Delhi District Court
Sh. Manoj Sharma Aged About 25 Years vs Smt. Asha Sharma on 6 September, 2010
IN THE COURT OF SH. ARVIND KUMAR : PRESIDING OFFICER: MACT
KARKARDOOMA COURTS : DELHI
MACT No: 76/10
Unique Case ID No. : 02402C0029502007
Date of institution : 15.01.2007
Reserved for orders : 25.08.2010
Judgment pronounced on : 06.09.2010
Sh. Manoj Sharma aged about 25 years
S/o Sh. Braham Prakash Sharma
R/o H. No. 91, Pandit Chowk, Mandawali
Fazal Pur, Delhi ....Petitioner
VERSUS
1. Smt. Asha Sharma
W/o Brijesh Kumar
R/o H.No. 119, A-Block, Gharoli Dairy Farm,
Mayur Vihar Phase-III, Delhi-96 ....Regd.Owner
2. United India Insurance Company Ltd.
R/o P-19-20, Panday Nagar, Mayur Vihar, Phase-I,
Delhi ....Insurer
3. Rajeev Kumar S/o Sh. Brijash Kumar
R/o H. No. 119, A-Block, Gharoli Dairy Farm,
Mayur Vihar Phase-III, Delhi-96 ...Driver
......Respondents
JUDGMENT
1. The case of the petitioner is that on 25.12.2006 at about 7.30 p.m, injured/petitioner was going on scooter bearing registration no. DL-7SAD-1479 from his residence to Baldev Park along with his cousin brother named Sh. Arun Kumar S/o Sh. Lal Chand Sharma. The injured/petitioner was driving the above said scooter with due care and at a normal speed and his cousin brother was the pillion rider on the scooter. When the petitioner reached in front of D.A.V. Public School, Mausam Vihar, a motor cycle bearing registration no. DL-5SU-7213 driven by respondent no. 3 in a rash and negligent manner and at a very high speed came from front side of the petitioner and hit the scooter. As a result, the injured/petitioner fell down, on the road and sustained injury resulting into complete amputation at distal part of left middle finger and other grievous injuries all over the body.
2. It is further stated that the petitioner/injured was a LLB final year student at the time of accident but due to this accident he was unable to attend his classes. It is also stated that the petitioner has incurred a sum of Rs. 20,000/- on his treatment. Compensation of Rs. 5,00,000/- along with 12 % interest p.a is claimed.
3. Respondent no. 1 and 3, owner and driver of the offending vehicle did not appear hence were proceeded ex-parte on 01.10.2008.
MACT No. 76/10 Page 1/54. The respondent no. 2 i.e. United India Insurance Company Limited, filed its written statement admitting the insurance of the vehicle vide policy no. 221504/31/06/01/00003999 for the period 21.08.2006 to 20.08.2007.
5. On the basis of the pleadings following issues were framed:-
1. Whether the petitioner proves that he suffered injuries in the road accident dt. 25.12.06, occurred within the jurisdiction of PS Preet Vihar, involving vehicle no. DL-5SU-7213, driven by its driver in a rash and negligent manner?
2. Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
3. Relief.
6. The petitioner examined himself as PW-1 and tendered his affidavit in evidence. He examined one more witness i.e. Dr. Binod Kalita from Lal Bahadur Shastri Hospital as PW-2. On the other hand, respondent no. 2 examined two witnesses i.e. Sh. S.S. Bora, Administration Officer, United India Insurance Co. Ltd. as R2W1 and Dayanand clerk in ARTO, Transport Department as R2W2.
7. I have heard counsels for the parties.
My findings on the issues are as under:
ISSUE NO. 1 :-
8. The petitioner deposed that on 25.12.06 at about 7.30 p.m he was going along with his cousin brother Sh. Arun Kumar by his scooter no. DL-7SAD- 1479 and when they reached in front of DAV Public School, Mausam Vihar, a motorcycle no. DL-5SU-7213 being driven in a rash and negligent manner came from the front side and hit the scooter and he fell down from the scooter and sustained complete amputation at distal part of left middle finger and other grievous injuries over his body. The witness exhibited the copy of criminal case record as PW-1/F. During cross- examination he stated that the speed of the motorcycle at the time of accident must be around 70 km per hour and it was a head on collision.
9. From the testimony of the petitioner, FIR and the site- plan, it is clear that the accident has taken place because of the negligence of the respondent no. 3. The site plan shows that the motorcycle was being almost in the wrong lane, which resulted into the said accident.
10. Further there is no reason to disbelieve the testimony of the petitioner. The FIR and site-plan taken together fully establish that the injuries were sustained by petitioner involving Motorcycle registration No. DL-5SU-7213 in a road accident. Even the cross-examination of the petitioner by the counsel for respondent does not create MACT No. 76/10 Page 2/5 any shadow of doubt on the credibility of the petitioner's testimony. The testimony of the Petitioner remained consistent, cogent and trustworthy. There is nothing on record to dispel the inference that petitioner sustained injuries in a road accident which occurred on 25.12.2006 because of rash and negligent driving of Motorcycle bearing no. DL-5SU-7213 being driven by the respondent No. 3. Issue no. 1 is accordingly decided in favour of petitioner and against the respondents.
ISSUE NO. 211. The petitioner stated that as a result of injuries he sustained amputation of the distal part of the left middle finger and grievous injuries all over his body. Debridement and skin grafting was also done and he incurred a sum of Rs. 20,000/- on his treatment and Rs. 15,000/- on special diet and conveyance. The witness further deposed that he was a LLB final year student and could not attend his classes due to the said accident. The witness placed on record his ID card issued by Bar Council of Delhi Ex.PW1/D and permanent disability certificate Ex.PW1/E. During cross-examination he stated that he had been practicing as advocate for the last two years and earning Rs. 6000/- per month approx.
12. There is nothing on record regarding the income of the petitioner at the time of accident. The petitioner has placed on record the copy of the identity card issued by Delhi Bar Council. In the absence of any documentary evidence regarding salary of the petitioner earning capacity of petitioner can be taken in to account. The petitioner was in LLB final year at the time of accident. Therefore income of the petitioner can be assessed to be Rs. 5,000/- per month.
13. I have gone through the discharge summary issued by Kailash Hospital and Research Centre Ltd., which records complete amputation at distal part of left middle limb. The petitioner was admitted on 26.12.06 and was discharged on the same day. It is also recorded that the petitioner undergone debridement and skin grafting. The petitioner has filed bills for Rs. 15,053/- towards expenses incurred on his treatment. The petitioner has also placed on record his certificate of disability Ex.PW1/E, which shows disability of 4% in relation to upper limb. The testimony of PW-2 Dr. Binod Kalita is relevant here. Dr. Binod Kalita proved disability certificate as Ex.PW1/E. During cross-examination the witness could not tell the percentage of disability in relation to the whole body despite being specific question put to the witness in this regard.
14. Ld. counsel for respondent no. 3 placed reliance on "Subash Chand vs Sh. Rulda Singh" reported as 2007 II AD DELHI 636, where the Hon'ble Delhi High Court upheld the decision of tribunal of taking disability, as 10% in relation to whole MACT No. 76/10 Page 3/5 body when the permanent disability in regard to right limb was 25%. Under the facts and circumstances of the present case the percentage of disability in relation to whole body can be considered as 2%. Therefore the loss of earning capacity due to disability can be calculated by multiplying the annual income with percentage of disability and with multiplier of 18 (as the age of the petitioner is 25 years at the time of accident). The total loss in earning capacity on account of disability comes to Rs. 21,600/- (5000x0.02x12x18). Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the petitioner:-
1 Compensation towards pain and suffering and loss of Rs. 35,000/-
amenities 2 Future loss in earning capacity due to disability Rs. 21,600/- 3 Expenses towards medical bills Rs. 15,053/- 4 Reasonable medical expenses (without bills) Rs. 5,000/- 5 Compensation towards conveyance and special diet Rs. 10,000/-
(without bills) Therefore, in my opinion the petitioner is entitled to Rs. 86,653/- (rounded off to Rs. 86,700/-) which shall be the just compensation to petitioner.
LIABILITY
15. The respondent no. 2/insurance company examined two witnesses R2W1 Sh. S.S. Bora, Administrative officer, United India Insurance Co. Ltd. and Sh. Dayanand Clerk in ARTO, Transport Department, Bulandshahr as R2W2. R2W1 Sh. S.S. Bora proved the policy as R2W1/A. He also deposed that the driving license on verification was found to be fake. The testimony of Sh. Dayanand is relevant on this issue who deposed that the DL No. T4640 was issued in the name of one Sh. Omkar Singh for the period 16.09.2002-15.09.2003 he exhibited the relevant page of the register as R2W2/A. R2W1 further deposed that on 18.12.04 no license in the name of Sh. Rajiv Kumar (respondent no. 1) was issued. The respondent no. 2 established that the driving license of respondent no. 1 was fake and hence the respondent no. 2 is entitled for recovery rights.
16. Since the respondent no. 2 has admitted the policy, the respondent no. 2 shall initially satisfy the award. The respondent no. 2 shall be entitled to recover the awarded amount from respondent no. 1.
RELIEF:-
17. While granting the relief to petitioner, I am also to award the interest @ 7.5% p.a on the above said amount of Rs. 86,700/- from the date of filing of petition till realization of the amount. Issue no. 3 is answered accordingly.
MACT No. 76/10 Page 4/518. For the aforesaid reasons, I pass the following award:-
AWARD
19. In view of the above the petition is allowed. The respondent No. 1 and 3 are liable to pay the compensation of Rs. 86,700/- inclusive of interim compensation of Rs. 25,000/- already awarded. However, the respondent no. 2 has admitted the policy, the respondent No. 2, insurance company is hereby directed to pay a compensation of Rs. 86,700/- inclusive of interim compensation of Rs. 25,000/- within one month. The respondent no. 2 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioners. The respondent no. 2 shall be entitled to recover the awarded amount from the respondent no. 1.
20. Compensation amount may be deposited within one month from today. Compensation amount shall be released to petitioner with immediate effect.
21. A copy of the award be given free of cost to the parties concerned. List on 17.10.2010 for compliance.
Announced in the open (Arvind Kumar)
court on 06.09.2010 Presiding Officer
Motor Accident Claim Tribunal
Karkardooma Courts,Delhi
MACT No. 76/10 Page 5/5