Delhi District Court
Mohd. Israj S/O Mohd. Kamruddin vs ) Sh. Dharambir (Driver) S/O Sh. Munshi ... on 18 October, 2010
-1-
In the court of Ashwani Sarpal, Addl. District & Sessions Judge
cum Presiding Officer, Motor Accident Claim Tribunal
Rohini Courts, Delhi.
(MACT Case no. 687/10/08)
Mohd. Israj S/o Mohd. Kamruddin
R/o E-266, Jhuggi Suraj Park,
Bawana road, Samaipur Badli, Delhi
-----Petitioner/Claimant
Versus
1) Sh. Dharambir (Driver) S/o Sh. Munshi Ram
R/o H.No. 407, Village Bawana
Dhanni Wada Mohalla, Delhi
2) Sh. Ajit Singh (Owner) S/o Sh. Raj Singh
R/o 924, Village Bawana, Delhi
3) The United India Insurance Co. Ltd.
8th Floor, Kanchanjanga Building,
Barakhamba road, Connaught Place, New Delhi
-----------------Respondents
Date of institution----3-7-2008
Date of decision----18-10-2010
(Application u/s 166 and 140 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:-
-2-As per averments made in the petition, petitioner Mohd. Israj aged about 17 years was going on his scooter no. HR-26J-4889 on 25-5-08 at about 7.30 a.m. towards Samiapur from his residence and when he reached in front of Badli station bus stand, then a bus no. DL-1PB-1068 being driven by respondent no. 1 at high speed and in rash and negligent manner came from behind and overtook the scooter of the petitioner from right side. Bus after overtaking suddenly took left turn and applied sharp brakes and hit the scooter. Due to this accident petitioner suffered fractures and other injuries. A criminal case under section 279/338 IPC was registered against respondent no.1 vide FIR no. 214/08 in police station Samaipur Badli. Petitioner alleged that he was working as water supplier with one M/s Blue Level company and was earning Rs. 4,000/- per month. He claimed sum of Rs. 10,00,000/- as compensation along with interest @ 12% p.a. from respondents under various pecuniary and non pecuniary heads.
Respondents no. 1 & 2 in their written statement though admitted the accident but took a plea that it happened due to own fault of the petitioner as he had no knowledge of the driving of scooter and hit his scooter against the stationery bus. Respondent no. 3 insurance company in its written statement while admitting existence of insurance policy tried to avoid its liability on various technical grounds. On the basis of pleadings of the parties, following issues were framed on 6-4-2009 by my ld. Predecessor;
1) Whether the petitioner received injuries in the road side accident occurred on 25-5-08 at about 7.30 a.m. in front of Badli station bus stand, Suraj Park, Delhi due to rash and negligent driving of R-1/driver of offending vehicle no. DL-1PB-1068? OPP
2) Whether petitioner is entitled to compensation, if so, to what extent and from which of the respondents? OPP
3) Relief.
-3-In order to prove his case, petitioner examined himself only as PW-1 whereas respondents did not choose to lead any evidence. I have heard counsel for the petitioner and gone through the record. Counsel for respondents did not appear to argue on the matter nor filed written submissions despite taking time. My decision on the above mentioned issues is as under:
Issue no. 1:-
Petitioner PW-1 is his statement disclosed how and in which manner accident took place. He alleged that accident took place due to rash and negligent driving of bus by respondent no. 1 as firstly bus overtook him and then suddenly applied brakes by taking left turn. He also placed on record certified copies of criminal case record which point out that respondent no. 1 was prosecuted by police for causing injuries to the petitioner due to rash and negligent driving of offending bus in question. Respondents no. 1 and 2 have taken a plea in their written statement that petitioner hit his scooter in the standing bus but in order to prove this fact, they have not led any evidence nor dared to step into the witness box, for which an adverse inference can be taken against them. Prosecution of respondent no. 1 for criminal offence further prima facie reveals his involvement in causing the accident due to driving offending bus in rash and negligent manner.
However petitioner PW-1 who himself was aged about 17 years at the time of accident was driving a scooter without having any driving license as admitted in his cross examination which was not permissible under law. His driving scooter without any license on a busy public road was not only illegal but also leads to the inference that petitioner had somehow contributed negligence. Counsel for petitioner cited case law Talasila Sandhya vs. A.P. State Road Transport Corpo. 1999 ACJ 629 and argued that no contributory negligence can be attributed to a child but this case law is not applicable to the present facts and circumstances of the case because a person aged about 17 years cannot be treated as a child of tender age. Another case law State of UP vs. Vidyawati Singh 1994 ACJ 553 is also -4- distinguishable from the present case as it is not established by the petitioner on record that he used to drive scooter regularly earlier also and knew how to drive it. In such situation though negligent driving of respondent no. 1 is also established but certainly petitioner also is liable to bear for some contributory negligence. I am of the view that in the present circumstances, 50% deduction is required to be made from the compensation amount due to contributory negligence of the petitioner. This issue is thus decided partly in favour of petitioner and partly against him.
Issue no. 2:-
PW-2 has produced various medical prescription and bills Ex. PW1/1 to 33 to show that he had suffered various injuries due to accident. He had suffered fractures of nasal bones, right forearm, left knee, right wrist. His two teeth were also partly broken as stated in cross examination. However he did not remain admitted in hospital even for a single day. He had not produced any certificate to show that he suffered any disability. His treatment continued for about two months only as last prescription was of dated 7-7-2008. Thereafter after one year, he got himself checkup on 4-7-09 as per prescription Ex. PW1/5 but it also does not point out any seriousness or complication. In such situation, I by taking into consideration treat that petitioner could not work overall for about 3 months and suffered loss of salary for this period.
Petitioner alleged that he was working as water supplier with one M/s Blue Level company but no document has been produced to show his employment in this company and earning of Rs. 4,000/- per month as alleged. He even did not disclose where this company is situated. In such circumstances, it can be presumed that he was earning sum of Rs. 3633/- per month according to scale of minimum wages for unskilled person. Petitioner can be compensated for loss of salary of three months only to an extent of Rs. 10899/- (round figure at Rs. 10900/-).
Petitioner has produced various medical bills on record. However some of medicine bills cannot be reimbursed to him as those were related to -5- some Desi medicine 'Luk-man-e-Hayat' 'Ghrit Kumari' purchased without any prescription of doctor. The amount of bills Ex. PW1/27 and 31 also cannot be allowed as these bills are only on plain papers without any name and stamp of any chemist which allegedly issued it. Thus after deducting the value of those desi medicine bills, and unreliable bills, petitioner is entitled to claim the amount of Rs. 2772/- as round figure for medicines purchased from the market.
Petitioner stated that he would incur about 15 to 20 thousand on denture/artificial teeth in future but in this regard there is no estimate of any doctor on record. He has claimed that he had spent Rs. 10,000/- upon special diet, Rs. 6,000/- on attendant and Rs. 8,000/- upon conveyance. This claim is highly exorbitant and cannot be accepted keeping in view the status of the petitioner and his pre-accident poor financial position. No proof of spending upon these items is brought on record. Though normally in case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc. is provided instead of or in addition to the normal food but it cannot be worth Rs. 10,000/- in a period of about two months as claimed. Accordingly I am of the view that maximum petitioner can be paid lump sum Rs. 10,000/- towards special diet, future treatment of teeth and conveyance charges.
Judicial notice can be taken of the fact that due to fractures etc., normal human life is also affected. Petitioner must have faced difficulty and inconvenience even to perform daily personal routine acts during period of treatment. He must have suffered great pain and sufferings. He must not have enjoyed the amenities of life properly for some time. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the status and condition of the petitioner, extent of fractures etc., he is granted lump sum amount of Rs. 50,000/- towards pain and sufferings, inconvenience and loss of amenities etc. Respondent no. 3 had not brought on record any evidence to point out that driving license of the respondent no. 1 was not valid, genuine or proper. The offending vehicle was admittedly insured with the respondent no.-6-
3. Nothing is alleged that respondent no. 3 is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured or it has any limited liability. Keeping in view the existence of valid insurance policy, respondent no. 3 alone becomes entitled to pay entire compensation amount.
In view of the above discussions, the amount of compensation payable to the petitioner comes to Rs. 73,672/- as under payable by respondent no. 3 only:
a) Loss of income----------------------------------------Rs. 10,900/-
b) Medical expenses-------------------------------------Rs. 2772/-
c) Pain and sufferings etc.-----------------------------Rs. 50,000/-
d) Special diet & conveyance charges----------------Rs. 10,000/-
__________________ Total Rs. 73,672/-
Since 50% has to be deducted from the compensation amount towards contributory negligence so the net amount payable to the petitioner comes to Rs. 36,836/-. Petitioner shall be entitled to interest at the rate of 7.5% p.a. on this amount from the date of institution of the petition i.e. 3-7-2008 till realization.
Issue no. 3 (Relief):-
On the basis of findings given above, present petition is disposed off and award is passed. Respondent no. 3 insurance company is directed to pay within 30 days a sum of Rs. 36,836/- to the petitioner along with interest at the rate of 7.5% p.a. from 3-7-2008 till this amount is fully realized. File be consigned to record room.
(Ashwani Sarpal)
Dt. 18-10-2010 Judge, MACT (Outer-II)