Delhi District Court
Pankaj Gupta S/O Gyan Chand Gupta vs Vinod Kumar S/O Rajbir Singh on 6 August, 2016
IN THE COURT OF SURESH KUMAR GUPTA
PRESIDING OFFCER-MOTOR ACCIDENT CLAIMS TRIBUNAL,
SHAHDARA, KKD, DELHI
Unique Case ID No. 02402C0082722014
MAC No. 01/14
Pankaj Gupta S/o Gyan Chand Gupta
R/o A-4080, Ram Nagar Ashok Marg,
Gali no.1, Shahdara, Delhi-32.
............Petitioner
Versus
1. Vinod Kumar S/o Rajbir Singh
R/o Village Nagla Usarsain,
P.S. B.B. Nagar, Distt. Bulandshahar,
U.P (Driver)
2. Manoj Kumar S/o Dhaniram
R/o G-41, Sector-27, Noida, G. B. Nagar,
U.P (Owner)
3. National Insurance Co. Ltd.
124, Jeevan Bharti Building,
Cannought Place, New Delhi
(Ins. Co.)
..........Respondents
MAC No. 01/14 1/13
Date of institution : 02.01.2014
Date of arguments : 28.07.2016
Date of Judgment : 06.08.2016
JUDGMENT
1. The petitioner has filed the petition with the averments that on 26.07.2013, at 8.30 a.m., he along with other persons was going in a TSR and reached in front of Village Tilapta, Surajpur, GB Nagar, U.P. One Bus no. UP-16AT-0630 being driven by respondent no. 1 came from opposite side in a high speed and in a rash and negligent manner hit against TSR as a result he along with other sustained injuries. One person has expired in the accident. He was removed to hospital. FIR no. 301/13, Crime No. 417/13, PS, Surajpur, U.P was recorded against respondent no. 1. The accident has taken place due to the rash and negligent of respondent no. 1.
2. He has sustained injuries in the abdomen-liver, contusion left kidney with hemoparitony dislocation hip, multiple facial, scalp lacerations, damage in eye, teeth were broken and other injuries. He has taken treatment from Kailash Hospital and Mohan Swaroop Hospital, Dadri, U.P. He was working with Upper India Transport Co. Opposite Fena Company, Main Dadri-Noida Road, Devla, Surajpur, U.P and getting a salary of Rs. 15,000/- per month. He has spent Rs. 5 lacs on his treatment. His health has been deteriorated. He has under gone physical and mental pain.
MAC No. 01/14 2/13He has suffered financial loss. Respondent no. 2 is owner of the vehicle which is duly insured with respondent no. 3. Hence, this petition.
3. The respondent no. 1 and 2 have filed the joint reply to the effect that there is no negligence on the part of respondent no. 1. The driver of TSR was driving his vehicle in a rash and negligent manner and caused the accident as a result petitioner has sustained injuries. Respondent no. 1 has been falsely implicated. Respondent no. 1 is holding a valid driving licence. The vehicle is duly insured with respondent no. 3.
4. The respondent no. 3 has filed the reply with the averments that this court does not have territorial jurisdiction to decide the petition. The vehicle in question is duly insured with respondent vide policy no. 361300/31/12/6300003793 valid till 18.08.2013. The respondent is entitled all the defences available under MV Act. The allegations of petitioner are denied.
5. From the pleading of the parties following issues are framed on 30.08.2014 :-
1. Whether the petitioner suffered injuries in the accident dated 26.07.2013 involving vehicle no.
UP-16AT-0630 being driven by R1 rashly and negligently?
2. Whether the petitioner is entitled for any MAC No. 01/14 3/13 compensation, if so, to what amount and from whom?
3. Relief.
6. Petitioner has examined four witness. Respondents have not examined any witness.
7. I have heard Ld. Counsel for the parties and perused the record of the case. My issuewise findings are as under:-
ISSUE NO. 18. PW-1 Pankaj Gupta has filed his affidavit Ex.PW-1/A wherein he has corroborated the version of the petition as set out in the beginning while briefing the facts. Ex.PW-1/1 is the rent agreement. During cross-examination by R3, he stated that there were 4-5 passengers in the TSR against the sitting capacity of 3 passengers. The suggestion is denied that accident has taken place due to over loading and negligence of driver of TSR.
9. I have heard ld. Counsel for the parties and perused the record. The testimony of PW-1 is material in nature as he is the victim. It is clear from the evidence on record that on 26.07.2013, at 8.30 a.m., PW-1 along with other passengers was going in a TSR and reached in front of Village Tilapta, Surajpur, GB Nagar, U.P. One Bus no. UP-16AT-0630 being driven by respondent no.
MAC No. 01/14 4/131 came from opposite side in a high speed and in a rash and negligent manner hit against TSR as a result he along with other sustained injuries. He was removed to hospital. FIR no. 301/13, Crime No. 417/13, PS, Surajpur, U.P was recorded against respondent no. 1. The accident has taken place due to the rash and negligent of respondent no. 1. Respondent no. 1 and 2 have not cross-examined PW-1. Respondent no. 1 is the driver of offending vehicle. He is the best person to controvert the testimony of PW-1. FIR has been registered against respondent no. 1. He has not made any complaint against the IO to his Sr. Officials in case he has not caused any accident or he was not at fault. Respondent no. 3 has failed to elicit anything from the testimony of PW-1 in favour of respondents. The testimony of PW- 1 on the material points has gone unrebutted. His version is consistent with the version recorded in FIR. PW-1 is the victim who has given the details of the accident in his testimony. His testimony cannot be ignored. All these fact show that accident has taken place due to the rash and negligent driving of respondent no. 1. The issue no. 1 is decided against the respondents.
ISSUE NO. 210. PW-1 has categorically stated in his affidavit Ex.PW-1/A that he has sustained grievous injuries i.e. abdomen-liver, contusion left kidney with hemoparitony dislocation hip, multiple facial, scalp lacerations, damage in eye, teeth were broken and other injuries.
MAC No. 01/14 5/13He was removed to Kailash Hospital where he remained admitted from 26.07.2013 till 01.08.2013. He was operated upon. He was shifted to Mohan Swaroop Hospital, Dadri, U.P on 03.08.2013 and remained admitted till 09.08.2013. He was again admitted to Navin Hospital where he remained admitted from 12.10.2013 till 16.10.2013. His OPD treatment continued for five months. He was working with Upper India Transport Co. Opposite Fena Company, Main Dadri-Noida Road, Devla, Surajpur, U.P and getting a salary of Rs. 15,000/- per month. He has spent Rs. 5 lacs on his treatment, Rs. 25000/- on conveyance and Rs. 20,000/- on special diet. He was handicap due to Polio. He has sustained disability of 55% in his left leg. He has become permanently disabled. His health has deteriorated. He needs Rs. 50,000/- for future treatment. Ex.PW-1/1 is his voter I card, Ex.PW-1/3 is medical bills and Ex.PW-1/4 is treatment record and medical bills. During cross-examination by R3, he stated that he has not filed any income or employment proof. The suggestion is denied that he has not spent any amount on his treatment. It is correct that he was disabled due to polio prior to the accident. He has not filed any document that his disability has increased after the accident.
11. PW-2 Parmanand, Medical Record Keeper, Kailash Hospital, Noida stated that he has been authorzied vide letter Ex.PW-2/A to depose in the court. Ex.PW-2/1 to 2/3 are the attested copies of medical treatment record, discharge summary MAC No. 01/14 6/13 and medical bills.
12. PW-3 Sunil Kumar, Record Keeper, Navin Hospital, Gautam Budh Nagar stated that he has been authorized vide letter Ex.PW- 3/1 to depose in the court. Ex.PW-3/2 and 3/3 are the medical treatment record and attested copies of medical bills and Mark A is the discharge summary.
13. PW-4 Mukesh Nagar, Supervisor, Mohan Swaroop Hospital, Dadri, U.P stated that Ex.PW-4/1 and 4/2 are the copies of discharge slip, case summary and attested copies of bill of the petitioner.
14. Heard and perused the record. It is clear from the record that petitioner was initially taken to Kailash Hospital Ltd., Greater Noida, U.P. The discharge summary Ex.PW-2/1 shows that a hypodense area with contrast at periphari is seen in segment 7 of right lobe of lever likely hematoma with possibility of injury of hepatic veins, contusion was seen at the lower pole of left kidney, hemoperitonium seen in the perihepatic, perisplanic, right para colic gutter region and pelvis. Fracture superior and inferior rami of right pubic rami and superior rami of left pubic bone was seen. The hospital adopted the course namely suturing large L/W frontal, large L/W occipital, large L/W gingivo-buccal, large L/w lower limb and multiple L/w face and mouth. The closed reduction dislocation hip was done. Exploratory laparotomy, repair of MAC No. 01/14 7/13 transverse misentric vesels and small bowl sirosa was done, both eye upper lid and lower lid repair with conjuctivo plasti was done, debridement and primary closer of wound was done. He has remained admitted from 26.07.2013 till 02.08.2013. On 03.08.2013, he was admitted to Mohan Swaroop Hospital, Dadri and remained admitted till 09.08.2013 which is clear from discharge slip Ex.PW-4/1. On 12.10.2013,he was again admitted to Navin Hospital, Dadri and discharged on 16.10.2013. This is clear from the treatment record Ex.PW-3/2. He has regularly visited the hospital for his treatment. He has admitted thrice to the hospital. There is no disability certificate on record. He has undergone enormous pain and sufferings during the period of his treatment. To my mind, he is entitled for Rs. 50,000/- on account of pain and sufferings.
15. The petitioner has taken dental treatment from Arya Dental Clinic, Kaushambi, Ghaziabad. The treatment slip is dt. 30.09.2015. The petitioner has taken Root Canal Treatment. A bridge is fixed. He has incurred an expenditure of Rs. 64500/- on this treatment as apparent from receipts dt. 06.10.2015 and 15.10.2015. There is no other treatment record with respect to this treatment to show that petitioner need bridge fixation and root canal treatment. To my mind, petitioner has of his own has taken this treatment. He is not entitled for the treatment expenses of this treatment.
MAC No. 01/14 8/1316. Medical bills Ex.PW-1/3, Ex.PW-2/3, Ex.PW-3/3 and Ex.PW-4/2 show that he has incurred a sum of Rs. 3,88,721/- on his treatment. The petitioner is entitled for the said amount on account of medical expenses.
17. PW-1 stated that he was working as Accountant with Upper India Transport Co. Main Dadri-Noida, U.P and getting a salary of Rs. 15,000/ per month. There is no employment and income proof on record. There is nothing on record about his qualification. In these circumstances, petitioner is put in the category of unskilled worker. The accident has taken place in U.P. He was allegedly working in U.P so he is entitled for minimum wages given to an unskilled worker in State of U.P. The minimum wages for unskilled worker on the day of accident were Rs. 4975.86/- per month. This is taken as income of the petitioner per month.
18. The petitioner has sustained grievous injuries. He was operated upon. He has been admitted thrice to hospital. It is not possible to do the work when one is under treatment. The petitioner has remained out of work for at least five months. The petitioner is entitled for compensation for loss of earning/work during the treatment period for a sum of Rs. 24,879.3/- (Rs. 4975.86 x 5). Rounded off to Rs. 24,880/-
19. The petitioner has sustained grievous injuries so he was unable to do his daily chores. Some family members must have MAC No. 01/14 9/13 attended to him during this period. The petitioner is entitled for compensation for the attendant charges @ Rs. 3500/- per month for a period of 4 months.
20. The petitioner has visited the hospital number of times for treatment. He must have taken special diet in order to heal the wound. He is entitled for compensation towards special diet and conveyance which are assessed to Rs. 15,000/-.
21. Considering all the facts and circumstances of the case, I am of the opinion that petitioner is entitled for the compensation as under :-
1 Compensation towards pain Rs. 50,000/- and sufferings 2 Compensation towards medical bills Rs.3,88,721/- 3 Loss of earning for a period of Rs. 24,880/- 5 months 4 Attendant charges for 4 months Rs. 14,000/- 5 Special diet and conveyance Rs. 15,000/-
TOTAL Rs. 4,92,601/- LIABILITY
22. The vehicle is duly insured with respondent no. 3.
There is nothing on the record that there is any fundamental breach of the terms and conditions of the insurance policy. The MAC No. 01/14 10/13 vehicle is duly insured so respondent no. 3 is liable to pay the compensation to the petitioner.
RELIEF
23. In view of my aforesaid discussion, the petition of petitioner is allowed. The respondent no. 3 i.e. National Insurance Co. Ltd. is directed to pay a compensation of Rs. 4,92,601/- within one month from today with interest @ 12% p.a. from the date of filing of the petition till the date of realization. (Reliance is placed on Puttama and ors. Vs K.L. Narayan Reddy and ors., 2014 ACJ 526 and C.A. No. 4814/13 titled as Nirupam Mohan Mathur vs New India Assurance Co. Ltd. decided on 01.07.2013 by Hon'ble Apex Court for the grant of interest.) The respondent no. 3 is directed to deposit the said amount including interest with Manager, UCO Bank, KKD Courts within 30 days from the date of passing of award. The insurance company is directed to give notice regarding deposit of said amount to the petitioner and his counsel.
AWARD
24. The petition of the petitioners is allowed. The respondent no. 3 i.e. National Insurance Co. Ltd. is directed to pay a compensation of Rs. 4,92,601/- within one month from today with interest @ 12% p.a. from the date of filing of the DAR /petition till the date of realization. The respondent no. 3 is directed to deposit the said amount including interest with Manager, UCO Bank, KKD MAC No. 01/14 11/13 Courts within 30 days from the date of passing of award.
25. The awarded amount to petitioner shall be disbursed in the following manner :-
The Manager, UCO Bank or of any other bank shall prepare four fixed deposits of Rs. 1 lac each of the award amount in the name of petitioner for a period of one, two, three and four years. The balance amount shall be credited to his savings bank account after opening the bank account or transfer to the existing bank account, if any of the petitioner after taking relevant documents.
26. The withdrawal from the aforesaid account shall be after due verification by the bank and the bank shall issue photo identity cards to the petitioner to facilitates the identity.
27. The original fixed deposit receipt shall be retained by the bank in the safe custody. However, the original pass book shall be given to the petitioner along with photocopy of the FDR.
28. The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the FDRs.
29. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipt without the permission of the court. The bank MAC No. 01/14 12/13 shall not open joint account of the petitioner.
30. The bank shall prepare FDR in its own name on the receipt of the award amount from the insurance company till the date petitioners approach for the release of amount and thereafter amount along with interest shall be released to the petitioner as per order of the court.
31. On the request of the petitioner, the bank shall transfer the saving account to any other branch of UCO bank according to the convenience of the petitioner.
32. The petitioner shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to Nodal Officer, UCO Bank, KKD, Delhi.
33. Put up for compliance on 05.09.2016.
34. A copy of this judgment be given free of cost to the parties concerned.
Announced in open (Suresh Kumar Gupta)
court on 06.08.2016 PO-MACT/SHD/KKD
DELHI
MAC No. 01/14 13/13