Delhi District Court
Sh. Balbir Singh vs Sh. Manohar Lal on 22 May, 2014
1
IN THE COURT OF SH. HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.199/13
DATE OF INSTITUTION:3.4.2013
1. Sh. Balbir Singh
S/o Late Sh.Mam Raj
R/o 2972, Bhagat Singh Gali No.3
Chuna Mandi, Pahar Ganj
New Delhi. ................Petitioner
Versus
1. Sh. Manohar Lal
S/o Sh.Fakeer Chand
R/o N68/434, T Huts, Aruna Nagar
Majnu Ka Tilla, Delhi.
2. Sh.Arun Kumar
S/o Sh.Manohar Lal
R/o N68/434, T Huts, Aruna Nagar
Majnu Ka Tilla, Delhi.
3. Reliance General Insurance Company Ltd.
C1, 3 Floor, Krishna Park
rd
Near Janak Puri, West Metro Station
New Delhi. ........Respondents
Final Arguments heard on : 8.5.2014.
Award reserved for : 22.5.2014.
Date of Award : 22.5.2014.
2
AWARD
1. Vide this judgment cum award I proceed to decide the petition filed U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 26.1.2013, the petitioner was driving his scooter no.DL10SD0684 and was going towards Gole Market and at about 9.10am, he reached on road between Gole Market and R.K.Ashram Metro Station and in the meantime the offending vehicle no.DL1YD0262 being driven by respondent no.1 in rash and negligent manner came at a hight speed and struck the scooter of petitioner from behind due to which he fell down and sustained injuries. The petitioner was taken to RML hospital.
3. It is stated that the petitioner was 74 years of age at the time of accident and he was running Hotel Mahalaxmi and M/s Krishna Dhaba, Chuna Mandi, Pahar Ganj, Delhi and was earning approximately Rs.60,000/pm. It is stated that the accident occurred due to rash and negligent driving of the offending vehicle by respondent no.1 the driver, the vehicle was owned by respondent no. 2 and insured with respondent no. 3 and as such all the respondents are jointly and severally liable to pay compensation. It is prayed that Rs.Five Lacs alongwith interest be 3 awarded as compensation in favour of petitioner against the respondents.
4. Respondent no.1,driver has filed reply in the DAR and has contested the petition. It is stated that the offending vehicle was insured with respondent no.3 at the time of accident and the respondent no.1 was having valid driving license at the time of accident. Other averments on merit are denied.
5. Respondent no.2, owner has not filed reply to the claim petition.
6. Respondent no.3 the insurance company has filed reply in the DAR and offered a sum of Rs.7000/ as compensation.
7. From the pleading of the parties following issues were framed on 29.8.2013.
1.Whether the petitioner sustained injuries in the accident which occurred on 26.1.2013 at about 9.10am at R.K.Ashram road between Gole Market and R.K.Ashram Metro Station, New Delhi caused by rash and negligent driving of vehicle no.DL1YD0262 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3.?OPP.
2.Whether the petitioner is entitled for compensation?If so, to what amount and from whom?
3.Relief.
8. In support of his claim the petitioner examined himself as PW1. PW1 tendered in evidence his affidavit Ex.PW1/A and proved election identity card Ex.PW1/1, discharge report of RML hospital Ex.PW1/2, discharge summary of City hospital and prescriptions Ex.PW1/3(colly.), medical bills 4 Ex.PW1/4(colly.) and income tax returns Ex.PW1/5(colly.).
9. Petitioner examined Sh.Rajnish Kumar, MRD Assistant, City hospital, Pusa Road, Karol Bagh, New Delhi as PW2 proved record in respect of patient Sh.Balbir Singh Ex.PW2/1(colly.).
10.Petitioner examined Dr.V.P.Sachar, Consultant, Department of Medicine, City hospital, Pusa Road, New Delhi as PW3 who stated that patient Sh.Balbir Singh was admitted in City hospital on 9.2.2013 and he was under treatment of medicine unit I and he was the incharge of the said unit. PW3 stated that discharge summary Ex.PW1/3 was signed by one of the Senior Residents of his unit and the patient was diagnosed as suffering from TypeII Diabetes Mellitus, Hyper Tension, Allergic Drug Reaction and RTA with soft tissue injury.
11.On the other hand respondents did not examine any witness despite opportunities and RE was closed.
12.I have heard the Ld. counsel for the parties and perused the record. My findings on specific issues are as follows:
ISSUE NO.1
13.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to rash and negligent driving by respondent no.1, the driver of offending vehicle no.DL1YD0262.
5
14.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
15. The case of the petitioner is that on 26.1.2013, the petitioner was driving his scooter no.DL10SD0684 and was going towards Gole Market and at about 9.10am, he reached on road between Gole Market and R.K.Ashram Metro Station and in the meantime the offending vehicle no.DL1YD0262 being driven by respondent no.1 in rash and negligent manner came at a hight speed and struck the scooter of petitioner from behind due to which he fell down and sustained injuries. The petitioner 6 was taken to RML hospital. It is stated that case vide FIR No.15/13, u/s 279/337 IPC was registered at PS Mandir Marg. The petitioner appeared in the witness box as PW1 and adduced evidence by way of affidavit Ex.PW1/A. In his affidavit Ex.PW1/A, the petitioner has reiterated the manner of accident as stated in the claim petition. In the cross examination by R1&2, petitioner/PW1 stated that the speed of scooter at the time of accident was about 20kmph and there was no traffic on the road at the time of accident. In the cross examination of petitioner/PW1, R1&2 have given suggestion to the effect that the accident was not caused due to negligence of driver of the offending vehicle and the petitioner lost balance of scooter and fell down of his own which was denied by the petitioner/PW1. Apart from giving suggestion to the petitioner/PW1 in the cross examination that the petitioner fell from the scooter of his own, respondent no.1&2 have not examined any independent witness to prove their contention. The police has filed Accident Information Report(AIR) in this case and alongwith the AIR, police has filed copy of statement of Sh.Sudhir Kumar on the basis of which asal tehrir was prepared, copy of FIR No.15/13, u/s 279/337 IPC, PS Mandir Marg, copy of site plan, copy of final report u/s 173 CrPC, copy of MLC of petitioner prepared at RML hospital, copy of arrest memo of respondent no.1, copy of driving license of respondent no.1, copies of 7 seizure memos of scooter no.DL10SD0684 and offending vehicle, copies of mechanical inspection report of scooter no.DL10SD0684 and the offending vehicle, copy of insurance policy of offending vehicle. As per mechanical inspection report of scooter no.DL10SD0684, it had fresh damages i.e. tail light broken, back light jaal damaged, rear body frame bended, left side rear indicator light broken, both side body cover dented and scratched, right side handle damaged, right side rear view mirror broken, head light and head light cover broken. As per mechanical inspection report of offending vehicle, it had fresh damages i.e. front side body jaal dented and bended and front bonnet dented. As per final report u/s 173 CrPC, respondent no.1 has been chargesheeted for the offences u/s 279/337 IPC. The respondents have not proved any other version of the accident. Thus in view of the testimony of petitioner and documents on record, the negligence of respondent no.1 has been prima facie proved.
ISSUE NO.2
16.As the negligence of driver of offending vehicle has been proved the petitioner is entitled to compensation.
COMPENSATION MEDICINES AND MEDICAL TREATMENT
17.The case of the petitioner is that after the accident on 26.1.2013, he was 8 taken to RML hospital where his MLC was prepared and he was discharged on the same day and thereafter he faced some pain and he was admitted in City hospital, Pusa Road, New Delhi on 9.2.2013 and was discharged on 14.2.2013. The contention of counsel for insurance company is that the petitioner has sustained only simple injuries in the accident and after initial treatment the petitioner was discharged from RML hospital on the date of accident itself and the subsequent treatment which has been taken by him at City hospital has no relation with the accident. The petitioner has filed on record the discharge report prepared at RML hospital Ex.PW1/2 in which the diagnosis is mentioned as soft tissue injury, CLW stitching and as per same the petitioner was taken to the said hospital on 26.1.2013 and was discharged on the same day. Alongwith the AIR police has filed the copy of MLC of petitioner prepared at RML hospital on which the opinion on the nature of injuries sustained by the petitioner is mentioned as "simple". The petitioner has examined Sh.Rajnish Kumar, MRD Assistant, City hospital, Pusa Road, Karol Bagh, New Delhi as PW2 who produced the treatment record of petitioner Ex.PW2/1(colly.). The petitioner has examined Dr.V.P.Sachar, Consultant, Department of Medicine, City hospital, Pusa Road, New Delhi as PW3. As per discharge report of petitioner prepared at RML hospital Ex.PW1/2, petitioner had suffered soft tissue injury and he was 9 discharged from the said hospital on the same day. The diagnosis on discharge summary of City hospital Ex.PW1/3 is mentioned as "Type II DM, hypertension, allergic drug reaction and RTA with soft tissue injury"
and history on the discharge summary Ex.PW1/3 is mentioned as " 74 yrs old male patient known case of hypertension(on treatment) with history of RTA on 26.1.2013, now admitted with c/o itching all over body for 15 days, maculopapular rash all over body. No history of fever, cough, burning micturition and pain abdomen." As per discharge summary of City hospital Ex.PW1/3, petitioner was suffering from type II DM, hypertension, allergic drug reaction and soft tissue injury. PW3 stated in the cross examination that the medicines as advised in discharge summary Ex.PW1/3 are for management of hypertension, diabetes and drug allergy and thereafter PW3 stated that petitioner was already taking treatment for hypertension and diabetes. PW3 stated that prior to admission in the hospital on 9.2.2013, the petitioner was taking treatment from their hospital as OPD patient and the petitioner has been taking treatment for hypertension and diabetes for quite few years from their hospital. It is to be noted that as per discharge report of RML hospital Ex.PW1/2, the petitioner has suffered soft tissue injury and was discharged on the same day and thereafter petitioner took admission in City hospital on 9.2.2013. The contention of petitioner is that he has 10 suffered allergy on account of drugs which were taken due to accident. PW3 admitted in the cross examination that the petitioner was treated for management of hypertension, diabetes and drug allergy. PW3 had stated in the cross examination that as per record brought by him in the history of patient it was mentioned that he was taking tablet voveron and capsules Amoxycillin and possibly the reaction could have been on account of any of these two medicines and the reaction after taking these medicines should generally start within a day or two of having taken the same. As per discharge report of RML hospital Ex.PW1/2, the petitioner started the medicines on 26.1.2013 hence the drug allergy on account of said medicines would have started within a day or two after 26.1.2013 but the petitioner took admission in City hospital on 9.2.2013 and in the City hospital, the petitioner had taken treatment for Type II DM , hypertension, allergic drug reaction and soft tissue injury. The petitioner has not succeeded in proving that the treatment taken from City hospital w.e.f. 9.2.2013 was only in relation to the injuries sustained in this accident and of the consequences of direct effect of any medication pursuant to the accident. In the circumstances it cannot be said that the treatment taken from City hospital w.e.f.9.2.2013 was a result of direct consequence of the accident. Accordingly the petitioner is not entitled to expenses incurred in the City hospital pursuant to his admission on 9.2.2013. 11 Petitioner is entitled to admissible bill of Rs.1025/ for medical treatment. PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
18.It has been held in Divisional Controller, K. S. R. T. C Vs Mahadeva Shetty and another, AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for less of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver(1969 1 All. E. R. 555) Lords Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monitory assessment."
19.The case of the petitioner is that after the accident on 26.1.2013, he was taken to RML hospital where his MLC was prepared and he was discharged on the same day and thereafter he faced some pain and he was admitted in City hospital, Pusa Road, New Delhi on 9.2.2013 and was discharged on 14.2.2013.In the aforesaid discussion, it has been held that the treatment which was taken from City hospital was not direct consequence of the injuries sustained in the accident. As per MLC of petitioner prepared at RML hospital, the petitioner has suffered simple injuries and as per final report u/s 173 CrPC also respondent no.1 has 12 been charge sheeted for the offences u/s 279/337 IPC i.e. for causing simple injuries on the person of petitioner. Looking at the nature of injuries sustained by the petitioner, period of hospitalization and extent of treatment the petitioner is awarded a sum of Rs.10,000/for pain and suffering.
20. It is stated that petitioner was 74 years of age at the time of accident and on account of injuries sustained, he may not have been able to perform his duties towards his family and may not be able to enjoy the amenities of life. Hence, petitioner is awarded Rs.5,000/ towards loss of amenities of life.
CONVEYANCE AND SPECIAL DIET
21. In para 8 of affidavit Ex.PW1/A, the petitioner has stated that during the period of hospitalization and thereafter he had visited hospitals many times for treatment by taxi/bus and the each visit used to cost Rs.300/. The contention of counsel for respondent no.3 is that the petitioner has not proved that he incurred expenditure on conveyance. Although the petitioner has not proved by cogent evidence that he incurred expenditure on conveyance but notice can be taken of the fact that after the accident petitioner was admitted in RML hospital and after discharge from RML hospital he took further treatment and after discharge from hospitals and for subsequent treatment the petitioner might have hired services of 13 private conveyance as he may not have been able to drive of his own or to use public conveyance and might have incurred expenditure on the same. In the circumstances, a sum of Rs.2,000/ would be just and proper for conveyance and is awarded accordingly.
22.In para 9 of affidavit Ex.PW1/A the petitioner has stated that he was advised special diet for a period of three months and on an average he had spent Rs.200 per day on that account. The contention of counsel for respondent no.3 is that the petitioner has not proved that he was advised special diet. Although the petitioner has not proved that he was advised special diet and has incurred expenditure on the same, however, looking at the nature of injuries note can be taken of the fact that the petitioner might have taken diet rich in protein,vitamins and minerals for speedy recovery and might have incurred expenses on the same. Thus the petitioner is awarded a sum of Rs.2,000/ towards special diet. LOSS OF INCOME
23.In para 5 of affidavit Ex.PW1/A, the petitioner has stated that at the time of accident he was running business in the names of M/s Hotel Mahalaxmi and M/s Krishna Dhaba and on account of accident he had to engage a manager to look after the business on salary of Rs.10,000/pm and it took five months for him to recover from the injuries and he was earning approximately Rs.60,000/pm from his business. The contention 14 of counsel for respondent no.3 is that the petitioner has not proved that he was advised rest for any specific period and on that account he could not attend his avocation. The petitioner has not proved that he was advised rest for any specific period on account of this accident. As per MLC of the petitioner prepared at RML hospital, the petitioner has suffered simple injuries and as per discharge report of RML hospital Ex.PW1/2, the petitioner has suffered soft tissue injury and he was discharged on the same day from the hospital. In order to prove his income, the petitioner has relied on income tax returns Ex.PW1/5 for the assessment year 20122013 and 20132014. As per acknowledgment of income tax for the year 20122013 the total income of petitioner was Rs. 651103/ and as per acknowledgment of income tax for the year 20132014 the total income of petitioner was 797883/. As per the income tax returns filed by the petitioner, the income of petitioner has increased in the assessment year 20132014 from assessment year 20122013. The petitioner has not filed any document to prove that he suffered loss of income due to the accident. The petitioner has also not proved that he hired the services of any manager to look after his business as stated in para 5 of his affidavit Ex.PW1/A. In the cross examination, the petitioner has stated that he has not filed any document to prove that he had employed one manager at the salary of Rs.10,000/pm as stated in para 15 5 of his affidavit Ex.PW1/A. The petitioner has failed to prove that he has suffered loss of income on account of this accident. In the circumstances, no amount is being awarded for loss of income.
24. The petitioner has not proved that he has suffered any permanent disability or the nature of injuries sustained by him was such that on account of said injuries, he may not be able to perform his avocation in future or his efficiency will be reduced and his capacity to earn will be affected. In the circumstance, no amount is being awarded on account of future loss of income.
The total compensation is assessed as under:
Medicines and Medical treatment : Rs.1025/
Pain and suffering and loss of
Amenities of life : Rs.15,000/
Conveyance and Special Diet : Rs.4,000/
Loss of Income : NIL
TOTAL : Rs.20025/
RELIEF
25.The petitioner is awarded a sum of Rs.20025/(Rs.Twenty Thousand Twenty Five). Vide order dated 18.1.2014, the interest on award amount was stopped from the date of framing of issues i.e.29.8.2013. In the circumstances, the petitioner shall be entitled to interest at the rate of 7.5% per annum from the date of filing of petition till 29.8.2013 including, 16 interim award, if any already passed against the respondents and in favour of the petitioner. The liability of all the respondents being joint and several. The entire amount be released to the petitioner.
26.The respondent no. 3 shall deposit the award amount directly in the bank account of the claimant at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
27.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
28.The respondent no.3 shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimants with a copy to his counsel and the compliance report shall be filed in the court alongwith 17 proof of deposit of award amount, the notice of deposit and the calculation of interest on 1.8.2014.
APPORTIONMENT OF LIABILITY:
29. Respondent no. 3 has not proved any violation of terms and conditions of policy. Thus, respondent no. 1 being the driver, respondent no.2 being the owner and respondent no. 3 being the insurer are held jointly and severally liable. Respondent No. 3 being the insurer is directed to deposit the award amount within 30 days with interest @ 7.5% per annum from the date of filing of petition till 29.8.2013. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. An attested copy of award be given to the parties(free of cost). File be consigned to Record Room.
Announced in the open court (Harish Dudani) on 22.5.2014. Judge: MACT1 : New Delhi