Delhi District Court
Ajay Kumar S/O Sh. Gopal Singh vs Sh. Rohit Gupta S/O Sh. Hem Raj Gupta on 1 February, 2010
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IN THE COURT OF SHRI CHANDRA BOSE : JUDGE : MACT :
DELHI
MACT NO. : 1006/07
DATE OF INSTITUTION : 04.05.07 (30.03.07)
DATE OF ARGUMENT : 23.11.09
DATE OF JUDGMENT : 01.02.10
1. Ajay Kumar s/o Sh. Gopal Singh
r/o D-5, New Police Colony, Kingsway Camp,
Delhi-9.
.........Petitioner
Versus
1. Sh. Rohit Gupta s/o Sh. Hem Raj Gupta
r/o F-27, Vijay Nagar, Delhi-9.
2. Steel India Corporation,
X-57/D, Loha Mandi, Naraina, Delhi-28.
3. National Insurance Co. Ltd.,
DO-3, Jeevan Vikas Building, IInd floor,
30-31-A, Asaf Ali Road, New Delhi-2.
.......Respondents
AWARD
1. This is a claim petition filed U/s 166 and 140 of MV
Act 1988 by Sh. Ajay Kumar seeking compensation for a sum
of Rs. 10 lacs in respect of accidental injuries sustained by
him against Sh. Rohit Gupta, Steel India Corporation and
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National Insurance Co. Ltd. (hereinafter to be referred as R1,
R2 & R3 respectively.).
2. Brief facts of the petitioner's case are that on 05.03.04
at about 10:45pm, petitioner was going from his house at
Kingsway Camp to Ashok Vihar on motorcycle bearing no.DL-I-SL-
4875 and when he reached near Polo road near Dhobi Ghat road,
suddenly a Santro car bearing no.DL-9CC-5999 which was being
driven by R1 at a very fast speed, rashly & negligently came from
behind and hit his motorcycle from left side with a great force and
as a result he fell down on the road and sustained injuries. It is
further stated that car was stopped by passers-by and he was
removed to Pentamed Hospital, Derawalan Nagar, Delhi. He has
further stated that he was taken in a car to the hospital and had
become unconscious. He remained in coma for three days due to
head injury and later shifted to Lok Nayak Hospital and remained
there upto 13.03.04.
3. WS filed by R1 & R2 wherein it is stated that petitioner
was heavily drunk and was driving his motorcycle in a complete
drunken state and he was himself negligent at the time of alleged
accident. It is also stated that petitioner had himself struck the
bulged sewer lid on the road while driving his motorcycle near the
Police Lines and he could not control his motorcycle and fell down
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on the road. It is further stated that car of the respondents was
way behind the motorcycle of the petitioner and R1 saw the
petitioner on the road.
4. WS filed on behalf of R3 wherein claim of petitioner has
been denied. However, it has been admitted that vehicle no. DL-
9C-C-5999 was insured with R3.
5. On the basis of pleadings, my Ld. Predecessor framed
the following issues on 09.08.07 :
i) Whether the injured Ajay Kumar sustained grievous
injuries in moto accident caused by rash and
negligent driving of Santro Car no. DL-9C-C-5999 by
Respondent no.1 on 05.03.04 at about 10:45 pm at
main Polo Road near Dhobi Ghat road opposite, NPL
Quarters, Delhi.
ii) Whether the petitioner is entitled to compensation, if
so, to what amount and from whom ? OPP
iii) Relief.
6. Petitioner - Ajay Kumar has filed his affidavit in support
of his case and was cross-examined on behalf of R1 & R2 and also
on behalf of R3 as PW1. R1 also filed his affidavit in support of
his defence and he was cross examined on behalf of petitioner as
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RW1. Dr. S. M. Mishra also examined as RW2.
7. I heard final arguments on behalf of both the parties. I
considered the submissions of counsel for both the parties and
evidence on record. My findings on issues are as under .
8. FINDINGS ON ISSUE NO. 1
In his affidavit petitioner Ajay Kumar has stated that
when he was going from his house at Kingsway Camp to Ashok
Vihar on a motorcycle bearing no. DL-ISL-4875 on 05.03.04, his
motorcycle was hit by Santro Car bearing no.DL-9C-C-5999 from
behind at about 10:45pm as a result of which he fell down and
sustained injuries. I perused the cross examination conducted by
counsel for R-3 and found that nothing has come on record from
which it can be said that his testimony is untrustworthy regarding
the alleged accident. I also perused his cross examination
conducted by counsel for R1 & R2 and found that nothing has
come on record from which it can be said that accident was not
caused due to rash & negligent driving of Santro car bearing no.
DL-9C-C-5999. When a suggestion was put to petitioner that the
road where the accident had caused was under construction and
sewer work was going on, witness has categorically denied the
suggestion as wrong. He has also denied the suggestion put to
him that he was heavily drunk while driving the motorcycle on that
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day. He has categorically stated that R1 hit his motorcycle on the
left side and R1 was coming from behind and the car of R1
dragged his motorcycle for 15-20 feet ahead towards Derawalan
nagar road. He has also categorically stated that "I fell on the
road on my left side and motorcycle also fell on the right
side".
9. On the other hand, RW1 - Rohit Gupta, R1 has filed his
affidavit. He stated therein that no accident had taken place
between motorcycle and his Santro car on 05.03.04. He has
stated that accident had taken place when petitioner hit bulging
sewer lid between gate no. 12 & 13 on New Police Line and he
could not control his motorcycle and fell on the road. During
cross-examination he has stated that he took petitioner in his
car to the hospital.
10. I considered the evidence of petitioner Ajay Kumar and
R1 - Rohit Gupta as above. I have gone through the certified
copy of inspection report of offending vehicle no. DL-9C-C-5999
and motorcycle bearing no. DL-1SL-4875. As per inspection
report of Santro car no. DL-9C-C-5999, fresh damage/scratches on
front bumper and body on the right side corner were found. This
shows that offending vehicle had hit the motorcycle bearing no. DL-
1SL-4875 from behind. As per inspection report of motorcycle
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cycle no. DL-1SL-4875, fresh damages were also found on front
left side indicator light and head light was also found damaged.
Fresh scratches were also found on right side plastic diggi of the
motorcycle and it was also found damaged. Scratches were also
found on handle grip from right side. Fresh damages on
motorcycle shows that it was hit from behind by the offending
vehicle and therefore, I do not agree that no accident was caused
by rash & negligent driving of offending vehicle. Since the
motorcycle on which petitioner was going, was hit from behind, it
clearly establishes that offending vehicle was being driven in a rash
& negligent manner. The MLC Ex-PW1/1 proved the injuries of
the petitioner.
11. Ld. Counsel for R3 submits that in the testimony of RW2,
Dr. S. M. Mishra, it has come that petitioner was drunk when he
was driving the motorcycle. During cross-examination, Dr. S. M.
Mishra admitted that injured had taken alcohol and was smelling
and because smell was very high, therefore, ++ was mentioned at
point A in the MLC. Driving of any vehicle after consuming alcohol
itself is not a negligent driving. Therefore, even if petitioner had
taken alcohol, and thereafter was driving the motorcycle, it itself is
not a ground to conclude that he was driving motorcycle in a
negligent manner. Since the offending vehicle had hit motorcycle
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on which petitioner was going from behind, it shows that accident
had taken place only due to rash & negligent driving of Santro Car
no. DL-9C-C-5999. Therefore, I do not agree with the
submissions of Ld.counsel for R3 that petitioner had contributed to
the cause of accident.
12. For the reasons & discussions as above, I am of the
considered opinion that petitioner - Ajay Kuamr sustained injuries
on 05.03.04 at about 10:45pm due to rash & negligent driving of
Santro Car no.Dl-9C-C-5999 driven by R1. This issue is decided
in favour of the petitioner and against the respondents.
13. FINDINGS ON ISSUE NO. 2
Every victim of roadside accident is entitled to receive
compensation in terms of money. The amount of compensation is
of help to the victim to avail better treatment. It also helps to recoup
their losses and expenditure which had been incurred.
Compensation is granted under following heads:
(I) Compensation for pain & sufferings;
(II) Compensation for expenses incurred on medical
treatment; special diet; conveyance & attendance
charges;
(III) Compensation on account of loss of enjoyment of
amenities of life and general damages;
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(IV) Compensation on account of loss of income;
(V) Compensatation on account of future loss of earning
capacity due to disability;
14. The above mentioned heads are discussed herein
below:-
(I) Compensation for pain & sufferings:
It has co me in evidence that petitioner after the accident
became unconscious and remained in coma for three days due to
head injuries. He remained in Lok Nayak hospital from 06.03.04
to 13.03.04. There is also evidence on record that he remained
under OPD treatment upto 20.09.04. Considering all these facts I
am of the view that petitioner suffered pain & agony during this
period. So petitioner is paid Rs.25,000/- in respect of pain &
sufferings, which would meet the ends of justice.
(II) Compensation for expenses incurred on medical
treatment :
Petitioner has filed 49 medical bills collectively exhibited
as Ex-PW1/5 which are related to medical treatment,
physiotherapy and naturopathy yoga totalling Rs.25,329/-.
Therefore, I am of the view that petitioner is entitled for a sum of
Rs.25,329/- towards medical expenses incurred on his
treatment as such the same is granted to him.
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Petitioner has not filed any bill in respect of special diet
and conveyance. However, he has claimed Rs. 12,000/- on special
diet & conveyance charges. During cross-examination he has
admitted that I do not have any bill to show that I have spent
Rs.6,000/- on special diet and Rs.6,000/- on conveyance.
However, considering the fact that some kind of special diet is
required for treatment of fractures etc. and healing of wounds and
keeping in view that he remained as OPD patient for about couple
of months, I am of the view that petitioner be paid some amount
under this head. Let he be paid Rs. 4000/- on special diet and
Rs. 3000/- as conveyance charges which would meet the ends
of justice.
Petitioner has claimed to have paid Rs.4500/- to the
Attendant to look after him. But no one has been examined to
prove the fact that an attendant was engaged by the petitioner.
Therefore, no amount is granted in respect of attendant
charges.
(III) Compensation on account of loss of enjoyment of
amenities of life and general damages:
Petitioner has remained under treatment for about 6
months and remained on leave for about six & half months and
could not enjoy a normal life. Therefore, it would be in the fitness
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of things if he is paid a sum of Rs. 25,000/- for loss of enjoyment
of amenities of life during his period of treatment. As such he is
granted Rs.25,000/- under this head.
(IV) Compensation on account of loss of income:
Petitioner is a Constable in Delhi Police. As per
evidence he has availed medical leave for six & half months
therefore, he has not suffered any loss of income during this
period. Therefore, he is not entitled for any compensation
towards loss of income due to the accident.
(V) Compensation on account of future loss of earning
capacity due to disability:
There is no evidence that because of disability the salary
of the petitioner was reduced. He being Constable in Delhi Police
has been receiving the same salary and other benefits and his
service conditions have not been effected on account of disability.
Therefore, there is no future loss of earning capacity due to
disability. Therefore, no compensation is granted under this
head.
15. In view of the above discussions, total compensation
head wise payable to petitioner is as under :
1. Compensation for pain & sufferings : 25,000/-
2. Compensation for expenses incurred on : 25,329/-
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medical treatment
3. Compensation for special diet : 4,000/-
4. Compensation for conveyance charges : 3,000/-
5. Compensation for attendant charges : NIL
6. Compensation for loss of enjoyment of : 25,000/-
amenities of life & general damages
7. Compensation for loss of income : NIL
8. Compensatation on account of future : NIL
loss of earning capacity due to disability
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Total 82,329/-
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16. To sum up I hold that petitioner is entitled to receive Rs.82,400/-(rounded off).
17. R1 & R2 are primarily responsible for the payment of compensation and R3 is vicariously liable to pay compensation since offending vehicle was insured with R-3. R-3 is directed to pay the compensation alongwith interest to the petitioner within 30 days.
18. RELIEF:
I have already held above that the petitioner is entitled to receive Rs.82,400/-. Admittedly the vehicle was insured with 12 Respondent No. 3. I direct it to pay the said amount to Petitioner within 30 days of today alongwith interest @ 7.5% per annum to be calculated from the date of institution till date of actual deposit.
19. R-3 is directed to deposit the awarded amount through cheque alongwith interest in the name of petitioner within 30 days of this order before this Tribunal failing which petitioner would be entitled to further interest @ 7.5% for the delayed period.
20. Petition is disposed of on aforesaid terms. File be consigned to record room. Copy be provided to both the parties for compliance.
ANNOUNCED in the OPEN COURT (CHANDRA BOSE)
On 01.02.10 JUDGE/MACT:ROHINI
DELHI
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