Delhi District Court
Gadari Yadaiah vs Sanjay Sachdeva on 28 August, 2023
IN THE COURT OF SH. ASHUTOSH KUMAR : JUDGE (MACT)-01 (CENTRAL) TIS HAZARI COURTS, DELHI CNR No. DLCT01-001800-2023 MACT No. 95/2023 FIR No. 818/2022 PS: Karol Bagh U/s-279/338 IPC Gadari Yadaiah S/o Rama Laxmaiah, R/o 1-94, Munugode, Near New Bus Stop, Munugode, Nalgonda, Andhra Pradesh, 508244. Also R/o 104, C Sector-4, DIZ Area, Baba Kharag Singh Marg, Central Delhi, Delhi-110001. ......Petitioner Versus 1. Sanjay Sachdeva (Driver-cum-owner of offending vehicle) S/o Sh. S.M. Sachdeva R/o H.No. 16/860, Joshi Road, Karol Bagh, Delhi. Also at B-117, Golf Course Road, Suncity Gurgaon, Haryana. 2. Edelweiss General Insurance Company Ltd. (Insurer) Building No. 24, Plot No. 1111, Ashoka Estate, Barakhamba Road, New Delhi. ......Respondents Date of filing of DAR: 03.02.2023 Judgment Reserved on: 26.08.2023 Date of Award: 28.08.2023 MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 1 of 33 A W A R D: 1. In the present case, Detailed Accident Report (DAR) was filed by the investigation agency on 03.02.2023 in terms of the provisions of Motor Vehicle Act regarding a Road Traffic Accident, which took place on 05.11.2022, at about 4:00 p.m., at Round about Hanuman Murti near Vande Matram Marg, Karol Bagh, Delhi, wherein the present petitioner Gadari Yadaiah had sustained Grievous Injuries, with Creta vehicle bearing registration No. DL-8CAN-6983, driven & owned by respondent no. 1 Sanjay Sachdeva and insured with respondent no. 2-Edelweiss General Insurance Company Ltd. BRIEF FACTS 2. The Facts in brief as emerged from the Detailed Accident Report (DAR) are that on 05.11.2022, injured/petitioner Gadari Yadaiah along with his son named Vishnu, aged 10 years, were coming from Panchkuia Road and going towards Karol Bagh on scooty make Honda Activa bearing registration no. TS-05-FL-3635. At about 4.00 p.m., when they reached at Hanuman Murti near Gol Chakkar, one Car bearing registration no. DL-8CAN-6983 had hit the scooty of injured/petitioner, as a result of which, the said scooty got disbalanced, ran over the footpath and fell down, due to which, the petitioner sustained injury, whereas his son did not sustain any injury. The aforesaid car fled away from the spot. Injured/petitioner made a call to the police and the ambulance took him to Primus Super Speciality Hospital. GD No. 0070A dated 05.11.2022 was recorded at PS Karol Bagh regarding the accident, which was marked to ASI Rajesh, who reached at the MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 2 of 33 spot. HC Shambhu, who was on patrolling duty, also reached there. No injured was found present at the spot. At the spot, accidental scooty bearing no. TS-05FL-3635 make Honda Activa, was found stationed. On inquiry, it was revealed that injured had been taken to Primus Super Speciality Hospital, Chanakya Puri by the ambulance. ASI Rajesh left HC Shambhu at the spot and himself went to the aforesaid hospital, where the injured/petitioner Gadari Yadaiah S/o Laxmaiah, R/o H.No. 104- C, D.I.Z. area Baba Khadak Singh Marg, Gole Market, New Delhi, aged 43 years, was found under treatment. ASI Rajesh collected the MLC of injured and recorded his statement. On the basis of statement of injured/petitioner, inspection of the spot and MLC, offences u/s 279/337 IPC were found to be committed and as such FIR No. 818/2022, U/s 279/337 IPC was registered at PS Karol Bagh. During investigation, site plan of the place of occurrence was prepared. Accidental scooty bearing no. TS- 05FL-3635 was taken into police possession and was deposited in the malkhana. Statements of witnesses were recorded. CCTV footage qua the accident in question was collected and seized. On 09.11.2022, ASI Rajesh obtained the ownership document of Car bearing registration No. DL-8CAN-6983, which was found registered in the name of M/s Baba Agencies, H.No. 16/860, Joshi Road, Karol Bagh, Delhi. IO made inquiries qua the offending vehicle from the said agency and one Sanjay Sachdeva (respondent no.1 herein) claimed that he was the owner of the said vehicle. Notice u/s 133 M.V. Act was given to said Sanjay Sachdeva (respondent no. 1 herein), who gave in writing that he was driving the said vehicle on the day of accident. After that, Sanjay Sachdeva produced the offending vehicle i.e. Car No. DL- MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 3 of 33 8CAN-6983 along with its keys, relevant documents of the said car and his driving licence in the PS, which were taken into possession. The offending car was deposited in the malkhana. Sanjay Sachdeva (respondent no.1) was arrested and was released on bail. Mechanical inspection of both scooty No. TS- 05FL-3635 and Car No. DL-8CAN-6983 were got conducted. On verification, documents of both these vehicles were found genuine. Both these vehicles were later on released on superdari. The result on the MLC of the injured/petitioner was obtained, which was opined to be grievous in nature and as such Section 337 IPC was converted into Section 338 IPC. On completion of investigation, charge-sheet for the offences u/s 279/338 IPC was filed before the concerned Ld. Magisterial Court, whereas DAR was filed before this Tribunal on 03.02.2023. 2.1. On 13.03.2023, written statement was filed on behalf of respondents no. 1, whereas legal offer was filed on behalf of respondent no.2-insurance company. 2.2. Respondent no.1 has claimed in his written statement that on the day of accident, the offending vehicle was in stationary condition and the accident in question took place due to negligence of the injured/petitioner. It is further claimed by him that he was not driving the offending vehicle in a rash and negligent manner and was following the traffic rules. Respondent no. 1 has admitted that the offending vehicle was insured with respondent no. 2 vide policy bearing no. 900346787, valid for the period from 13.07.2022 to 12.07.2023. MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 4 of 33 2.3. The respondent no.2-insurance company has offered a sum of Rs. 40,000/- as compensation to the injured/petitioner, while admitting that the offending vehicle bearing no. DL- 8CAN-6983 was insured in the name of respondent no. 1 Sanjay Sachdeva vide Private Car Package Policy No. 900346787, valid for the period from 13.07.2022 to 12.07.2023. ISSUES FRAMED 3. On the basis of the pleadings of the parties, vide order dated 23.05.2023, this Tribunal had framed the following issues: Issue No.1: Whether the petitioner/injured suffered grievous injuries in an accident that took place on 05.11.2022 at about 4:00 pm, at Round about Hanuman Murti near Vande Matram Marg, Karol Bagh, involving vehicle bearing registration No. DL- 8CAN-6983 driven rashly and negligently by respondent no.1, which was also owned by him and was duly insured with respondent no. 2? (OPP) Issue No. 2:Whether the petitioner/injured is entitled for compensation? If so, to what amount and from whom?(OPP). Issue No.3: Relief. EVIDENCE 4. In order to prove his claim, the petitioner/injured had examined himself as CW-1 and Dr. Aditya Jain as CW-2. Thereafter the petitioner's evidence was closed. Ld. Counsel for respondents had stated that they do not wish to lead any evidence on behalf of the respondents and as such respondents' evidence MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 5 of 33 was also closed. 4.1. None of the parties had filed any duly filled in Form XIV. 4.2. Financial statement of the petitioner was recorded on 26.08.2023. FINDINGS & OBSERVATIONS 5. I have heard Ld. Counsels for the petitioner & Ld. Counsels for respondents no. 1 and 2 and perused the record. 5.1. My findings on the various issues are as under:- Issue No.1: Whether the petitioner/injured suffered grievous injuries in an accident that took place on 05.11.2022 at about 4:00 pm, at Round about Hanuman Murti near Vande Matram Marg, Karol Bagh, involving vehicle bearing registration No. DL- 8CAN-6983 driven rashly and negligently by respondent no.1, which was also owned by him and was duly insured with respondent no. 2? (OPP) 5.2. The onus to prove the issue no. 1 was upon the petitioner. The injured/petitioner has examined himself as CW-1. The relevant parts of the affidavit of evidence Ex. CW1/A of the petitioner of para nos 2,3,4,5,8,9, 10,11,12,13,14,15 and 16 are as under:- "2.That I am working as Pharmacist in the CGHS Dispensary at North Block, Directorate of Ministry of Health and Family Welfare. MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 6 of 33 3. That I am a handicapped since my childhood at the age of 8 years, when I suffered due to Polio. 4. That......................... on 05.11.2022 i.e. date of incident, when I alongwith my son Vishnu (now 11 years of age) were going towards Karol Bagh from Panchkuian Road side on scooty No. TS-05-FL-3635, Honda Activa and near round about at Hanuman Murti, Karol Bagh at about 4.00 PM, one car bearing no. DL-8C-AN6983 hit my scooty and due to the impact of hitting, we lost balance from scooty and due to which, I alongwith my son fell on the footpath and I sustained injuries and was not capable of driving due to the severe pain and in between, the Driver of the car ran away from the spot of occurrence without providing any assistance of first aid despite his negligence and rash driving. FIR bearing no. 818/2022 was registered with PS Karol Bagh. 5. That after accident, police/PCR came on the spot and the police officials took me to the superspecialtiy hospital namely Primus at Chanakyapuri, Delhi, where I underwent treatment for injuries caused due to accident. 8. That my medical investigation was conducted and a fracture in my left side femur i.e. thigh bone was diagnosed and I was advised for complete bed rest for 40 days, as such, I availed medical leave w.e.f. 07.11.2022 to 16.12.2022 for 40 days........ MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 7 of 33 9. That due to the accident, in continuation of my treatment, I am regularly getting the services of a male attendant @ Rs. 12,000/- per month since December 2022 to till date and besides this, I also taking physiotherapy sessions continuously since the day I was advised by the Doctor to till date and the physiotherapy sessions are still advised to continue and till date I have incurred expenses for the male attendant and physiotherapy sessions.................. 10. That my vehicle was got damaged due to the said accident caused by the Respondent no.1 and as such, I incurred the expenses of Rs. 2,862/- for repair of the same..... 11. That I have again visited the hospital Primus on 31.07.2023 for assessment of my injury and future course of life and Dr. Aditya Jain, Orthopedic Surgeon, who attended me during my treatment as well, have categorically opined that due to the impact of the accident, this may hamper my daily activities, mobility and muscular strength,meaning thereby I may further require assistance of someone to lookafter me and for which, it may incur lot of expenses for my survival. The certificate dated 31.07.2023 given by the Dr. Aditya Jain in this regard is being filed separately......................... .............................................................
......................................... ................... ...........................................................
12.........................................................
MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 8 of 33 ............................................................. ....................but after the accident caused by the Respondent no. 1, I am not able to crawl and needs regular assistance of the male attendant as appointed by me and besides this, whenever the attendant is not available, it is my son, wife or some friend, who assist me to go the office and return therefrom and therefore, require permanent engagement of a male attendant for atleast 16 years i.e. till my superannuation with my employer at an average amount of Rs.
20,000/-per month........................................
I require permanent engagement of a person for my survival. The expected amount of services of male attendant required by me till my retirement would be Rs.
38,40,000/-.......................................... ............................................................. ...................
13. I say that due to the cause of the accident, I am not able to drive my modified three-wheeler scooty and I have to hire Auto/Taxi and I am spending Rs. 3,000/- per month in addition to the diet etc. and hiring of the taxi etc. is required permanent in future too, as my physical condition has not improved and I am not in a position to travel of my own and for which the expenses of Rs. 5,76,000/-
for travelling are required during my service period.
14. That virtually as per the medical diagnosis and opinion given by the expert from the Primus Hospital, my health condition would be MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 9 of 33 deteriorating with the passage of time due to the degeneration and weakness in the bones and I may be required for engagement of special care of my physical condition by engagement of an expert nursing person to lookafter me.
15. That I am suffering not only the mental and physical agony due to the accident, but is under consistent fear of getting permanent disability due to my already existing disability due to polio since my childhood. Due to the hampering of the body conditions, as opined by the Doctor, I am also entitled for compensation of Rs.
5,00,000/- towards the said agonies.
............................................................ ............................................................. ............................................................
16. I say that my statement is true and correct and I am entitled for a compensation of sum of Rs.
50,00,000/- from the Respondent either jointly or severally."
5.3. CW1 has tendered following documents in his evidence:-
1. Original DAR Ex.CW1/1 (colly).
2. Copy of leave certificate Ex.CW1/2 (objected to on the ground of mode of proof).
3. Copies of invoices issued by JOMS Care Hospital Ex.CW1/3 (colly). (OSR) (objected to on the ground of mode of proof)
4. Receipt of workshop (qua repairing charges of the vehicle of the petitioner after the accident) Ex.CW1/4.
5. Certificate dated 31.07.2023 given by Dr. Aditya Jain Ex. CW1/5.
MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 10 of 33 5.4. In the cross-examination conducted on behalf of respondent no. 2, CW1 has stated that presently he is working as Pharmacist with CGHS dispensary at North Block, New Delhi.
He further stated that as on 31.01.2023, his total emoluments/salary was Rs. 90212/- and after deductions, the net salary was Rs. 74,720/-. He further stated that at the time when accident occurred, he was getting lesser salary than as of now. CW1 further stated that the offending vehicle had hit his motorized modified vehicle used by physical challenged, from behind and that he was having license for the said vehicle being driven by him. He has admitted that he was having disability prior to the accident, as a result of Polio disease, from the age of about 8 years onwards. CW1 has denied the suggestion that his entire treatment took place in a Govt. hospital and has voluntarily stated that he was treated as Primus hospital, which is a private hospital. He has admitted that he is having CGHS facility for medical treatment and that his entire medical treatment was cashless. He further stated that there is no document on record vide which he was advised any kind of medical rest. CW1 has further stated in the cross-examination that as per his leave record Ex. CW-1/6 (pursuant to the injuries in question in the accident) issued by his department i.e. Office of the Additional Director, CGHS, Central Zone, New Delhi-110055, he was granted commuted leaves of 40 days w.e.f. 07.11.2022 to 16.12.2022 and again was granted commuted leaves for 19 days w.e.f. 02.01.2023 to 20.01.2023. He has denied the suggestion that he has filed forged and fabricated bills issued by Joms Care Hospital, which is already Ex. CW-1/3 (colly), as the same neither bears the GSTIN Service Tax number nor the mode of MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 11 of 33 payment. He further stated that he has not filed any prescription on record whereby the doctor had advised him any kind of physiotherapy or nursing attendant. He has admitted that he was specially-abled prior to the accident and either used to move on wheel chair or used to crawl. He has denied the suggestion that doctor has not advised him any attendant for 16 years or that he will not have to pay attendant charges of Rs. 20,000/- or that he will not incur expenditure of Rs. 38,40,000/- in this regard in the next 16 years. CW1 further stated that he has not placed on record any bill qua hiring of any taxi or auto rickshaw for communing to his office. He has denied the suggestion that he will incur expenditure of Rs. 5,76,000/- in this regard in future. He has further stated that he has not placed any doctor's advise to show that he will suffer from Bone Degeneration. He has denied the suggestion that he is not entitled to a sum of Rs. 5 lakhs towards pain or sufferings or Rs. 50 lakhs towards compensation. He has further denied the suggestion that he himself had hit the offending vehicle or that the said accident took place due to his sole rashness and negligence.
5.5. In the cross-examination conducted on behalf of respondent no. 1, CW1 has stated that he has done B.Pharma. He has denied the suggestion that the offending vehicle was stationary at the time of accident or that he had hit the front left side of the same with the scooty being driven by him in a rash and negligent manner and has voluntarily stated that the offending vehicle had hit the scooty being driven by him, from behind. CW1 has admitted that the fact that the offending vehicle had hit the scooty being driven by him from behind, is not MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 12 of 33 mentioned in the FIR or in his affidavit of evidence. He further stated that the head light of his scooty was not scratched/damaged in the accident. He has stated that the fact mentioned in the mechanical inspection report of the scooty that the head light of scooty was scratched/damaged, is incorrect. He has denied the suggestion that the offending vehicle was not being driven rashly and negligently or that there is no liability of respondent no. 1. As regard the rest of cross examination, Ld. counsel for respondent no. 1 has adopted the cross examination conducted on behalf of respondent no. 2.
5.6. CW-2 Dr. Aditya Jain, Consultant Orthopedic, Primus Super Specialty Hospital, Chanakyapuri, Delhi, has deposed that Ex. CW1/5 is pertaining to the medical treatment of petitioner and is bearing his seal and signature at point A. In the cross-examination conducted on behalf of respondent no. 2 - insurance company, CW-2 has stated that he had not prepared the MLC of the petitioner and has voluntarily stated that he had done the surgery of the petitioner and had treated him for follow-up treatment. He further stated that petitioner was suffering from "fracture shaft of femur". CW2 has admitted that the said injury can take place due to any kind of fall or accident. He further stated that the petitioner was admitted in their hospital on 05.11.2022, was operated upon by him on 07.11.2022 and was discharged on 09.11.2022. He further stated that thereafter, the petitioner used to visit hospital and consulted him for follow-up treatment. The said cross-examination of CW2 was adopted by respondent no.1 (driver-cum-owner of offending vehicle).
MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 13 of 33 5.7. It is well settled that the proceedings before the Claims Tribunal are in the nature of inquiry. In Bimla Devi & Ors. Vs Himachal Road Transport Corporation & Ors [(2009) 13 SC 530], [in Kaushnumma Begum and others V/s New India Assurance Company Limited, [2001 ACJ 421 SC], [in National Insurance Co. Ltd. vs. Smt. Pushpa Rana & Ors.] cited as [2009 ACJ 287], it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
5.8. The factum of accident and the identity of respondent no. 1 as driver of the offending vehicle stands proved from the testimony of CW1 Gadari Yadaiah. Also in reply to notice U/s 133 Motor Vehicle Act, respondent no.1 had admitted that he was the partner of M/s Baba Agencies,which was the owner of Creta vehicle bearing registration no. DL-8CAN-6983 and on 05.11.2022, at about 4.00 p.m., he was driving the same and when he reached at Hanuman Murti Gol Chakkar, an accident took place with a scooty. Furthermore, as per the charge- sheet, respondent no. 1 produced the said vehicle along with its keys and relevant documents before the police, which were taken into possession, he was arrested and was released on bail. Thus, the factum of accident and the identity of respondent no. 1 Sanjay Sachdeva as driver of the offending vehicle bearing registration no. DL-8CAN-6983, stands established.
MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 14 of 33 5.9. As regards rash and negligent driving, though CW1 has admitted that the fact that the offending vehicle had hit the scooty being driven by him from behind, the same is not mentioned in the FIR or in his affidavit of evidence. However, he has categorically stated that the offending vehicle had hit the scooty being driven by him, from behind. Merely bald suggestion was given to said CW1 that the offending vehicle was stationary at the time of accident or that CW1 had hit the front left side of the said vehicle with the scooty being driven by him in a rash and negligent manner. Rather CW1 has denied the suggestion that the offending vehicle was not being driven rashly and negligently. Furthermore, except for baldly claiming that the offending vehicle was in stationary condition at the time of accident, respondent no.1 did not bring any convincing material on record to substantiate his said claim nor he himself appeared in witness box to counter the claim of the petitioner/injured. Hence adverse inference is drawn against the respondent no.1 (driver of the offending vehicle). In this regard, reliance is placed on the judgments of Hon'ble High Court of Delhi in the cases of Teja Singh Vs Suman & Ors., MAC. APP. 1111/2018 & CM APPL. 52384/2018, 52386/2018, date of decision 06/12/2019, MAC. APP. 428/2018, titled as The Oriental Insurance Co. Ltd. Vs Kamla Devi & Ors, date of decision 08.11.2019 and MAC. APP. 690/2017 & CM APPL. 28108/2017, titled as Reliance General Insurance Company Ltd. Vs Mona & Ors., date of decision 15.10.2019, which had relied upon the judgment in the case of Cholamandalam Insurance Co. Ltd. Vs Kamlesh 2009(3) AD Delhi 310. From the testimony of CW1, it stands proved that respondent no.1 was rash and negligent in MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 15 of 33 driving the offending vehicle. Furthermore, the mechanical inspection report of the offending vehicle bearing no. DL- 8CAN-6983 dated 09.11.2022 reveals that its front bumper was scratched. The mechanical inspection report of the scooty No. TS-05-FL-3635 reveals that extra two side rear side tyres/mud guards were dented/pressed and front head light assly was scratched, though CW1/injured/petitioner denied in the cross- examination conducted by respondent no. 1 that the head light of his scooty was scratched/damaged in the accident. From the same and from the site plan, which is also the part of charge- sheet, on the principle of res ispa loquitur, negligence on the part of respondent no. 1 in causing the said accident, is indicated. In this regard, reliance is also placed on the judgment in the case of State of Orissa Vs Nalini Kumar Patnaik, 1989 ACJ 126 Orissa. Furthermore, in view of filing of DAR containing the charge-sheet for the offences u/s 279/338 IPC & other relevant documents against the respondent no. 1 and in terms of the judgment in the case of "National Insurance Co. Vs. Pushpa Rana & Ors.", 2009 ACJ 287, Delhi, respondent no. 1 (driver of the offending vehicle) is held to be negligent on the basis of preponderance of probability. From the DAR, it is also proved that respondent no.1 was also the registered owner of the offending vehicle, which was insured with respondent no. 2- Edelweiss General Insurance Company Ltd.
5.10. The MLC of the petitioner/injured, which is part of DAR Ex. CW1/1 (colly) bearing no. 602/22, reveals that he was brought to ER with history of "RTA" while riding hit by the car near Karol Bagh Hanuman mandir at 4.00 p.m. It further reveals MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 16 of 33 that there was pain and tenderness over the left thigh with range of restricted movement. It further reveals that the nature of injury sustained by the injured/petitioner was opined to be grievous in nature. As per certificate issued by the doctor of aforesaid hospital, the petitioner was diagnosed with fracture of left shaft femur and was managed accordingly. Furthermore from the testimony of CW-2, it stands established that petitioner was suffering from "fracture shaft of femur", which as per version of CW2 can take place due to any kind of fall or accident. Thus, it stands established that the petitioner/injured had sustained grievous injuries in the accident in question due to the accident caused by respondent no.1 in driving the offending vehicle in a rash and negligent manner.
5.11. Accordingly, the issue no. 1 is decided in favour of the petitioner and against the respondents.
6. Issue No. 2:Whether the petitioner/injured is entitled for compensation? If so, to what amount and from whom? (OPP).
6.1. The onus of proving the above issue was upon the petitioner/injured Gadari Yadaiah.
6.2. The petitioner is claiming a total compensation of Rs. 50,00,000/-. In so far as respondent no. 2/insurance company is concerned, it had filed a legal offer to the tune of Rs. 40,000/- since the petitioner had not supplied the salary certificate, leave certificate, medical bills and proof of medical reimbursement, certificate of treating doctor for advising rest etc. MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 17 of 33 6.3. As regards the medical expenses, the petitioner has claimed that on 31.07.2023, he again visited Primus Hospital for assessment of his injury and future course of life. In this regard, the petitioner has examined CW-2 Dr. Aditya Jain of Primus Super Specialtiy Hospital and relied upon the Ex. CW1/5 (colly). As per said CW, the petitioner was admitted in their hospital on 05.11.022, was operated upon by him on 07.11.2022 and was discharged on 09.11.2022 and thereafter the petitioner used to visit the hospital and consulted him for follow-up treatment. As per Ex. CW1/5 (colly), the petitioner has been united with shortening of left leg which may hamper his daily activities, mobility and muscular strength. The petitioner has also filed on record following bills:-
S.No. Bill/Invoice no. Issued by Amount
1. Photocopy Primus Super Rs. 350/-
OPCR527041 dated Speciality towards 31.07.2023 Hospital consultation charges.
2. Photocopy of Not mentioned Rs. 288/-
OPCR479726 dated towards x-ray
07.02.2023 extremities,
bones & joints
AP and lateral
view
3. Photocopy of Rs. 300/-
OPCR469713 towards
22.12.2022 radiology
services
extremities,
bones and
joints.
4. Photocopy Rs. 150/-
OPCR469712 towards
22.12.2022 consultation
charges
MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 18 of 33
5. Photocopy Rs.150/-
OPCR463240 towards
24.11.2022 consultation
charges
6. Original bill no. Primus super Rs.70/-
OPCS719623 dated speciality towards
24.11.2022 hospital consumable
charges i.e.
gloves steril
romson
7. Photocopy Rs. 288/-
OPCR520795 dated
31.07.2023
8. Original Primus super Rs. 150/-
OPCR4794723 speciality
dated 07.02.2023 hospital
6.4. The perusal of aforesaid bills also reveals that out of the said bills, only two are originals and rest are photocopies. The said bills were not part of DAR. Moreover, the said bills were to be paid by the Ministry of Health & Family Welfare (i.e. the employer of the petitioner). Furthermore, in the cross-
examination, he has admitted that he is having CGHS facility for medical treatment and that his entire medical treatment was cashless. As such, this Tribunal is of the considered view that the petitioner is not entitled for any compensation towards medical expenses.
6.5. In so far as the expenses towards Special Diet are concerned, admittedly, the petitioner has not shown any document that he was prescribed special diet and the petitioner has also not brought any such bills qua special diet but still since the petitioner was bed ridden due to the nature of injuries, MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 19 of 33 therefore, he must have required some special diet and would have incurred expenses on the same. Also respondent no.2/insurance company had offered Rs. 5,000/- as notional amount towards the special diet of the petitioner, hence, I am of the considered opinion that the petitioner is entitled to a notional sum of Rs.10,000/- under the head of Special Diet.
6.6. As regards to the conveyance charges, the petitioner has not filed on record any bills towards conveyance charges. However keeping in view the fact that the petitioner is a handicapped, also considering the nature of injury suffered by the petitioner i.e. fracture shaft of femur and the fact that the petitioner had visited the Primus hospital on many occasion for his follow-up treatment and would have incurred expenditure for said purpose and further in view of the fact that respondent no.2/insurance company had offered notional amount of Rs. 5,000/- under this head, the petitioner is awarded notional sum of Rs. 10,000/- towards conveyance charges.
6.7. In so far as the Nursing/ Attendant Charges are concerned, the petitioner is claiming that he is regularly getting the services of a male attendant @ Rs. 12,000/- per month since December 2022 to till date and also taking physiotherapy sessions. The petitioner is relying on Ex. CW1/3 (Colly) i.e the invoices issued by JOMS Care Hospital. The said bills were objected to by Ld. Counsel for respondent no.2-insurance company on the mode of proof. The details of which are as under:-
MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 20 of 33 S. Invoice for the Attendant Physiotherapy Total Amount N month o.
1. 01.01.2023 12,000/- 26 sessions:- Rs. 22,400/-
400 x 26=Rs.
10,400/-
2. 01.02.2023 12,000/- 24 sessions:- Rs. 21,600/-
400 x 24= Rs. 9,600/-
3. 01.03.2023 12,000/- 27 sessions:- Rs. 22,800/-
400 x 27= Rs.
10,800/-
4. 01.04.2023 12,000/- 25 sessions:- Rs. 22,000/-
400 x 25=Rs.
10,000/-
6.8. The aforesaid bills were not part of DAR and were filed subsequently. As regards the said bills, the petitioner has not examined any witness from the said JOMS Care Hospital. Furthermore, in the cross-examination conducted on behalf of respondent no.2-insurance company, the petitioner has admitted that he has not filed any prescription on record whereby the doctor had advised him any kind of physiotherapy or nursing attendant. Although the petitioner has not proved any bills or nursing bills, however keeping in view the fact that the petitioner is a handicapped, also in view of the nature of injury suffered by the petitioner and the fact that respondent no.2/insurance company had offered notional amount of Rs. 5,000/- under this head, the petitioner is awarded notional sum of Rs. 10,000/- towards Nursing/ Attendant Charges.
6.9. The petitioner is further claiming a sum of Rs. 5,00,000/- towards the mental and physical agony caused to him due to the accident in question. Certainly the petitioner must have MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 21 of 33 suffered some mental agony and pain due to the grievous sustained by him and considering the fact that the respondent no. 2/insurance company had also offered a sum of Rs. 20,000/- under the said heads, therefore, a notional sum of Rs. 10,000/- is awarded to the petitioner under each head of loss due to "Mental & Physical Shock" & "Pain & Suffering".
6.10. Now coming to the aspect of loss of income, the case of the petitioner is that at the time of accident, he was working as Pharmacist in the CGHS Dispensary at North Block, Directorate of Ministry of Health and Family Welfare. It is further the claim of the petitioner that due to injuries sustained by him in the accident in question, he had to take earned leaves of total 40 days i.e. from 07.11.2022 to 16.12.2022. In this regard, he has placed reliance on application for leave or for extension of leave Ex.CW1/2 (which was objected to by Ld. Counsel for respondent no.2-insurance company on the mode of proof), as per which, the petitioner had taken medical leaves w.e.f. 07.11.2022 to 16.12.2022 (40 days) and office order Ex. CW1/6, which was issued by his department. As per the said office order, the petitioner had taken 40 days commuted leaves from 07.11.2022 to 16.12.2022 and further 19 days commuted leaves from 02.01.2023 to 20.01.2023. However the petitioner has merely claimed in his affidavit of evidence that he was advised medical leave for 40 days. However since the 19 days medical leave period is not mentioned in his affidavit of evidence, therefore, compensation qua the said 19 days commuted leave cannot be given. There is no doubt that had the petitioner not been injured, MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 22 of 33 there was no requirement for him to take commuted leave on that account. Earned leaves/commuted leaves are provided to a government employee to use the same in case of any exigency, trouble or other urgent requirements and up to 300 earned leaves can be encashed by a government employee at the time of his retirement. The Hon'ble High Court of Delhi in the case of "Oriental Insurance Co. Ltd. Vs Balram Yadav & Ors", MAC. APP. 62/2008, date of decision: 31.05.2016, has held in para no. 7 that:-
".....a government employee enjoys the privilege of leave to be availed as per his convenience and for his own needs or pleasure. Spending leave on medical treatment for injuries in a motor vehicular accident cannot conceivably be called a choice he exercised voluntarily. The loss of leave account, it being of value, thus had to be suitably compensated."
6.11. Keeping in view the aforesaid judgment of Hon'ble High Court, I am of the considered opinion that the petitioner needs to be compensated for the 40 days commuted leaves taken by him during the period of his treatment.
6.12. The petitioner, in his cross-examination conducted on behalf of Ld. Counsel for respondent no.2-insurance company, has claimed that as on 31.01.2023, his total emolument/salary was Rs. 90,212/- and after deductions, the net salary was Rs. 74,720/- and at the time of accident, he was getting lesser salary than as of now. The petitioner has filed the salary slip of January, 2023 on record in this regard. In his financial statement, he claimed that at the time of accident in November 2022, his gross MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 23 of 33 salary was Rs. 74,720/-, though no salary slip of said month has been filed on record. In the cross-examination conducted on behalf of respondent no. 2, the petitioner as CW1 has admitted that there is no document on record vide which he was advised any kind of medical rest and has voluntarily stated that the same may be lying at his home. The salary slip of the petitioner for the month of January 2023 filed on record reveals that his total emoluments were Rs. 90,212/-, which is taken for assessment of his one day salary. Thus the one day salary of petitioner comes to Rs. 3,007/-. The petitioner is claiming loss of income of 40 days commuted leaves, which comes to 3,007 x 40=Rs. 1,20,280/-. Thus, the petitioner is awarded a sum of Rs. 1,20,280/- under the head of loss of income.
6.13. Accordingly, keeping in view the facts and circumstances, the material on record, and the settled principles and guidelines governing the injury cases like the present one, the compensation is being derived in the present case as under:-
NAME OF HEAD AMOUNT (in Rupees)
Expenditure on Treatment Nil.
Expenditure on Special Diet Rs. 10,000/- (notional)
Expenditure on Conveyance Rs. 10,000/- (notional)
Expenditure on nursing attendant Rs. 10,000/- (notional)
Loss of Income ( 40 days) 3,007 x 40=Rs.
1,20,280/-.
Special treatment or aid to the Nil.
injured for the rest of his life.
Mental & Physical Shock, Pain & Rs. 10,000+10,000= Suffering Rs. 20,000/-
Total Rs. 1,70,280/- MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 24 of 33
6.14. I may note that interest @ 9% per annum was awarded by the Hon'ble Apex Court in the case of Municipal Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy reported in 2012 ACJ 48 (SC). In the interest of justice, it is held that claimant shall be entitled to interest @ 9% per annum from the date of filing of DAR i.e. from 03.02.2023 till realization.
DISBURSEMENT
7. The Financial Statement of the petitioner Vipin Kumar was recorded by this Court/ Tribunal 26.08.2023 according to which his monthly family expenses are approximately Rs.50,000/- per month.
7.1. After considering the financial statements of the petitioners, I hereby direct that on realization of the award amount, a sum of Rs. 50,280/- (Rupees Fifty Thousand Two Hundred & Eighty only) along with entire interest amount be released to the claimant/petitioner from his share and the balance amount of Rs. 1,20,000/- (Rupees One Lakh & Twenty Thousand Only) shall be put in 12 (Twelve) monthly fixed deposits in his name in MACAD account of equal amount of Rs. 10,000/- (Rupees Ten Thousand only) each for a period of 01 month to 12 months respectively, with cumulative interest, in terms of the directions contained in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank situated near his residence without the facility of cheque book and ATM MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 25 of 33 card. It is clarified that the amount shall be released to him only on submitting the copy of passbook of such saving account in a bank near to his residence with endorsement of the bank that no cheque book facility and ATM card has been issued or if it has been issued the said ATM Card has been withdrawn and shall not be issued without the prior permission of this Tribunal.
7.2. In compliance of the directions given by Hon'ble High Court in FAO No. 842/2003 dated 08.01.2021, Summary of the Award in the prescribed Format-XVI is as under:
SUMMARY OF AWARD:
1. Date of Accident: 05.11.2022
2. Name of the Injured: Gadari Yadaiah
3. Age of the Injured: 44 Years
4. Occupation of the Injured: Pharmacist with CGHS, Ministry of Health, Govt. of India.
5. Income of the Injured: Rs. 90,212/-
6. Nature of Injury: Grievous
7. Medical Treatment taken Primus Super Speciality Hospital, Delhi.
8. Period of Hospitalization: 07.11.2022 to 09.11.2022
9. Whether any permanent Nil disability? If yes, give details:
MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 26 of 33
10. COMPUTATION OF COMPENSATION Sr. Heads Awarded by the Claims No. Tribunal
11. Pecuniary Loss:
(i) Expenditure on Treatment Nil.
ii) Expenditure on Conveyance 10,000/-
(Notional)
(iii) Expenditure on Special Diet 10,000/-
(Notional)
(iv) Cost of Nursing/ attendant 10,000/-
(notional)
(v) Loss of earning Nil
(vi) Loss of Income (40 days) 3,007 x 40=Rs.
1,20,280/-.
vii) Any other loss which may Nil.
require any special treatment or
aid to the injured for the rest of
his life
12. Non Pecuniary Loss
(i) Compensation for mental and Rs. 20,000/-
physical shock
(ii) Pain and Sufferings
(iii) Loss of amenities of life Nil
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil
hardships, disappointment,
frustration, mental stress,
dejectment and unhappiness in
future life etc.
13. Disability resulting in loss of earning capacity:
MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 27 of 33
(i) Percentage of disability Nil assessed and nature of disability as permanent or temporary
(ii) Loss of amenities or loss of Nil expectation of life span on account of disability
(iii) Percentage of loss of earning Nil capacity in relation to disability
(iv) Loss of future income - Nil (income x % earning capacity x Multiplier)
14. Total Rs. 1,70,280/-
15. INTEREST AWARDED 9%
16. Interest amount upto the date of Rs. 8,713/-
award (06 months & 25 days)
17. Total amount including Interest Rs. 1,78,993/-
18. Award amount released As mentioned in para no. 7.1.
19. Award amount kept in FDRs As mentioned in para no. 7.1.
20. Mode of disbursement of the As mentioned in para award amount of the no. 7.1.
claimant(s)
21. Next date for compliance of the 06.10.2023 award LIABILITY
8. In so far as the liability to pay the award amount is concerned, it is evident from the record that the offending vehicle i.e. car bearing No. DL-8CAN-6983 was being owned & driven by Sanjay Sachdeva (Respondent No.1) and was duly insured MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 28 of 33 with respondent no. 2-Edelweiss General Insurance Co. Ltd. Therefore, both the said respondents shall be jointly and severally liable to pay compensation to the claimant. However, since the vehicle was duly insured with respondent no. 2- Edelweiss General Insurance Co. Ltd. on the day of accident, it is respondent no.2, who is ultimately held liable to indemnify the insurance and to pay the compensation amount to the petitioner under the statutory liability.
8.1. Issue No.2 is accordingly decided in favour of the petitioner and against the respondents.
RELIEF
9. Since the offending vehicle was insured with the respondent no. 2-Edelweiss General Insurance Co. Ltd. therefore, the respondent no.2 is directed to deposit a sum of Rs. 1,70,280/- (Rupees One Lakh Seventy Thousand Two Hundred & Eighty only) along with interest @ 9% from the date of filing of DAR i.e. 03.02.2023 till realization with the Civil Nazir of this Tribunal within 30 days under intimation to the claimant failing which insurance company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
10. A copy of this judgment be sent to the respondent no. 2-Edelweiss General Insurance Co. Ltd. for compliance within the time granted. Respondent no. 2-Edelweiss General Insurance Co. Ltd. is further directed to give intimation of deposit of the compensation amount to the claimant and shall file MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 29 of 33 a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount within 15 days of the deposit with a copy to the Claimant and his counsel.
11. Civil Nazir is directed to place a report on record on 06.10.2023 in the event of non-receipt/deposit of the compensation amount within the time granted.
12. Copy of the award be also sent to the court of concerned Metropolitan Magistrate and Delhi State Legal Services Authority (DSLSA).
13. File be consigned to Record Room.
Announced in the open Court Dated: 28.08.2023 (Ashutosh Kumar) Presiding Officer, MACT-01 (Central) THC/Delhi MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 30 of 33 FORM - XVII COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE MENTIONED IN THE AWARD 1 Date of Accident 05.11.2022 2 Date of filing of Form-I -
First Accident Report 07.11.2022
(FAR)
3 Date of delivery of Form-II
to the victim(s) Not attached with DAR.
4 Date of receipt of Form-III
from the Driver Not mentioned
5 Date of receipt of Form-IV
from the Owner Not mentioned.
6 Date of filing of the Form-
V-Interim Accident Report 24.12.2022
(IAR)
7 Date of receipt of Form-
VIA and Form VIB from Not attached with DAR
the Victim(s)
8 Date of filing of Form-VIII
- Detail Accident Report 03.02.2023
(DAR)
9 Whether there was any
delay or deficiency on the
part of the Investigating No
Officer? If so, whether any
action/direction warranted?
10 Date of appointment of the
Designated Officer by the Not mentioned.
Insurance Company
11 Whether the Designated
Officer of the Insurance Yes
Company admitted his
report within 30 days of the
DAR?
MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 31 of 33
12 Whether there was any
delay or deficiency on the No
part of the Designated
Officer of the Insurance
Company? If so, whether
any action/direction
warranted?
13 Date of response of the
claimant(s) to the offer of No response.
the Insurance Company.
14 Date of award 28.08.2023
15 Whether the claimant(s)
were directed to open Yes
savings bank account(s)
near their place of
residence?
16 Date of order by which
claimant(s) were directed to 03.02.2023
open Savings Bank
Account(s) near his place of
residence and produce PAN
card and Aadhaar Card and
the direction to the bank not
to issue any cheque
book/debit card to the
claimant(s) and make an
endorsement to this effect
on the passbook(s).
17 Date on which the
claimant(s) produced the
passbook of their savings PAN Card & Aadhar card bank account(s) near the were provided on 26.08.2023. place of their residence and undertaken to produce alongwith the endorsement, bank passbook, with PAN card and Aadhaar endorsement within one week. Card?
18 Permanent residential As per Award address of the claimant(s).
19 Whether the claimant(s) The claimant has undertaken
MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 32 of 33
savings bank account(s) is
to produce the same within
near their place of
one week.
residence?
20 Whether the Claimant(s)
were examined at the time Yes. The Financial Statement of passing of the Award to of the claimant was recorded ascertain his/their financial on 26.08.2023 condition?
(ASHUTOSH KUMAR) PO, MACT-01 (Central), Tis Hazari Courts, Delhi/ 28.08.2023 MACT No. 95/2023 Gadari Yadaiah Vs Sanjay Sachdeva & Anr. Page No. 33 of 33