune of 90%.
21. As regards assessment of compensation in cases of serious injury, the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar reported in (2011) 1 SCC 343 observed that where there is specific medical evidence corroborating the evidence of the claimant, compensation ought to be granted under the following heads:-
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, 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:
(iii) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.MACT NO. 15/09 Page 8/11
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
22. Applying the principles laid down by the as the Hon'ble Supreme Court in the case of Raj Kumar v. Ajay Kumar (supra) I shall now proceed to assess the compensation to which the petitioner is entitled.
23. As far as the medical expenses incurred are concerned, I have already held that the petitioner will be entitled to Rs. Rs.1,31,068/- towards outstanding reimbursement which has not been given to him and Rs.71,338/- towards medicines purchased from the open market, both amounting to Rs.2,02,406/-. As recorded above, petitioner has not placed on record any documentary evidence regarding special diet, transportation expenses and expenses towards maid servant. However it can be inferred from the medical record produced in this case that the petitioner must have visited the doctors on several occasions. Petitioner has claimed 40 visits. Petitioner would thus be entitled to transportation expenses of Rs.15,000/-. Total therefore comes to Rs.2,17,406/-.
24. Petitioner had claimed salary for the period he was on leave due to the accident. Petitioner has relied on the judgment of the Hon'ble Madhya Pradesh High Court reported in 2006 ACJ 2092 (Supra). In this matter Hon'ble High court was pleased to hold that although the accident victim had received salary from his employer during the period he was on leave, since this leave was forced due to the accident and could have been utilized for some other purpose, the accident victim was rightly given compensation by the Tribunal on this account. HC Mukesh PW3 stated that petitioner was on medical rest from 5.8.08 and R3W2, Ct. Umesh Kumar brought the service MACT NO. 15/09 Page 9/11 record of the petitioner as per which the petitioner joined duties w.e.f. 9.3.10. Hence petitioner was not attending duties between 5.8.08 to 9.3.10 due to the accident. As per the pay slip Ex.PW3/2 salary of the petitioner for the month of August 2008 was Rs. 13,605/-. Petitioner was on leave for about 7 months. In view of the judgment of the Hon'ble High court petitioner will be entitled to 7 months salary at the rate of Rs. 13,605/- per month for being forced to take leave due to the accident.
25. Petitioner has claimed that he has suffered 90% permanent disability and claimed compensation on that account. Petitioner is an employee of Delhi Police and remains in service despite the said disability. Petitioner has not suffered any loss of earning capacity due to the injuries / disability. Hence petitioner will only be entitled to compensation on account of pain and suffering caused by the injury. Petitioner has suffered compound fracture on right femur, right tibia avulsion, right heel apart from shortening of his leg by two and half inches. PW8 Dr. Ajay Pawar who performed operations on the petitioner had stated that petitioner would require to be treated further as well. Keeping in view the nature of injuries and grievous injuries suffered by him, I award the following amounts in his favour under the categories mentioned hereunder:-
(A) PECUNIARY DAMAGES
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. Rs.2,17,406/-
(ii) Seven months forced medical leave at the rate of Rs.13,605/- per month Rs.95,235/-
(iii) Future medical expenses Rs.25,000/-
(B) NON-PECUNIARY DAMAGES
MACT NO. 15/09 Page 10/11
(iv) Damages for pain, suffering and trauma
as a consequence of the injuries Rs. 1,00,000/-
(v) Loss of amenities (and/or loss of
prospects of marriage). Rs. 50,000/-
(vi) Loss of expectation of life (shortening of
normal longevity). Rs. Nil/-
TOTAL Rs.4,87,641/-
LIABILITY
26. As there is no dispute regarding the validity of insurance cover of the offending vehicle or the driving license of R-1, responsibility of payment of compensation assessed would be on R-3 Insurance Company alone.
27. An award of Rs.4,87,641/- is passed in favour of the petitioner and against the respondent no.3 along with interest at the rate of 7.5% per annum date of filing of the petition.
28. Respondent no. 3, the Insurance Company is hereby directed to deposit the award amount with up to date interest in UCO Bank, Karkardooma Branch, Delhi within thirty days from the date of this award under intimation to this Court. The same shall be disbursed to the petitioner upon verification
29. Copy of this award be given free of cost to the parties.
30. File be consigned to the Record Room.
Dictated to the Steno and announced in the Open Court today i.e. 14.10.2011.
(REETESH SINGH) ADDL. DISTT. JUDGE-01 (NE) KARKARDOOMA COURTS, DELHI MACT NO. 15/09 Page 11/11