Delhi District Court
Sh Harish Prasad Tiwari vs Abhishek Pal S/O Sh Jagdambika Pal on 26 March, 2009
1
IN THE COURT OF SH. J.P. S.MALIK, PO-MACT,
PATIALA HOUSE COURTS, NEW DELHI.
PETITION NO.:- 16/07
DATE OF INSTITUTION:- 04.01.2007
IN THE MATTER OF:-
Sh Harish Prasad Tiwari
S/o Sh P.Tiwari
R/o Phase V, Aya Nagar, New Delhi. --- Petitioner
Versus
1. Abhishek Pal S/o Sh Jagdambika Pal
R/o B-24, PD Floor, ARD City,
Gurgaon, Haryana.
2. Smt Sneh Lata Pal
R/o Dali Bagh Colony, Lucknow, UP.
3. New India Assurance Company Ltd.,
Lucknow. --- Respondents
Arguments heard on 20.03.2009 Date of decision: 26.03.2009 AWARD This is a petition u/s 166/140 of M.V. Act filed by petitioner Harish Prasad Tiwari, for compensation for the injuries received him in an accident on 10.12.2003. Claim has been filed for a sum of Rs 15 lacs.
2. The facts as per the petition filed are that on 10.12.2003, petitioner was returning to his house at Aya Nagar, New Delhi by a 2 bus and after he got down from the bus at bus stand MB Road, Aya Nagar, New Delhi and was in process of crossing the road, he was hit by car no. UP 3R AW 2000 being driven by R-1 Abhishek Pal in a rash and negligent manner. After the accident, petitioner was taken to Indian Spinal Injuries Centre where his MLC was prepared and he was admitted there. From there, petitioner was shifted to Batra Hospital, New Delhi where also he continued to receive treatment for a considerable time. The car no. UP 3R AW 2000 was being driven by R-1Abhishek Pal at the time of the accident, was owned by R-2 Smt Sneh Lata Pal and was insured with R-3 insurance company.
3. Notice of the petition was issued to all three respondents. WS was filed on behalf of R-1 and R-2 and also on behalf of R-3 insurance company.
4. In the light of pleadings of the parties, following issues were framed:
ISSUES:
1.Whether Harish Prasad Tiwari received injuries in the accident on 10.12.2003 due to rash and negligent driving of vehicle bearing no. UP 3R AW 2000 on the part of R1?
2. To what amount of compensation is the petitioner entitled and from whom?
3. Relief.3
5. Petitioner filed his affidavit of evidence and was cross examined on behalf of R-1 and R-2 and also on behalf of R-3, insurance company. One more witness being PW-2 was also examined in evidence of the petitioner and was cross examined on behalf of R-3 insurance company. No witness was examined in evidence of any of the respondents.
6. Arguments were heard on behalf of petitioner as well as R-3 insurance company. None appeared for R-1 and R-2 to make any submissions and I hold as under:
7. ISSUE NO. 1
Petitioner, through his affidavit of evidence has deposed that accident was caused because of the rash and negligent driving of car no. UP 3R AW 2000 by R-1 on 10.12.2003 at about 9.15 PM, near bus stop, MB Road, Aya Nagar, New Delhi. Petitioner has also placed on record certified copies of the documents filed by the police in criminal proceedings which were initiated against R-1 vide FIR No. 599/03 PS Mehrauli U/s 279/338 IPC including the FIR Ex. PW1/A and also site plan, chargesheet etc. There was no substantial challenge to the testimony of the petitioner as regard the circumstances in which the accident had taken place as routine suggestions were given and no witness in evidence of R-1 and R-2 was produced, even R-1, who was driving the vehicle at the time of the 4 accident has not been examined. In view of the deposition of the petitioner, certified copies of the documents filed by the police in criminal proceedings and in view of the fact that no evidence to the contrary has been adduced on behalf of R-1 and R-2, I hold that accident was caused due to rash and negligent driving of car no. UP 3R AW 2000 on 10.12.2003 at about 9.15 PM near bus stop, MB Road, Aya Nagar, Mehrauli, New Delhi, resulting in injuries to the petitioner as per MLC Ex. PW1/1. As per the admitted facts, the vehicle was owned by R-2 and was insured with R-3 insurance company.
8. ISSUE NO. 2
As regards the actual amount of compensation to the petitioner, the petitioner through his affidavit of evidence has claimed that he incurred expenses of Rs 592066/- on his treatment and has placed on record bills Ex. PW1/J-1 to Ex. PW1/J-59. However, the medical bills placed on record and being claimed as the expenses incurred by the petitioner do not inspire the requisite confidence. For instance Ex. PW1/J-1, a bill claimed to be of an amount of Rs 140000/- is only a request by Batra Hospital to deposit the amount. Similarly Ex. PW1/J-2 is the request of Batra Hospital to deposit a sum of Rs 125000/-. Similarly Ex. PW1/4, a bill claimed to be of an amount of Rs 290000/-, is only a record copy with note that same was neither a bill nor a receipt. Accident had taken place in the year 2003 5 and bills placed on record are uptill year 2007. Disability certificate was issued to the petitioner on 1.6.2007 and bills have been produced for a period beyond that also. Not only this, bills produced are also of other persons like Ex. PW1/J-52, in the name of one Rani, Ex. PW1/J-46 and Ex. PW1/48 are in the name of Tula Singh. Ex. PW1/J-47, Ex. PW1/J-49 and Ex. PW1/J-50 are without name of the patient. Ex. PW1/J-43 for a sum of Rs 1750/- in the name of Mr Mazibul Rehman. Ex. PW1/J-53 to Ex. PW1/J-59 in the name of Harish Prasad Ojha, resident of Nepal. Similarly petitioner has placed on record several bills from Ex. PW1/17 to Ex. PW1/41 of having purchased medicines or got laboratory tests done on a reference from AIIMS Hospital in year 2004 but nowhere in the petition filed or deposition filed, petitioner has claimed that he received treatment at AIIMS Hospital. The documents produced by the petitioner in support of the deposition that he incurred expenses of about Rs six lacs are not reliable and only a compensation of Rs 25000/- is allowed to the petitioner for expenses incurred by him on treatment since original medical bills of Batra Hospital are not being produced. As per the MLC and other documents relating to the treatment of the petitioner including the disability certificate, petitioner was diagnosed as a case of post head injury right heniparesis with united fracture right femur and right tibia and fibula and was declared to be 50 per cent physical handicap in relation to right side of his body. Over all disability of the petitioner is taken as 30 per cent. Petitioner in the affidavit of 6 evidence filed and also through his affidavit of evidence has deposed that he was working as a Office Boy with M/s ICI India Ltd., DLF, Phase - I, Gurgaon, Haryana and was getting a salary of Rs 4000/- per month. However, documents in proof of the employment of the petitioner has not been placed on record and petitioner in his cross examination admitted that he was working on daily basis and in the circumstances, compensation is computed on the basis of prescribed minimum wages rates applicable as on the date of the accident i.e. 10.12.2003 which were Rs 2783.90/-. Compensation for loss of income is allowed for a period of 12 months in view of the nature of injuries and same comes out to Rs Rs 2783.90 X 12 = Rs 33406/-.
A sum of Rs 40000/- are allowed to the petitioner for pain and sufferings. The petitioner was aged 33 years at the time of the accident and appropriate multiplier for computation of compensation as per schedule II in reference to section 163A of the M.V. Act shall be 17 and compensation comes out to Rs 2783.90 X 30 divide by 100 X 12 X 17 = Rs 170374/-.
9. PW-2 Yogesh Gupta has claimed that he had been taking the petitioner from his house to hospital and during a period of about two years petitioner must have paid him a sum of Rs 50000/- to Rs 60000/-. since there is no evidence as regard the number of visits of the petitioner to the hospital, on assumptive basis a sum of Rs 15000/- is allowed to the petitioner for expenses incurred on 7 conveyance. Rs 20000/- are allowed for expenses on nutritious diet. 10. ISSUE NO. 3
An award for a sum of Rs 303780/- (Inclusive of interim award, if any) alongwith simple interest @ 9% per annum from the date of filing of the petition i.e 04.01.2007 till realisation is passed in favour of the petitioners and against R-1 and R-2. Liability shall be discharged by respondent within a month. 80 per cent of the award amount shall be kept in a fixed deposit in a nationalised bank for a period of seven years. Further the petitioner shall have the right to receive the interest on the amount kept in FDR directly without reference to the court on a monthly/quarterly basis.
Order dictated and announced (J.P. S.MALIK) in the open court on 26.03.2009 Judge MACT/New Delhi