Delhi District Court
Sh. Ramsewak S/O Sh. Darshan Lal vs Sh. Rajesh Sharma S/O Sh. B.S. Sharma on 16 March, 2015
1
IN THE COURT OF MS. BARKHA GUPTA : JUDGE : PO
MACT :NOTH WEST DISTRICT: ROHINI COURTS: DELHI
MACT No. : 717/08
UNIQUE ID No. : 02404C0096352008
Sh. Ramsewak S/o Sh. Darshan Lal,
R/o B789, Gali No.25,
Sant Nagar, Burari, Delhi ...(Injured/Petitioner)
Versus
1. Sh. Rajesh Sharma S/o Sh. B.S. Sharma,
R/o Village Malha Majra, P.O Chhatera,
Tehsil & District Sonipat,
Haryana. ...(Driver/Respondent no. 1)
2. Smt. Suman Devi W/o Sh. Bal Singh, R/o Village Malha Majra, P.O Chhatera, District Sonipat, Haryana. ....(Owner/Respondent no. 2)
3. The ICICI Lombard General Insurance Company Ltd., ICICI Bank Tower, Bandra Kurla Complex, Bandra East, Mumbai400051. ....(Insurer/Respondent no.3) MACT No.717/08 Ramsewak Vs. Rajesh Sharma 1 of 15 2 Other details: DATE OF INSTITUTION : 21.08.2008 DATE OF RESERVING JUDGMENT : 09.03.2015 DATE OF PRONOUNCEMENT OF JUDGMENT : 16.03.2015 AWARD/JUDGMENT
1. The petition under sections 166 & 140 of the Motor Vehicles Act, 1988 has been filed by the petitioner/injured namely Sh. Ramsewak, wherein he has prayed that compensation to the tune of Rs. 3,00,000/ alongwith interest at the rate of 12% per annum be awarded in his favour from date of filing of petition till realisation of the compensation amount.
2. Brief facts of the case are that on 05.08.2008 at about 3:30 p.m, the petitioner was going from Azadpur Mandi to his residence at Burari on his motorcycle bearing registration No. DL1SP3140 and when he reached in front of N.D.P.L Power House, near Kewal Park Extension, Azadpur, Delhi, the offending vehicle i.e the crane bearing registration No. HR696642, which at the relevant time was driven by Sh. Rajesh (R1) in a rash and negligent manner came and it over turned and in the process, the MACT No.717/08 Ramsewak Vs. Rajesh Sharma 2 of 15 3 petitioner alongwith his motorcycle came under the offending vehicle due to which the petitioner sustained grievous injuries on his person and he was rescued by the public persons, who also admitted him in Vinayak Hospital and after sometime, the police officials also reached to the hospital and recorded his statement. The petitioner has further submitted that in the accident, he had suffered from multiple fractures on his left leg 3rd, 4th and 5th M.T and fibula head (left) and on various other injuries as per treatment record due to which he remained admitted in the said hospital till 10.08.2008, during which period his surgery was also conducted by the doctors.
The petitioner has submitted that he suffered from permanent disability and is not able to perform any work and at the relevant time, he was dealing in the business of selling fresh fruits at Azadpur Mandi and used to earn Rs. 16,000/ per month, but due to the said accident, he had to close his business. Further, FIR No. 175/08, u/s 279/337 IPC was also registered against R1 by the police officials of P.S. Adrash Nagar regarding causing the said accident. The petitioner has prayed MACT No.717/08 Ramsewak Vs. Rajesh Sharma 3 of 15 4 that compensation of Rs. 3,00,000/ alongwith interest at the rate of 12% per annum be awarded in his favour and all the respondents are jointly and severally liable to pay him the compensation amount as Sh. Rajesh Sharma/R1 was driving the offending vehicle at the relevant time, Smt. Suman Devi/R2 was the registered owner of the offending vehicle and the offending vehicle was duly insured with The ICICI Lombard General Insurance Company Ltd./R3.
3. As per record, in the case in hand, Sh. Rajesh Sharma/R1 and Smt. Suman Devi/R2, who are the driver and owner of the offending vehicle respectively have not filed any written statement or reply of the petition and vide order dated 26.02.2009, defence of R2 was struck off by my Ld. Predecessor.
4. The Insurance Company/R3 has filed its written statement wherein it has interalia submitted that R1 was not having any valid driving licence and the offending vehicle was being run without permit. It has also submitted that the offending vehicle was duly insured with it in the name of R2 vide policy cover MACT No.717/08 Ramsewak Vs. Rajesh Sharma 4 of 15 5 note bearing No.3008/52379565/00/000, which was valid from 22.08.2007 to 21.08.2008.
5. As per record, vide order dt. 26.02.2009 following issues were framed by my learned Predecessor:
1. Whether on 05.08.08 at about 3:30 p.m, near NDPL Power House, Kewal Park, crane No. HR696642, which was being driven rashly and negligently overturned and caused injuries to petitioner which was riding on his motorcycle? OPP
2. Whether petitioner is entitled to compensation as prayed for if so from which of the respondent? OPP
3. Relief.
6. In the case in hand, the petitioner/injured Sh. Ramsewak has examined himself as PW1 and lead his evidence by way of affidavit which is Ex.PW1/A. It is pertinent to mention here that none of the respondents have adduced any evidence on record.
7. I have heard final arguments as advanced by Advocate Sh. Ramanand Chaudhary, Ld. Counsel for the petitioner & Advocate Sh. S.K. Tyagi, Ld. Counsel for the Insurance MACT No.717/08 Ramsewak Vs. Rajesh Sharma 5 of 15 6 Co./R3. None has appeared for R1 and R2 to advance final arguments. Now, I proceed to discuss the issues in the succeeding paragraphs.
8. Issue No.1 "Whether on 05.08.08 at about 3:30 p.m, near NDPL Power House, Kewal Park, crane No. HR696642, which was being driven rashly and negligently overturned and caused injuries to petitioner which was riding on his motorcycle? OPP"
9. The onus to prove the said issue is on the petitioner. In the case in hand, the petitioner/injured Sh. Ramsewak has examined himself as PW1 and lead his evidence by way of affidavit which is Ex.PW1/A. He has also relied upon various documents as Ex.PW1/A to Ex.PW1/F and has also filed the photocopies of criminal case record as Mark A collectively.
During crossexamination on behalf of the insurance company/R3, he has interalia stated that he has not filed the income tax returns for the year 20072008, 20082009 and 20092010 and has filed the income tax returns for the financial MACT No.717/08 Ramsewak Vs. Rajesh Sharma 6 of 15 7 years 20052006 and 20062007. He has also stated that at the time of accident, the crane i.e the offending vehicle was moving on the road and he was on the right side of the offending vehicle. He has also stated that construction of Metro work was going on and condition of the road was proper. He has denied if the said accident was caused due to his fault and has further denied that the documents filed by him are false and fabricated.
10. In the case in hand, the petitioner Sh. Ramsewak, who is the injured as well has examined himself and has testified by way of affidavit. He has clearly narrated the manner in which the said accident was caused by R1, wherein he sustained various injuries and had to remain admitted in hospital for a considerably long time. He has clearly deposed that the said accident had occurred due to rash and negligent driving of R1, who at the relevant time was driving the offending vehicle with which the said accident took place. Though, he was cross examined at length by the Insurance Company/R3 as already discussed, however nothing is placed on record to the contrary to show that he is deposing falsely or that the said accident did MACT No.717/08 Ramsewak Vs. Rajesh Sharma 7 of 15 8 not occur in the manner as testified by him. It also cannot be lost sight off that R1, who was driving the offending vehicle at the relevant time has not come forward to crossexamine the petitioner on any aspect to rebut his testimony regarding rashness/negligence on part of R1 in driving the offending vehicle. As such, there is no material before the court even to suggest remotely that the petitioner is deposing falsely or that the said accident did not occur in the manner as deposed by him or that he did not sustain injuries in the said accident. Even, R2, who is owner of the offending vehicle did not crossexamine the petitioner on any count and the entire testimony of the petitioner has remained unchallenged and from the crossexamination of petitioner as conducted on behalf of Insurance Company/R3, nothing is shown on record that he is deposing falsely.
Further, the certified copies of criminal case pertaining to FIR No. 175/08 U/s 279/337 IPC are also placed on record including the copy of FIR and charge sheet u/s 173 Cr. PC etc., which also clearly show that R1 was prosecuted and arrested in the said accident case regarding causing the present accident MACT No.717/08 Ramsewak Vs. Rajesh Sharma 8 of 15 9 wherein the petitioner had sustained injuries and the offending vehicle was also seized. It is nowhere shown on record or even whispered that R1 had made any complaint to anyone regarding his false implication in the case. There is nothing on record to suggest even remotely if R1 did not cause the said accident in the manner as narrated by the petitioner. Accordingly, in view of the totality and fact and circumstances of the case and on the basis of material as placed on record, there is no reason to disbelieve the version of the petitioner and hence, in view of above discussion, Issue No.1 is decided in favour of the petitioner and against the respondents.
11.Issue no.2 "Whether petitioner is entitled to compensation as prayed for if so from which of the respondent? OPP"
12. The petitioner has examined himself as PW1 and has filed certain documents in support of his claim qua expenses incurred by him on his medical treatment. The petitioner has relied upon the medical bills which are Ex. PW1/C (colly 18 sheets) and the same are nowhere shown to be false or fabricated, as per which, MACT No.717/08 Ramsewak Vs. Rajesh Sharma 9 of 15 10 the petitioner had spent an amount of Rs. 17,335/ on his medical treatment and nothing is shown if the said documents are not genuine or that the petitioner had not spent the said amount on his treatment. Hence, in the given facts and circumstances, as per the documents produced and proved by the petitioner, an amount of Rs. 17,335/ is awarded to the petitioner towards his medical expenses.
13. Amount granted to the petitioner towards Pain, Suffering, Special Diet and attendant charges. As per record, the petitioner has also filed and proved the document Ex. PW1/B (colly 8 pages) regarding his medical treatment which clearly shows that the petitioner was admitted in the Vinayak hospital on 05.08.08 and was discharged on 10.08.08 and thereafter, he also visited in the clinic of Dr. Ashok Khurana for his treatment. The said documents are nowhere under dispute by any of the respondents and accordingly, in the given facts and circumstances and on the basis of material produced and proved before the court, in considered opinion of the court, the petitioner must have MACT No.717/08 Ramsewak Vs. Rajesh Sharma 10 of 15 11 suffered pain, agony and shock due to the injuries sustained in the accident and accordingly, keeping in view the nature of his injuries, an amount of Rs. 15,000/ is granted to him towards his pain and sufferings. Further, an amount of Rs. 3,000/ is also granted to him towards his special diet and an amount of Rs. 2,000/ is also granted to him towards his conveyance charges. Further, as per document Ex. PW1/C, which are the medical bills of the petitioner which show that his treatment had continued upto one month and during the said period, his family members must have attended him and therefore, the petitioner is also entitled for attendant charges and hence, a lump sum amount of Rs. 5,000/ is also granted towards attendant charges to the petitioner.
It is pertinent to discuss that during the cross examination of the petitioner, he has admitted that he has not filed any document of OD claim of his motorcycle before this court and had filed on record only the bill of damage of motorcycle which is Ex. PW1/F (colly 3 sheets) of Rs. 3,824/. The petitioner has not filed anything on record which shows that he has taken OD MACT No.717/08 Ramsewak Vs. Rajesh Sharma 11 of 15 12 claim. Therefore, in the given facts and circumstances, it is presumed that he has not taken any OD claim and therefore, he is entitled for a sum of Rs. 3,824/ towards repairing of his motorcycle.
14. It is appropriate to discuss that though the petitioner has claimed that he had suffered from permanent disability, but he has nowhere testified as to what extent, he had suffered from permanent disability and there is no supporting document regarding his permanent disability. Further, he has not examined any doctor to enable the court to ascertain the degree and extent of permanent disability, if any suffered by the petitioner and in the given facts and circumstances and in view of above, the only reasonable conclusion that can be drawn is that the petitioner did not suffer from any permanent disability and hence, he is not entitled for any amount on that count.
15. Loss of income As per record, the petitioner has filed his income tax returns for the year 200607 & 200708 and as per income tax return for the year 200708, his gross income is shown as Rs. 1,50,200/ MACT No.717/08 Ramsewak Vs. Rajesh Sharma 12 of 15 13 p.a and after deduction of tax of Rs. 1,145/, it comes to Rs. 1,49,055/ p.a. Therefore, in the given circumstances, the annual income of petitioner is Rs. 1,49,055/. Accordingly, as per treatment of record of petitioner which is Ex. PW1/C which are the medical bills shows that petitioner was treated upto one month only and therefore, the petitioner is entitled for one month's amount as loss of income which comes to Rs. 12,421/. In the given facts and circumstances, this court is of the considered opinion that the petitioner is entitled for one month's amount as loss of income and an amount of Rs.12,421/ for loss of income is awarded to the petitioner.
16. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs.58,580/ which is tabulated as below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 15,000/ 2 Special diet Rs. 3,000/
3. Conveyance Charges Rs 2,000/
4. Attendant Charges Rs. 5,000/
5. Medical bills Rs. 17,335/ MACT No.717/08 Ramsewak Vs. Rajesh Sharma 13 of 15 14
6. Loss of income Rs. 12,421/
7. Repairing of motorcycle Rs. 3,824/ Total Rs. 58,580/
17. In the case in hand, the ICICI Lombard General insurance company/R3 has not been able to show of place anything on record that Sh. Rajesh Sharma/R1, who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle or that the permit of offending vehicle was not valid and as per settled law, since the offending vehicle was duly insured with the ICICI Lombard General Insurance company/R3, hence R3 is liable to pay the entire compensation amount to the petitioner as per rules. Accordingly, in the case in hand, The ICICI Lombard General Insurance co. Ltd. (R3) is directed to deposit with this Tribunal within 30 days from today the awarded amount of Rs.58,580/ alongwith interest at the rate of 7.5 % per annum from the date of filing of the petition till notice of deposit of award amount to be given by R3 to the petitioner and his counsel. The entire award amount be released to the petitioner in cash as per rules. MACT No.717/08 Ramsewak Vs. Rajesh Sharma 14 of 15 15
18. The Petition is accordingly disposed of. File be consigned to record room as per rules. Copy of order be given to parties for necessary compliance as per rules.
(BARKHA GUPTA)
ANNOUNCED IN THE OPEN JUDGE/MACT
COURT ON 16.03.2015 NORTH WEST
ROHINI.DELHI
MACT No.717/08 Ramsewak Vs. Rajesh Sharma 15 of 15