Delhi District Court
Mohd. Asjad Jamal vs The Chairman Dtc on 21 May, 2010
1
IN THE COURT OF SHRI D.C. ANAND
ADDITIONAL DISTRICT JUDGE (NORTH)-04 : DELHI
CS No.439/09
Mohd. Asjad Jamal
S/o Mohd. Afaq
R/o D-22, Ground Floor
Abul Fazal Enclave
New Delhi 110025 ... Plaintiff
Versus
The Chairman DTC
Head Quarter IP Estate
New Delhi ... Defendant
Date of institution : 29.1.2007
Date of addressing arguments : 11.05.2010
Date of Decision : 21.05.2010
JUDGMENT
Tersely, the plaintiff pleaded inter-alia in the plaint that the plaintiff is an advocate and having its Bar Council of Delhi enrollment no. D/782/2000 and also the membership number M 705 of DBA Tis Hazari Courts Delhi. The plaintiff was earning at the average sum of Rs. 10,000/- per month and at the time of accident his age was about 30 years. On 22.1.2005 in the night at about 10.00 p.m when the plaintiff was standing at the Mehraulli bus stand terminal and waiting for the bus for his destination at Abdul Fazal Okhala, New Delhi all of sudden the shed with iron pillars had fallen down on the plaintiff. The plaintiff saved the upper part of the body but was not able to 2 save the lower part of the body which had completely broken resulted into compound fractures and multiple injuries. It is pertinently mentioned that there was no thunder storm on the said night but due to negligence of the defendant in maintaining the bus stand, the plaintiff had suffered various multiple injuries. The plaintiff himself made call to the 100 number from his mobile. The PCR van came at the spot and ASI of E-57 PCR brought him immediately to the AIIMS hospital at Emergency department. The plaintiff shifted from AIIMS hospital to Safdarjung hospital due to lack of bed at the said hospital. The plaintiff had been operated at the Safdarjung hospital and steel pins were fixed in the right leg of the plaintiff below knee level which was totally broken. In order to save the right leg of the plaintiff, various portion of the skin and the bone was taken by the doctors. The plaintiff also pleaded that after the accident, he had become totally bed ridden and and dependent upon his some friends and well wishers because the plaintiff native place is at Bihar and there was nobody to look after him. On 22.1.2005 the plaintiff was brought to the hospital by ASI and thereafter the police officials after visiting the bus stand came to the hospital and recorded statement of the plaintiff in the presence of the witnesses but took no action against any persons. Again on 13.4.2005 the plaintiff was 3 admitted to the hospital and another operation was conducted by the doctors on 19.4.2005 and steel rods was affixed with the right leg and thereafter discharged on 23.4.2005. The plaintiff had been regularly visiting the hospital for his routine check up with the help of his relatives and near friends. The plaintiff had spent substantial amount of more than 1.5 lac on the medical treatment and towards his day to day requirements. The plaintiff also pleaded that Hon'ble High Court Delhi while deciding the writ petition filed by him had already granted Rs 1,00,000- towards medical expenses prior to the passing of the order dated 13.1.2006 and in these circumstances the plaintiff is not claiming the expenses towards the medical treatment prior to the said date. The plaintiff had been completely bed ridden for about 13 months and after that the plaintiff had started walking slowly with the help of sticks even the plaintiff can not walk more than 100-200 meters. As per doctors the right leg of the plaintiff is not totally curable and the plaintiff suffered permanent disability but the certificate to that effect shall be given to them on or about December 2007. The plaintiff also pleaded that before the accident the plaintiff was living in the tenanted premises at First floor but due to the incident he had to shift his tenanted premises from first floor to D-22 Ground Floor, Abdul Fazal Enclave New Delhi at costlier rate of rent. 4 Since the plaintiff was totally bed ridden, he had to take services of one attendant to whom he had been paying Rs. 2500/- per month for last about 18 months. The plaintiff had taken a loan in the sum of Rs. 2,00,000/- from his near friends and well wishers for the medical treatment and day to day requirements. The plaintiff pertinently mentioned that plaintiff is an advocate and was having good practice of more than 4 years and 6 months at the time of accident and his whole practice and future had been disrupted and hampered due to the accident. The plaintiff also pleaded that the family of the plaintiff consist of his wife and minor daughter and they are totally dependent upon the income and earning of the plaintiff. The plaintiff can not estimate the amount of loss in the work which is hampered due to the accident occurred but claiming as a token damages in the sum of Rs. 10 lac which are exclusive of Rs. 1,00,000/- awarded by the Hon'ble High Court in writ petition. The plaintiff is claiming the following token damages from the defendant :
a. Expenses incurred on Medical treatment for damage right leg and the same is continuing Rs. 1,25,000/-
b. Transport charges or regularly visiting the hospital and the same is continuing Rs. 25,000/-
c. Expenses incurred on special diet and the same is continuing Rs. 75,000/- 5 d. Loss of income for last two years and same is continuing Rs. 2,25,000/-
e. Expenses incurred on Servant to look after the day to day needs of the applicant and the same is continuing Rs. 50,000/- f. Compensation in respect permanent disability incurred to the applicant Rs. 5,00,000/-
Total : Rs. 10,00,000/-
The plaintiff also pleaded that due to the act and conduct of the defendant, plaintiff suffered a huge mental, physical and financial loss. The plaintiff as such has prayed for a decree of Rs. 10,00,000/- with cost and pendentelite and future interest @ 18% per annum from the date of filing of the suit till the realization.
The defendant contested the suit by filing WS stating therein that the suit of the plaintiff has no cause of action to file the suit and as such liable to be dismissed as no injuries or any accident took place due to the collapse of the bus terminal. The defendant also submitted that the suit of the plaintiff is not maintainable in the present form as he had already taken Rs. 2,00,000/- from the defendant through a writ petition decided by the Hon'ble High Court on 13.1.2006 out of which one lac towards medical expenses and one lac towards the compensation. The defendant also pleaded that the suit of the plaintiff is barred as per law of resjudicata as he had taken claim for the same injury and of the same accident. On merits, 6 the defendant pleaded that no documents were filed regarding the income and the age of the plaintiff. It is pertinently mentioned by the defendant that no FIR was lodged by the police as the police was not satisfied with the statement of the plaintiff and his alleged injuries caused due to this accident with the Bus terminal at Mehrolli and as per record of the defendant no injury or any loss caused due to the said fall of the terminal as no intimation was given to the defendant regarding the alleged accident and the plaintiff wants to take advantage of fallen/ broken bus terminal of the defendant. The defendant also admitted to the extent that the Hon'ble High Court Delhi had already granted Rs. 2,00,000/- to the plaintiff towards the damages including medical expenses and compensation. All other averments as made in the plaint have been denied by the defendant and prayer made for dismissal of the suit with heavy cost.
The plaintiff filed replication to the WS and assailed the allegations as made in the written statement whereas the averments of the plaint are affirmed in toto.
On the pleadings and the documents, the following issues were framed on 21.5.2007.
1. Whether the plaintiff has no cause of action as alleged in para no. 1 of the preliminary objections ?OPD
2. Whether the suit of the plaintiff is not maintainable as alleged in para no.2 of the preliminary objections? OPD 7
3. Whether the suit of the plaintiff is barred by resjudicata as alleged in para no. 5 of the preliminary objections
4. Whether the plaintiff is entitled for the damages of Rs. 10 lac? OPP
5. Whether the plaintiff is also entitled to interest? If so at what rate ? OPP
6. Relief.
The plaintiff examined himself as PW1 and filed affidavit in evidence U/o 18 CPC. Sh. Anurag Sharma Junior Judicial Assistant from Hon'ble High Court as Pw-2, HC Phool Singh from PS Mehrolli as PW-3, Sh. D.K. Sharma as PW-4, Dr. Anita Nanda as PW-5 , Sh. Vikas Gupta from Safdarjung hospital as PW6 and Sh. Raj Bir Singh as PW-7.
The defendant examined Shri Nand Ram as DW-1 and filed affidavit in evidence U/o 18 CPC and examined Kishan chand as DW-2 and Sh. A.K. Kausik as DW-3 .
I have heard ld. Counsel for the parties and have perused the evidence and documents on record carefully. My findings on the issues are as under:
Issue no. 2 and 3:
Both the issues are taken up together being interconnected one. The Ld. counsel for the defendant on whom the onus was to prove the issue referred to the judgment in writ petition no. W.P. (c) 18200/2005 Ex. Pw2/1 as proved on record by the plaintiff himself and submitted that subject matter of the suit stand adjudicated upon and decided by the 8 Hon'ble High Court vide judgment dated 13.1.2006 and as such point in issue i.e. entitlement of damages on the basis of cause of action filed by the plaintiff is barred by resjudication. Ld. counsel for the defendant further submitted that in view of the judgment dated 13.1.2006 passed by Hon'ble High Court, copy of which proved on record as Ex PW2/1 by the plaintiff himself, the plaintiff has already taken Rs. 2 lac from the defendant i.e. Rs. one lac towards medical expenses including purchase of medicine and transportation expenses and Rs. one lac to tide over the loss of income and as such the suit is liable to be dismissed.
Ld. counsel for the defendant on the other hand referred to the same judgment Ex. PW2/1 and submitted that their lordship in the said judgment was of the opinion that compensation awarded by his Lordship as above was without prejudice to any other legal remedy which the petitioner may choose to initiate. Ld. counsel for the plaintiff submitted that present suit for damages is neither barred by principle of resjudicata nor barred on account of award of damages in the writ petition as was discussed above vide judgment dated 13.1.2006 proved as Ex. PW2/1. In support of submission, Ld. counsel for the plaintiff also referred to the case titled as Smt. Shyama Devi and ors Vs. National Capital Territory of Delhi 9 reported as 78 (1999) DLT 827 (DB). Perusal of the authority relied upon by the Ld. counsel for the plaintiff goes to substantiate the submission made by Ld. counsel for the plaintiff as their lordship in the cited authority and in the similar facts and circumstances were of the following views :
"The compensation as awarded above shall be exclusive of the other amount which may be due to HC Om Prakash or his family members (petitioners) which state is bound to pay under the relevant service rules. The award of the above compensation in public law jurisdiction shall be without prejudice to any other action which may be lawfully available to the petitioners. The amount of above compensation shall be liable to be adjusted against any amount which may be awarded to the petitioners by way of damages in a private law remedy. An observation made herein on merits shall not affect the decision of the courts in other proceedings arising from the incident in question. They will be free to arrive at the own conclusions".
Further in case of Dharamvir Kataria Vs. Union of India reported in 1999 III AD (Delhi) 665 as was referred to therein the case of Ram Kishore and Ors. Municipal Corporation of Delhi reported in 2007 VII AD (Delhi) 441 wherein it was observed as under :
"In Dharamvir Kataria Vs. Union of India 1999 III AD (Delhi) 665 = (1999) 79 DLT 683, a Learned Single Judge of this court explained the relationale for awarding compensation on the basis of the strict liability. The court was dealing with the claim of compensation consequent upon 10 death of an employee of National Institute of Health and Family Welfare who was traveling in a lift in the building of the residential campus and was later found dead in the pit of the lift".
Similar was the case in case of Dharamvir Kataria (Vol. ) Vs. Union of India and Others reported in 1999 III AD (Delhi) 665 wherein their lordship observed as under :
"Thus, claim in public law for
compensation for deprivation of
constitutionally guaranteed right of lie and liberty is a claim based on strict liability. Such a claim can be entertained in a writ petition. It is a remedy in addition to the remedy available in private law for damages for tortuous acts of the State or its functionaries or public servants. Exercise of the power by the High Court under Article 226 of the Constitution for grant of compensation for the violation of indefeasible and inalienable right of a person guaranteed under Article 21 is an exercise of the power of the Court under the public law jurisdiction for compelling the violator to make reparation of the wrong done".
Considering the submission as above and the authorities as referred to by the Ld. counsel for the plaintiff, I hold that not only the suit is maintainable for the damages subject to adjustment of the amount already received under different head by the plaintiff but also decision of which judgment proved as Ex. PW2/1 in writ petition would not operate as resjudicata as finding in the writ petition are not on particular issues as also as per cited authorities, the suit for 11 damages lies before the appropriate court having jurisdiction despite damages granted in a writ petition by the Hon'ble High Court. Both the issues are accordingly decided in favour of the plaintiff and against the defendant.
Issue no. 1, 4 and 5 :
Both the issues are taken up together being interconnected one. The decision on the issue is dependent on the evidence adduced by the parties that too in context with the observation of their lordship in case of Smt. Shayma Devi and Ors. (Supra) wherein their lordship were of the view that the amount of the compensation awarded in a writ petition is liable to be adjusted against any amount which may be awarded by way of damages in a private law remedy.
In the present case, the plaintiff in the affidavit filed in evidence U/o 18 CPC also referred to the judgment and award of compensation of Rs. 2 lac in the writ petition as was filed by him while claiming Rs. 10 lac exclusive of compensation of Rs. 2 lac towards damages and expenditure.
The plaintiff proved his enrollment card as advocate as Ex PW1/1 valid upto 31.5.2005 and membership card of DBA as Ex. PW1/2. The plaintiff also proved the legal notice dated 29.11.2006 served upon the defendant U/s 80 CPC as Ex. PW1/3 of which postal receipts and UPC are proved as Ex. 12 PW1/4 and PW1/5 respectively. The plaintiff substantiated the averment of the plaint in toto in the affidavit in respect of the incident dated 22.1.2005 who was hospitalized in AIIMS through police personal after visiting the site of the incidence. The plaintiff also proved on record the bills of the taxi as Ex. PW2/28 to PW2/29 as well as medical record as Ex. PW1/6 to Ex. PW1/20 and medical bills proved by Pw-2 as Ex. PW2/2 to PW2/29 He further depose that an amount of Rs. 1,50,000/- was spent on the medical treatment and a sum of Rs. 1,00,000/- was already been granted by Hon'ble High Court and as such not claiming expenses towards medical treatment prior to the date of order of Hon'ble High Court on 13.1.2006 of which copy is also proved as Ex. PW2/1. The plaintiff proved the concerned record of the police station with regard to the incidence as Mark A to D as well as bills by the plaintiff for treatment as Ex. PW1/14 to Ex. PW1/24. The total sum of bills ex. PW2/28 to Ex. PW2/29 pertaining to taxi/ transport, Ex. PW1/14 to Ex. PW1/24 as well as Ex. PW2/2 to Ex. PW2/27 comes to Rs. 22,823/- whereas Hon'ble High Court under the same head has awarded Rs. 1 lac i.e. Rs 77,177/- in excess which is liable to be adjusted. Nothing substantiated by way of documentary evidence that the plaintiff incurred expenses of Rs. 1,25,000/- on account of damages of right leg and also incurred Rs. 25,000/- for regularly 13 visiting the hospital and expenses of Rs. 75,000/- incurred on special diet whereas Pw-6 further admitted that the treatment was given to the plaintiff on Government expenditure.
The Hon'ble High Court had already awarded Rs. 1,00,000/- to the plaintiff vide judgment in writ petition dated 13.1.2006 to tide over the loss of income but the plaintiff depose about his loss of income for last two years which is being continued as Rs. 2,25,000/- and he has also incurred expenses on servant to look after the day to day needs to the extent of Rs.
50,000/-. The plaintiff has not substantiated by way of documentary , sufficient and cogent piece of evidence that he suffered expenses of Rs. 2,50,000/-. The plaintiff also depose that he took Rs. 2,00,000/- from his friends for medical treatment and day to day requirements and he was earning at the average sum of Rs. 10,000/- per month who was 30 years of age when the incident took place. He admitted that he has not filed any documentary evidence to show that he was earning Rs. 10,000/- per month. He however depose that he remained indoor patient for 15 days in the hospital. The plaintiff witness i.e. PW-5 proved the disability certificate as Ex. PW5/1. The certificate bears the counter signature of plaintiff and Medical Superintendent although the same was prepared by members of the medical board who are still in service. 14
Admittedly the plaintiff is not an income tax assessee nor any assessment order placed and proved on record to show that the plaintiff was earning Rs. 10,000/- per month who enrolled himself only in the year 2000 whereas tortuous act of negligence on account of which the plaintiff suffered injuries is dated 22.1.2005. There is no date of issue of membership card of the DBA proved as Ex. PW1/2. Also the registration card as admitted proved as Ex. PW1/1 is valid up to 31.5.2005. No certificate from the bar is also placed and proved on record so as to say that the plaintiff was in legal profession and able to earn Rs. 10,000/- per month. As per disability certificate of the plaintiff Ex. PW5/1, the plaintiff was 25% physically handicapped and his permanent disability is in relation to his right lower limb.
In support of calculation of loss of income, the plaintiff relied upon S. Achuthan Vs. M. Gopal and another reported in 2003 ACJ 1210 wherein their lordship observed as under :
"Appellant was a young advocate of four years experience in the Bar at the time of the accident. He joined as Junior advocate to senior advocate Majimai Raj, PW-3 and was with him from 29.1.2996 to 30.4.1998 and thereafter set up independent practice and as such he could have earned about Rs. 10,000/- per month as an advocate. Hence, taking all the aspects into consideration, we are of the vie, it would be 15 just and proper, a sum of Rs. 2,00,000/- as claimed in the claim petition instead of Rs. 50,000/- awarded by the Tribunal for future medical expenses. Similarly we also award a sum of Rs. 3,00,000/- as claimed in the claim petition instead of Rs. 50,000/- awarded by the Tribunal towards loss of proper marital alliance. We also increase the compensation amount towards pain and suffering to Rs. 3,00,000/- instead of Rs. 50,000/- awarded by the Claims Tribunal. We also feel it would be appropriate if a sum of Rs. 5,00,000/- is awarded towards permanent disability. Further a sum of Rs. 17,00,000/- is awarded as per the claim made in the claim petition towards the loss of earning power, considering that he is totally immobilized and unable to carry on his advocate practice. In other respects, the amount awarded by the Claims Tribunal is confirmed".
Reference made to the case of Kamla Devi Vs. Govt. of NCT Delhi reported in 2004 (76) DRJ 73 is of no assistance to the plaintiff. This court is also of the view that in the given circumstances except that the guidelines as observed by their lordship, the plaintiff may not be entitled to apply the formula of fetal accident as laid down by their lordship in the cited authority.
Considering the observation of their lordship in case of S. Achuthan Vs. M. Gopal and ors (Supra) as referred to above as well as registration of the bar council of India of the plaintiff in 2000 whose registration was valid up to 31.5.2005 as per Ex. PW1/1 which has not been revalidated, this court is of the view that the plaintiff has not been able to prove that he was 16 earning Rs. 10,000/- as professional fee so as to claim loss of income for the future life and hence entitled to the benefits as were calculated by their lordship in case of S. Achuthan (Supra) . The case of the plaintiff has to be considered on general basis for calculation of income so as to say that the plaintiff is entitled for 1/4th of the amount as per his disability certificate @ 10,000/- per month as was claimed. The authorities sought to be applied are not at all applicable to the plaintiff's case on account of different circumstances and facts. The plaintiff is accordingly held entitled to the 1/4th amount as payable to graduate, literate persons who join the Government service on salary of near about Rs. 7000/- as per fixation of pay and accordingly this court assess the income of the plaintiff as Rs. 7000/- per month after 1.1.2006 when the pay commission was made effective although the amount claimed towards loss of income pertains to the period prior to 1.1.2006 of which consideration is given by calculating the income as follows which would have been earned by the plaintiff till the date of superannuation after deduction of 1/4th as per disability certificate of which amount comes to Rs. 6,30,000/- in term of the age of the petitioner which was stated to be 30 years as on date of accident with retired benefits of which amount is assessed as Rs. 52,500/-. Their lordship of Hon'ble High Court 17 has already granted Rs. 1,00,000/- to tide over the loss of income and as such balance comes to Rs. 5,82,500/- as per citation referred to while disposing of the issues no. 1 and 4.
The plaintiff in addition has claimed compensation in respect of permanent disability as Rs. 5,00,000/- while deposing that he had not totally recovered from the trauma of injuries suffered due to negligence of the defendant. To prove the injuries, the plaintiff has placed sufficient evidence on record while deposing on oath which is supported by the judgment dated 13.1.2006 passed by the Hon'ble High Court as proved on record by Pw-2 as Ex. PW2/1 as well as DD entry proved as Ex. PW3/1 by PW-3 including the proceedings conducted by investigating officer as proved on record as Ex. PW3/2. Although the plaintiff proved the wind report of the Meteorological department as Ex. PW4/1 but the defendant led no evidence to say that wind was the exclusive cause of collapse of the bus stand of which collapsed was admitted by the DW-2 stating that on that date there is some drizzling and the wind was blowing. The deposition of DW-1 that they were not informed by any person about the accident is of no consequence. Further the deposition of DW-3 that there is nothing on record of the DTC that the plaintiff got injured due to this incident is of no consequence as not only the Hon'ble 18 High Court considered that aspect while awarding the compensation to the plaintiff but also the document Ex. PW3/1 and Ex. PW3/2 and the discharge summary as proved by PW-6 as Ex. PW6/5 goes to prove that the plaintiff did suffer the injury on account of collapse of the bus stand of which due care was required to be taken by the DTC/ defendant even in case there was drizzling or wind and same were not only exclusive cause of collapse of the bus stand. It is also so clear from the documents i.e. Medical record Ex PW1/6 to PW1/20 as deposed and proved on record by the plaintiff in respect of the injuries suffered by the plaintiff on account of accident caused by the tortuous act of the defendant as discussed above.
Considering the trauma which the plaintiff suffered on account of negligence and tortuous act of the defendant as well as pain, suffering as well as towards permanent disability to the extent of 25%, this court deem it fit to award Rs. 3,00,000/- considering the observation of their lordship in case of S. Achuthan (Supra) wherein amount of Rs. 3 lac was awarded in the similar facts and circumstances and 25% disability of the petitioner therein. Accordingly the total sum awarded comes to Rs. 6,82,500/- + 3,00,000 + 22,823 - the amount of Rs. 2 lac awarded by their lordship which comes to Rs. 8,05,323/-.
Since the amount was not liquidated amount, it 19 would be not fair to award interest on the amount now fixed by this court from the date of the accident. However, the plaintiff shall be entitled to recover interest @ 9% per annum on the awarded amount in case the amount is not paid within 3 months from the date of the judgment. Both the issues are decided accordingly in favour of the plaintiff and against the defendant.
Relief :
In view of my findings on various issues, the suit of the plaintiff is accordingly decreed for a sum of Rs. 8,05,323/- against the defendant with pendentelite and future interest @ 9% per annum on the awarded amount in case the amount is not paid within 3 months from the date of the judgment. Decree be drawn accordingly. File be consigned to record room.
Announced in open court (D.C. ANAND)
on 21.05.2010 Addl. Distt. Judge (North)-IV/
Delhi
20
CS No.439/09
21.05.2010
Present : None
Vide separate judgment dictated and announced, the suit of the plaintiff is decreed for a sum of Rs. 8,05,323/- against the defendant with pendentelite and future interest @ 9% per annum on the awarded amount in case the amount is not paid within 3 months from the date of the judgment. Decree be drawn accordingly. File be consigned to record room.
(D.C. ANAND) Addl. Distt. Judge (North)-
IV/Delhi/21.5.2010