Delhi District Court
Sanjeev Sharma vs Surjeet Singh (Driver Cum Actual Owner) on 5 March, 2021
IN THE COURT OF Dr. KAMINI LAU : JUDGE (MACT)01
(CENTRAL) TIS HAZARI COURTS, DELHI
MACT No. 356286/2016
CNR No. DLCT010001352013
Sanjeev Sharma
S/o Sh. Madan Gopal Sharma
R/o H. No. 6A (Back Portion),
Kamla Nagar, Delhi110007.
......Petitioner
Versus
1. Surjeet Singh (Driver cum Actual Owner)
S/o Late Sh. Sardar Surendra Singh
R/o H. No. 209, DDA Flats,
New Ranjeet Nagar, Delhi.
2. Azizuddin (Registered Owner)
S/o Islamuddin
R/o Y48, DDA Flats,
New Ranjeet Nagar, Delhi.
......Respondents
Date of filing of DAR: 23.02.2013
Arguments concluded on: 05.03.2021
Date of passing of Award: 05.03.2021
A W A R D:
(1) The Detail Accident Report (DAR) has been filed on
23.02.2013 and has been registered as Motor Accident Claim Petition
Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 1 of 43
Digitally signed by KAMINI LAU
KAMINI LAU Date: 2021.03.05 17:01:32
+0530
in respect of an accident which took place on 24.02.2011 at about 12.55
PM on road leading to Panchkuiya Road from Anarkali Chowk side
near Anarkali Bazar, Delhi.
BRIEF FACTS:
(2) The Facts in Brief as emerged from the DAR are that on 24.02.2011 at about 12.55 PM the petitioner Sanjeev Sharma was crossing the road from commercial shops side for going towards Anarkali Bazar Building and had almost crossed it when at that very time Motorcycle bearing registration No. DL9SQ7582 make Bajaj Avenger came on the road from Videocon Tower side after crossing Anarkali Chowk which was being driven by its driver at high speed rashly and negligently in complete disregard to traffic regulations and struck against the petitioner. The said motorcycle hit the petitioner Sanjeev Sharma and on account of forceful impact, he was thrown away on the road as a result of which he suffered multiple grievous injuries including grievous head injury. The injured Sanjeev Sharma was taken to RML Hospital where he was treated and as a result of the accident, the injured suffered 100% Permanent Disability. Pursuant to the accident, an FIR No. 21/2011 was registered under Sections 279/338 IPC & 3/181,146,196 of Motor Vehicles Act at Police Station Paharganj.
(3) Perusal of the record reveals that statement of facts was filed on behalf of the petitioner on 30.07.2013 according to which the petitioner had suffered severe head injury (B/L Frontal contusion along Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 2 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:01:45 +0530 with L temporal contusion along with L FTP acute SDM). It is pleaded that the petitioner is totally bed ridden and unable to move without help and in medical terminology the petitioner is a case of "Altered Sensorium, Total inconsistence of Urine, Severe Dysartria. His physical impairment in relation to body is 100% (One Hundred Percent)". It is also pleaded that at the time of accident the petitioner was 48 years of age, having sound health and physique, engaged in business of Photocopier Center cum Stationary Shop at 2E/13, Jhandewalan Extension, New Delhi and was earning Rs.24,000/ per month. It is further pleaded that the petitioner being 100% disabled person, the claim petition was filed by his wife for and on behalf of the petitioner as next friend and in total a compensation to the tune of Rs.50,00,000/ (Rupees Fifty Lacs only) has been claimed. (4) A detailed reply has been filed on behalf of the respondent no.1 Surjeet Singh wherein a preliminary objection has been raised that on 24.02.2011 the accident had taken place only because of the negligence of the petitioner and the real fact of the matter is that the respondent no.1 was driving the bike quite carefully and vigilantly and at an average speed, however, suddenly the petitioner came running in front of the bike on account of which the accident occurred. It is further pleaded that the petitioner was completely negligent and did not pay any heed to the vehicles running on the road nor did he care about the traffic rules and suddenly came in front of the bike which was being driven by respondent no.1 and collided with it. According to the respondent no.1, he tried his best to save the petitioner and got hurt in this process but the Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 3 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:01:55 +0530 respondent no.1 could not have controlled the moves of the petitioner due to which reason the accident took place. It is further pleaded that because of the negligence and carelessness of the petitioner, the respondent no.1 has been dragged to contest the present petition. It is also pleaded that the driver can only control and be careful about his driving and cannot control the moves/ driving of other vehicles or persons walking on the road. It is further pleaded that the respondent no.1 was riding the bike diligently and consciously but due to the sudden appearance of the petitioner who came running in front of the bike, the accident could not be avoided despite best efforts of the respondent no.1. On merits the respondent no.1 has denied all the allegations made against him by the petitioner and has also denied all the claims of the petitioner.
(5) A detailed reply has also been filed on behalf of the respondent no.2 Ajijuddin wherein it is submitted that as per the FIR the alleged offending vehicle bearing No. DL9SQ7582 Motorcycle met with an accident in which the petitioner allegedly received injuries. It is pleaded that the alleged accident was not caused with the vehicle of the respondent and the police has registered the false and frivolous case against the respondent no.2. It is further pleaded that the alleged offending vehicle does not belong to the respondent no.2 at time of the alleged accident since the vehicle was sold by the respondent No.2 to Salim Khan S/o Abdul Khan resident of C291, J.J. Colony, Bakkarwala, New Delhi110041 (Mobile No. 9810280728) after which Salim Khan sold the said vehicle to the respondent no.1 Surjeet Singh Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 4 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:02:06 +0530 who is the sole and absolute owner of the vehicle in question. It is also pleaded that since the date of selling out the vehicle in question i.e. 20.11.2010, the respondent No.2 has no concern whatsoever with the alleged offending vehicle and hence, the respondent No.2 is liable to be deleted from the array of the respondents. According to the respondent no.2, the DAR/ Report is not maintainable and the same is false, frivolous, misconceived, baseless, made in collusion with the petitioner and his family members with a view to file to false claim petition against the respondent no.2 before the Tribunal. It is further pleaded that the petitioner has filed the false and frivolous case against the respondent No.2 only with a view to extort money from him. It is also pleaded that the DAR is not just and proper and is made without considering the actual facts and circumstances of the case and records made available with the agency since the respondent no.2 had sold the said vehicle to Salim Khan and the police without proper verification made the DAR report, although the Salim Khan was the proper and necessary party for the just decision of the present case.
ISSUES FRAMED:
(6) On the basis of the pleading of the parties, vide order dated 19.02.2014 the following issues were framed by the Ld. Predecessor of this Court:
i. Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 24.02.2011 within the jurisdiction of PS Pahar Ganj due to rash and Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 5 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:02:15 +0530 negligent driving of the vehicle bearing registration No. DL9SQ7582 by Respondent No.1?
ii. Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
iii. Relief. EVIDENCE: (7) In order to prove his case the petitioner has examined Four
Witnesses. On the other hand the respondent no.1 Surjeet Singh has examined himself as his sole witness as RW1. (8) For the sake of convenience, the testimonies of all the witnesses examined by the petitioner and the respondent are put in tabulated form as under: S. Witness Deposition No. Petitioner / Injured
1. Dr. Ajay PW1 Dr. Ajay Chaudhary is the Professor Neuro Surgery, Chaudhary (PW1) Ram Manohar Lohia Hospital Delhi has in his examination in chief has deposed on the following aspects:
1. That on 01.04.2015, patient namely Sanjeev Sharma was examined by Disability Examination Board constituted by Medical Superintendent of their hospital and he himself was the member of that Board.
2. That the patient was found to contain 90% permanent physical disability in relation to right side of the body and dysarthria (difficulty in speech).
3. That he has brought the office records of the Disability Certificate which is Ex.PW1/A. Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 6 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:02:26 +0530
4. That on account of disability suffered by Mr. Sanjeev Sharma, he cannot perform even the daily pursuits of the life and he is totally dependent on his care giver for all his day to day requirement and activities.
In his cross examination by the Ld. Counsel for the respondents, the witness has deposed as under: That he does not remember when he examined the injured for the first time.
That the MLC was not prepared in his presence. That the disability certificate was prepared after examining the injured by the board.
The witness Dr. Ajay Chaudhary (PW1) was recalled for additional statement/ clarifications wherein he has deposed as under:
1. That he was senior most treating doctor of the patient Sh. Sanjeev Sharma, the injured of the present case.
2. That after seeing the original discharge summary particularly the portion from A to A wherein the words written are "referred from private hospital with alleged history of RTA on 24.02.2011", he stated that he had not seen any referral documents of the patient.
3. That he only relied on the verbal information given by the patient's attendants, as they do generally in all cases.
4. That the patient attendants was not having any medical record of the previous/ referral hospital.
5. That he has seen the MLC No. 25088/4 of Sanjeev Sharma and he state that there is no mention about any reference from any hospital, therein whatsoever.
6. That he also produced medical file of the said patient and referred to the first history recording of the patient dated 24.02.2011 i.e. before starting his treatment and this paper does not mention of any reference from any other hospital whatsoever.
7. That the copy of the said paper taken on record which is bearing the signature of Sr. Resident but he cannot identify the particulars of Sr. Resident whose Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 7 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:02:40 +0530 signatures it bears.
8. That the copy of document is marked as Mark P1X1 (OSR).
9. That he can offer the explanation of the mentioned words at point A to A in the discharge summary as only being the attendant of the patient and according to him it has no significance.
10. That he has no relation and friendship with the petitioner or his family members.
11. That if he was in place of doctor who had prepared the discharge summary and knowing that there was no case of referral as per MLC and other documents, before adding new words like "referral from the private hospital" he would certainly ask the attendant about the name of the hospital and the referral paper.
12. That some time they do consult the patient and the attendant also while preparing the discharge summary.
13. That he had not prepared the discharge summary.
14. That he cannot say whether doctor who had prepared the discharge summary had consulted the patient and attendant and then added the word of referral.
15. That he cannot identify the signature on the discharge summary.
16. That the witness was asked to specify the external injury recorded in the MLC of Sanjeev Sharma, on which the witness replied that "....(a) Right ear bleed, (b) superficial abrasion and no other external injury...".
17. That he has seen these injuries mentioned on the MLC and he has also gone through the disability certificate on court record Ex.PW1/A and he stated that the kind of disability mentioned therein i.e. severe hemiparesis and dysarthria both of which mean one sided paralysis i.e. speech disability can result even from the injury mentioned in the MLC.
18. That a specific question was put to the witness as to how on the basis of medical documents available on court file and his file make connection between the two injuries mentioned in the MLC on the one hand disability mentioned in the certificate Ex.PW1/A, to which the witness replied that document Mark Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 8 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:02:55 +0530 P1X1 was the first document which was prepared by neurosurgery department immediately after the MLC of the patient.
19. That even the MLC, it is mentioned that the patient was unconscious.
20. That the medical file brought by him contains medical papers of the same patient from other department as well.
21. That there was no other medical paper prepared by any department whatsoever, between the MLC and Mark P1X1.
2. HC Babrik Kumar PW2 HC Babrik Kumar is the alleged eye witness in the (PW2) present case who in his examinationinchief has deposed on the following aspects:
1. That he is the summoned witness in the present case.
2. That he is an Eye Witness of the present case and on 24.02.2011 at about 12.45 PM he was performing the duties of patrolling from 9:00 AM to 9:00 PM.
3. That he has given his statement to the IO/SI Amrish Giri on 24.02.2011 which is Mark PW2/1.
4. That on the basis of his statement, FIR No. 21/2011 dated 24.02.2011 under Section 279/338 IPC and Section 3/181, 146/196 of M.V. Act has been registered which is Mark PW2/2.
5. That the accident has been caused due to high speed, rash and negligent driving on the part of the driver of the motorcycle namely Surjeet Singh having bearing registration No.DL9SQ7582.
In his cross examination by the Ld. Counsel for the respondents, the witness has deposed as under: That he does not have any proof that he was on traffic patrolling duty from 9:00 AM to 9:00 PM on 24.02.2011.
That he has given his statement to IO at the place where the accident took place.
That the accident took place around 12.45 PM. That the IO namely SI Amrish Giri reached the spot within 1015 minutes from the time of accident. That before IO reached the spot, he took the injured person to the RML Hospital with the help of the public.
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That he did not personally take the injured to the said hospital.
That he left the spot after handing over the driver and the pillion rider to the IO as well as vehicle involved in the case to the IO and after giving his statement to the IO.
That the site plan Ex.PW2/3 was not prepared in his present.
That the place where the accident took place is a commercial hub in the heart of Central Delhi. That the place of accident being a commercial centre remains crowded during the day time. That the place of accident was very crowded even on the date of accident.
That he was standing at point A marked in Ex.PW2/3 when he saw the motorcycle in question which was coming from Rani Jhansi Road towards Jhandewalan marked at point B in Ex.PW2/3.
That he was standing at the distance of 5060 meter from the place of accident.
That there were only 510 people present between the point where he was standing and the place of accident.
That he does not know the exact speed of motorcycle but it was driven at a high speed.
That he has been specifically asked as to how can he say that the motorcycle was driven rashly and negligently, the witness stated that he can say so since the motorcycle was driven by the respondent no.1 in a high speed, in a zig zag manner.
That as per his understanding rash and negligent means a person drives a vehicle in a careless manner without taking into account the safety of himself and others.
That in the said accident injury was caused only to Sh. Sanjeev Sharma and not to any other person. That the injury was also caused to the driver of the motorcycle and not anyone else.
That he cannot tell as to why the pillion rider did not suffer any injury.
That the motorcycle was hit at abdomen of the injured person namely Sanjeev Sharma and has voluntarily explained that due to the impact the Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 10 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:03:13 +0530 injured fell down from the motorcycle thereby sustaining injury to his abdomen and other part of his body.
That he has not seen the injured person Sh. Sanjeev Sharma while walking on the street before accident took place.
That he only saw him for the first time when the motorcycle hit him.
That a crowd of around 2025 people gathered on the spot.
That he does not remember the name of the pillion rider.
That he is not aware as to whether the IO has recorded the statement of any person beside he himself or not.
That he cannot tell from the site plan Ex.PW2/3 from which point the injured was crossing the road before the accident took place.
That the driver of the motorcycle in the accident got a minor injury in his leg.
3. Ms. Kavita PW3 Ms. Kavita Sharma is the wife of the injured who in Sharma (PW3) her examinationinchief by way of affidavit Ex.PW3/A has corroborated what has been earlier stated in the claim petition. She has placed her reliance upon the following documents:
1. Four discharge summaries which are collectively Ex.PW3/1.
2. Copy of the OPD slips which are collectively Ex.PW3/2.
3. Original medical bills which are Ex.PW3/3.
4. Rent deed dated 01.08.1993 which is Ex.PW3/4.
5. Photocopy of Rent Deed dated 23.04.2008 which is Mark X.
6. Copy of education qualification certificate of her husband which are collectively Ex.PW3/5 and Ex.PW3/6.
7. Death Certificate of Madan Gopal Sharma father of the injured which is Ex.PW3/7.
8. Copies of Election ICards of Sanjeev Sharma, Kavita Sharma, Apporv Sabrun & Adya Sabrun which are collectively Ex.PW3/8.
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9. Photocopy of her Aadhar Card which is Ex.PW3/9.
10. Copy of Aadhar Card of her son which is Ex.PW3/10.
11. Copy of Aadhar Card of her daughter which is is Ex.PW3/11 (OSR).
In her cross examination by the Ld. Counsel for the respondents, the witness has deposed as under: That he is a housewife and is undergraduate. That in their family, they are four members i.e. her husband (Petitioner), her son, daughter and she herself.
That her son is 28 years of old and is doing job in a Call Center but she is not aware of his earnings. That her daughter is 25 years of age and is pursuing German Language Course from Delhi University. That her son as well as her brother are providing financial support to their family.
That before the accident, her husband was running a shop of photostate and stationary articles. That she has visited only once or twice to the said shop which is situated at Jhandewalan, Delhi. . That she does not know the landlord of the said shop.
That she is not aware of the amount of rend qua the said shop.
That the said shop is lying closed after the accident. That neither she herself nor any of her family members ever visited the said shop.
That the keys of the said shop are lying with her. That her husband was earning Rs.24,000/ to Rs.25,000/ from the said shop before the accident which took place on 24.02.2011.
That she does not have any proof of his income. That her husband was having a PAN Card, but the same was lost during the said accident.
That she does not have photocopy of the same. That she does not know if her husband was an income tax payee.
That she also does not know if he ever paid income tax.
That she has not placed on record any bills or proof with regard to her visited to the OPD and for Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 12 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:03:34 +0530 physiotherapy as stated by her in para no. 6 of her affidavit.
That she has not placed any document with regard to the amount spent on the conveyance.
That at present, she alongwith her husband and two children are residing on rent in Pitampura.
4. Ms. Lakshmi PW4 Ms. Lakshmi i.e. Record Clerk, RML Hospital, New (PW4) Delhi who in her examinationinchief has deposed on the following aspects:
1. That she has brought the summoned record i.e. the office copy of the MLC bearing No. 25088/11 of Sh. Sanjeev Sharma which is Ex.PW4/1 which bears the signatures of Dr. Arti, Medical Officer at point encircled A.
2. That she can identify her signatures as she had seen her while writing and signing during her official course of duties.
3. That she has also brought the office file containing the discharge summary of the petitioner Sanjeev Sharma copy of the which is Ex.PW4/2.
In her cross examination by the Ld. Counsel for the respondents, the witness has deposed that she has no personal knowledge about the content of the MLC or the discharge summary which are Ex.PW4/1 and Ex.PW4/2 and has voluntarily explained that she has only brought the official summoned record.
Respondent's Witness:
5. Surjeet Singh RW1 Surjeet Singh is the respondent no.1 who in his (RW1) examinationinchief by way of affidavit Ex.RW1/A has corroborated what he has earlier stated in the written statement.
In his cross examination by the Ld. Counsel for the petitioner, the witness has deposed on the following aspects:
That he does not know whether the present matter pertain to DAR.
That he has been chargesheeted for causing the accident.
That the accident took place immediately after crossing the red light.
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That he does not know the name of the crossing. That before entering the crossing, he has overtaken the bike of a police.
That he has overtaken from the right side but after overtaking the bike driven by the police official he was going straight.
That the witness has denied the suggestion that he has overtaken the police official from left. That at the time of accident, he was not having any Driving License.
That no Driving License was issued to him by the Transport Authority at the time of accident. That he knew the rules and regulations of driving. That he does not know where the said rules and regulations have been written.
That the witness has denied the suggestion that he does not know the driving and at the time of accident, he was not following the traffic rules because he was driving the vehicle at a very slow speed.
That the RC of the vehicle in question was not in his name.
That the IO has no enmity with him nor the complainant Babrik Kumar has enmity with him. That he has not filed any complaint before any authority against claimant or the IO.
That the witness has denied the suggestion that to avoid criminal liability as well as the claim case, he has built up false ground.
Investigating Officer:
6. SI Amrish Giri SI Amrish Giri is the Investigating Officer of the present case who has been examined as a Court Witness. In his examination in chief the witness has deposed on the following aspects:
1. That he was the first IO/ main IO of the present case.
2. That on receiving of call from PCR, he first went to the spot of accident and thereafter went to RML Hospital.
3. That he did not go to any other hospital.
4. That the first hospital that he went to was only RML Hospital.
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5. That he has seen the words from portion A to A, wherein it is mentioned that patient had been referred from a private hospital (photo copy of discharge summary is Mark CX1.
6. That he cannot say as to whey the said hospital has used these words about the patient having been referred from private hospital.
7. That he has no clue for the reasons for mentioning of these words even after checking his own file.
8. That the injured had straightway been taken from the spot to RML hospital and nowhere in between.
9. That after thorough investigations only, he filed the chargesheet in this case.
FINANCIAL STATEMENT:
(9) In terms of the directions of the Hon'ble Delhi High Court in FAO No. 842/2003 under the title Rajesh Tyagi & Ors. Vs. Jaivir Singh & Ors. decided on December 07, 2018, the Financial Statement of the petitioner was directed to be recorded. Pursuant to the same on 11.07.2019 the petitioner Sanjeev Sharma had appeared in the Court along with his wife Smt. Kavita Sharma when it was observed by the Ld. Predecessor of this Court that the petitioner was not in a position of speaking coherently and to answer the court and hence, his wife Smt. Kavita Sharma was allowed to be examined with respect to the financial status of the family members of the injured.
(10) In the Financial Statement, Smt. Kavita Sharma wife of the injured has stated that the injured/ victim Sh. Sanjeev Sharma is unable to speak having suffered permanent disability on account of injuries sustained in motor accident which occurred on 24.02.2011. She has produced her original Aadhar Card and that of her husband Sh.
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Sanjeev Sharma and also the PAN Card of Sanjeev Sharma which are Ex.CX1 to Ex.CX3. According to her, the petitioner has opened a savings bank account of PNB, Pitampura Branch. She has produced the original pass book bearing the necessary endorsement at X1 and also the photograph of her husband duly attested by bank affixed at point X2, on the original and copy thereof is Ex.CX4. She has also produced the three samples LTI (thumb impressions) of her husband on separate sheet which is Ex.CX5. According to her, they have shifted to Pitampura address one and a half year's back but she was not having any document of residence address of Pitampura (11) She has further stated that her husband had been running a stationerycumphotocopy shop at Jhandewalan in a rented shop but after the accident, the shop is lying closed and they are not paying any rent ever since 2011 itself i.e. after the accident. According to her, the landlord is asking them to vacate the shop but some settlement talks are going on. She has stated that till 2011, the rent was about Rs.1,000/ or Rs.1,100/ but the landlord has been increasing the same and she has no idea about the increase of the rent. According to her, the rent agreement is already part of court record and the same is Ex.PW3/4. She has also stated that they have two children, one unmarried son namely Apoorv who was doing a job at Call Center for Barcleysand and one daughter namely Adya (unmarried) who is qualified B. Sc, B.Ed however, she is not doing any job and is studying advance diploma in German language from Delhi University. According to her, she has no idea about the salary of Apoorv but he gives her Rs.15,000/ towards household Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 16 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:04:07 +0530 expenses. She has further stated that the bank account of her husband was at Central Bank, Jhandewalan while he was doing business. According to her, they are residing at Pitampura in her brother's house namely Nand Kishore Jamdagny who is not taking any rent from them so far and their whole family i.e. she herself, her husband and their children are staying on the first floor itself. According to her, she has been a housewife/ homemaker since beginning and apart from Rs.15,000/ gives by her son, it is he who also has been arranging the kitchen items sometimes and sometimes her husband's sister and her own brother, they all helped and contribute. She has stated that there is no fixed amount of their contribution, sometime Rs.5,000/, sometime Rs.10,000/ and same is the position of her brother. She has further stated that they are paying the electricity and water charges and in summers the bill ranges upto Rs.3,000/ to Rs.4,000/ whereas in other months it ranges from Rs.800/ to Rs.1,500/ and the kitchen expenses ranges between Rs.15,000/ to Rs.20,000/. She has also stated that there is no specific medicine for neurological problem and the medicine has been stopped as per the advice of the doctor but her husband is taking physiotherapy, homeopathic treatment and also special diet juices etc. as he is vegetarian. According to her, the Physiotherapist come to their house, sometime on alternate days or sometime on greater interval, depending on their financial situation and every visit of physiotherapist cost Rs.500/. She has stated that they are not in a position to engage a attendant due to financial difficulty since the Attendant charges may cost from Rs.15,000/ to Rs.20,000/ and in case more amount is Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 17 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:04:17 +0530 released directly, she would engage an attendant for her husband.
FINDINGS AND OBSERVATIONS:
(12) I have heard the arguments advanced before me by the Ld. Counsel for the petitioner and the Ld. Counsel for the respondent no.1. I have also gone through the written memorandum of arguments filed by the parties and given my thoughtful consideration to their contentions.
My findings on the various issues are under:
Issue No.1: Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 24.02.2011 within the jurisdiction of PS Pahar Ganj due to rash and negligent driving of the vehicle bearing registration No. DL9SQ7582 by Respondent No.1?
(13) Onus of proving this issue was upon the petitioner. The case of the petitioner is that on 24.02.2011 at about 12.55 PM he was crossing the road from commercial shops side for going towards Anarkali Bazar Building when a Motorcycle bearing registration No. DL9SQ7582 make Bajaj Avenger came from Videocon Tower side after crossing Anarkali Chowk which was being driven by its driver at high speed rashly and negligently in complete disregard to traffic regulations and hit the petitioner. On account of forceful impact, the petitioner Sanjeev Sharma suffered grievous injuries including grievous head injury and was taken to RML Hospital where he was treated. As a result of the accident, the injured suffered 100% Permanent Disability. Pursuant to the accident, an FIR No. 21/2011 was registered under Sections Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 18 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:04:25 +0530 279/338 IPC & 3/181,146,196 of Motor Vehicles Act at Police Station Paharganj.
(14) In so far as the respondent no.1 Surjeet Singh (drivercum actual owner) is concerned, he has not disputed the accident and has only denied the rashness and negligence so attributed to him. According to him, the accident had taken place only because of the negligence of the petitioner who came running in front of his bike on account of which the accident occurred. The respondent no.1 Surjeet Singh has alleged that he had also sustained injuries on account of the negligence on the part of the petitioner Sanjeev Sharma.
(15) The respondent no.2 Ajijuddin is the registered owner of the alleged offending vehicle. According to him, he had sold the alleged offending vehicle to one Salim Khan S/o Abdul Khan resident of C 291, J.J. Colony, Bakkarwala, New Delhi110041 (Mobile No. 9810280728) who then sold the said vehicle to the respondent no.1 Surjeet Singh who is the sole and absolute owner of the vehicle in question.
(16) Coming first to the identity of the respondent no.1 Surjeet Singh as the driver of the offending vehicle, I may note that he has not disputed that he was driving the offending vehicle i.e. motorcycle bearing No. DL9SQ7582 at the time of accident nor does he dispute his presence at the spot of accident. Rather, it is the case of the respondent no.1 Surjeet Singh that the accident had taken place on account of the negligence of the petitioner himself. The perusal of the FIR which forms a part of the DAR shows that the respondent no.1 Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 19 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:04:33 +0530 Surjeet Singh has been specifically named in the same. Therefore, I hold that the identity of the respondent no.1 Surjeet Singh as driver of motorcycle bearing No. DL9SQ7582 stands established. (17) In so far as the aspect of Injuries caused to the petitioner Sanjeev Sharma is concerned, the case of the petitioner is that on account of the accident in question he has suffered severe heady injury i.e. Hemiparesis and Dysarthria as a result of which the petitioner Sanjeev Sharma is unable to perform the daily pursuits of life and totally dependent for his day to day requirements. I have gone through the records of the case and it is evident from the MLC of the injured that he was brought to RML Hospital on 24.02.2011 at 1:40 PM by one Tilak Dua S/o Daulat Ram. As per the said MLC there was bleeding from right ear with superficial abrasion over face and there was no other external injury but after NCC of head was done, immediately emergency head surgery was done. Though the life of the injured was saved but there was a permanent disability.
(18) Ld. Counsel for the respondent no.1 has tried to demolish the case of the petitioner and has argued that the petitioner has failed to establish that the quantum of injuries sustained by him was only due to the accident in question since as per the Discharge Summary issued by the RML Hospital, the injured was first taken to a private hospital before bringing him to the RML Hospital. He has argued that even if it is assumed that the respondent no.1 was driving the motorcycle in a rash and negligent manner because of which the injured had sustained the alleged injuries then it is not possible that the injured has not sustained Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 20 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:04:41 +0530 any external injury.
(19) I have considered the arguments advanced before me and I may note that the Investigating Officer SI Amrish Giri was examined by the Ld. Predecessor Court as a Court Witness wherein he has specifically stated that the first hospital he went was only RML Hospital and he did not go to any other hospital. Merely because in the Discharge Summary it has been mentioned that "referred from private hospital with alleged history of RTA on 24.02.2011", does not mean that the injured was actually taken to a private hospital first and then to RML Hospital. I may also note that the history has been mentioned as Road Traffic Accident and is dated 24.02.20211 i.e. the same date on which the accident had taken place. Simply because the Investigating Officer SI Amrish Giri has not conducted proper investigations does not mean that benefit of the same should be given to the offender. The manner in which the accident had taken place does not rule out the possibility that public persons might have taken the injured to the nearest hospital from where he was referred to RML Hospital. It was the job of the Investigating Officer SI Amrish Giri to have got confirmed the said private hospital and even if the IO has not done the required investigations, the medical documents on record confirm the injuries and disability suffered by the petitioner and hence, no benefit of the same shall be given to the respondent no.1 Surjeet Singh. (20) In so far as the aspect of there being no external injury is concerned, I may observe that no doubt, when the MLC was prepared there was no external injury except bleeding from right ear with Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 21 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:04:53 +0530 superficial abrasion over face but it was later when NCCD Head was done that an emergency surgery was performed over the head of the injured pursuant to which he suffered almost 90% Permanent Disability. In fact, perusal of the record confirms that the petitioner Sanjeev Sharma had sustained Severe Head Injury with Severe hemiparesis and Dysarthria which constitute a permanent physical disability of 90% which is unlikely to improve. The Disability Certificate in this regard is Ex.PW1/A duly proved by Dr. Ajay Chaudhary (PW1), which has not been controverted or rebutted. Here, I may note that on 11.07.2019 when the case was listed for recording the Financial Statement of the petitioner, the petitioner Sanjeev Sharma had appeared before the Ld. Predecessor of this Court. The physical and mental condition of the petitioner was observed by the Court and it was specifically observed by the Ld. Predecessor of this Court as mentioned in the proceeding sheet dated 11.07.2019 which I quote as under:
".... Physical and mental condition of the petitioner has been observed and he does not seem to be in a position of speaking coherently and to answer the court. As such, his wife Smt. Kavita Sharma present along with her original Aadhar Card and also original aadhar Card of her husband is allowed to be examined with respect to the financial status of the family members of the injured....."
(21) Now coming to the aspect of rashness and negligence so attributed to the respondent no.1 Surjeet Singh. I may note that the present case has been registered on the basis of the statement of eye Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 22 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:05:05 +0530 witness HC Barbrik who has been examined by the petitioner as PW2 wherein he has has specifically deposed that the accident had caused on account of high speed, rash and negligent driving on the part of driver of motorcycle bearing No. DL9SQ7582 namely Sh. Surjeet Singh. (22) Ld. Counsel for the respondent no.1 has tried to defeat the testimony of eye witness HC Barbrik (PW2) and has pointed out that the said witness has admitted having seen the injured only when he was lying on the road after the accident. He has also argued that it is not possible for the witness to see the motorcycle hitting the injured persons. In this regard, I may note that the respondent no.1 Surjeet Singh has in his crossexamination specifically admitted that HC Barbirk (PW2) has no enmity with him. Further, perusal of the FIR shows that when the Investigating Officer SI Amrish reached the spot, HC Barbrik had met him and it was he who handed over the driver of the motorcycle namely Surjeet Singh to him. The above fact finds due corroboration from the testimony of HC Barbrik Kumar (PW2) who in his testimony has specifically deposed that he left the spot after handing over the driver and the pillion rider along with the offending vehicle to the Investigating Officer. Here, I may note that in his first statement given to the IO, the witness HC Barbrik Kumar had stated that the offending motorcycle had overtaken his motorcycle in a fast speed. This fact again finds a corroboration from the crossexamination of respondent no.1 Surjeet Singh (RW1) who had admitted that before entering the crossing, he had overtaken the bike of the police official. This fact that the respondent no.1 Surjeet Singh had overtaken the bike of police official HC Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 23 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:05:18 +0530 Barbrik Kumar at a fast speed, points out towards the rashness and negligence so attributed to the respondent no.1 Surjeet Singh. It is also an admitted case of the respondent no.1 Surjeet Singh that at the time of accident he was not having any Driving License nor any Driving License was issued to him by the Transport Authority. Hence, there is a presumption against the respondent no.1 Surjeet Singh that he was not aware of the traffic rules.
(23) Ld. Counsel for the respondent no.1 has further argued that the respondent no1. Surjeet Singh has been acquitted of the charges under Section 279/338 IPC read with Section 146/196 of Motor Vehicles Act by the court of Ld. ACMM01 (Central), Tis Hazari Courts, Delhi vide judgment dated 04.12.2019.
(24) I may note that the Ld. ACMM has acquitted the respondent no.1 Surjeet Singh because the prosecution has not been able to prove its case against him. In this regard, I may observe that in a criminal case the rashness and negligence against the accused has to be proved beyond reasonable doubt whereas in a civil case or MACT claim for grant of compensation the principle involved is preponderance of probability. It would be sufficient if the surrounding circumstances and the material on record establishes the allegations of rashness and negligence made against the driver of the offending vehicle, as in the present case. (25) As a general rule the petitioner is required to prove negligence but in certain cases where the injured is only able to prove the accident but is unable to prove the origin of negligence due to his physical disability, then under the given circumstances the principle of res ipsa Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 24 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:05:30 +0530 loquitur if found applicable, can always be considered. Sir William Erle in the case of Scott vs. London & St. Katherine Docks Co. reported in (1865) 3 HC 596 applied the said principle and observed as under:
".....Where the thing is shown is under the management of the defendant or his servants and the accident is such, as in the ordinary course of things does not happen, if those who have the management use proper care. Then in the absence of any explanation by the defendant, it can be presumed that the accident arose for want of care. In such cases mere happening of the accident affords a reasonable evidence in the absence of any explanation by the defendant that it was due to the negligence of the defendant......"
(26) This doctrine of res ipsa loquitur squarely applies to the facts of the present case as no evidence to the contrary has come on record. In the present case, the eye witness namely HC Barbrik Kumar (PW2) has specifically deposed that the accident had been caused due to high speed, rash and negligent driving on the part of the driver of the motorcycle bearing No. DL9SQ7582 i.e. respondent no.1 Surjeet Singh. He has duly proved that he had given his statement to the IO SI Amrish Giri on 24.02.20211 which is Mark PW2/1 on the basis of which the present FIR was registered.
(27) Also, the Mechanical Inspection Report of the offending motorcycle bearing No. DL9SQ7582 confirms that the Front right side leg guard and petrol tank was damaged and Front mudguard & headlight were broken and this corroborates the first statement of eye witness HC Barbrik that after hitting the pedestrian the motorcycle also Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 25 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:05:40 +0530 fell down on the road. It is this which confirms the rashness and negligence so attributed to the respondent no.1 Surjeet Singh who was driving the motorcycle bearing No. DL9SQ7582 without a driving License as a result of which the petitioner Sanjeev Sharma suffered 90% Permanent Disability.
(28) Issue is accordingly decided in favour of the petitioner and against the respondents.
Issue No.2: Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(29) The case of the petitioner is that at the time of accident he was running a Photocopier Center cum Stationary Shop at 2E/13, Jhandewalan Extension, New Delhi and was earning Rs.24,000/ per month. According to the petitioner, after the accident in question, he became 100% disable and is unable to earn anything. The petitioner is claiming total a total compensation to the tune of Rs.50,00,000/ (Rupees Fifty Lacs only).
(30) In so far as the respondents are concerned, it is an admitted case that the offending motorcycle bearing No. DL9SQ7582 was not insured at the time of accident. Here, I may note that as evident from the proceeding sheets dated 25.07.2019 before the Ld. Predecessor Court the respondent no.1 Surjeet Singh had offered Rs.15 lacs towards compensation to the petitioner which did not workout. However, it was now at the final stage, after the lockdown of Covid19, that the wife of the petitioner on behalf of the petitioner agreed to accept the said offer Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 26 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:05:50 +0530 of Rs.15 Lacs but the respondent no.1 Surjeet Singh totally backedout and withdrew the said offer.
(31) I have gone through the testimonies of the various witnesses examined by the parties and the documents on record. Coming first the to the medical expenses incurred by the injured Sanjeev Sharma, his wife Smt. Kavita Sharma (PW3) has placed on record the medical bills which are collectively Ex.PW3/3. The wife of the petitioner has claimed that there are total 199 medical bills, however, on perusal of the same it is evident that there are total 176 bills, details of which are as under:
S. No. Name of the Chemist Date Receipt No. Amount in Rs.
1. New Delhi Medicos 24.02.2011 321108 1261 2. New Delhi Medicos 25.02.2011 321965 213 3. New Delhi Medicos 26.02.2011 654712 55 4. New Delhi Medicos 26.02.2011 323326 58 5. New Delhi Medicos 01.03.2011 326295 48 6. New Delhi Medicos 01.03.2011 326349 95 7. New Delhi Medicos 01.03.2011 326519 70 8. New Delhi Medicos 02.03.2011 326818 29 9. New Delhi Medicos 02.03.2011 327211 29 10. New Delhi Medicos 02.03.2011 327053 32 11. New Delhi Medicos 03.03.2011 327987 44 12. New Delhi Medicos 03.03.2011 327374 380 13. New Delhi Medicos 04.03.2011 328276 44 14. New Delhi Medicos 04.03.2011 329339 29 15. New Delhi Medicos 05.03.2011 329407 570 16. New Delhi Medicos 05.03.2011 329491 481 17. Krishna Chemist 05.03.2011 655493 410 18. New Delhi Medicos 08.03.2011 333350 89 Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 27 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:06:01 +0530 S. No. Name of the Chemist Date Receipt No. Amount in Rs.19. New Delhi Medicos 09.03.2011 333511 289 20. New Delhi Medicos 11.03.2011 336060 4 21. New Delhi Medicos 11.03.2011 335779 192
22. Dr. Lal Path Pvt. Ltd. 11.03.2011 11787 1170 23. New Delhi Medicos 12.03.2011 337784 410 24. New Delhi Medicos 12.03.2011 337799 192 25. New Delhi Medicos 13.03.2011 338352 192 26. New Delhi Medicos 15.03.2011 340780 100 27. New Delhi Medicos 15.03.2011 339909 104 28. New Delhi Medicos 16.03.2011 340799 513 29. New Delhi Medicos 16.03.2011 340999 142 30. New Delhi Medicos 16.03.2011 341726 30 31. New Delhi Medicos 17.03.2011 341980 57 32. New Delhi Medicos 17.03.2011 341931 26 33. New Delhi Medicos 18.03.2011 343050 160 34. New Delhi Medicos 19.03.2011 344182 385 35. New Delhi Medicos 20.03.2011 345235 191 36. New Delhi Medicos 21.03.2011 345775 568
37. Dr. Lal Path Pvt. Ltd. 21.03.2011 12816 2770 38. New Delhi Medicos 22.03.2011 347570 284 39. New Delhi Medicos 23.03.2011 347782 23 40. New Delhi Medicos 23.03.2011 347954 426
41. Norma D.N.D. Products 23.03.2011 144552 1700 Pvt. Ltd.42. New Delhi Medicos 24.03.2011 349963 142 43. New Delhi Medicos 24.03.2011 349268 284 44. Krishna Chemists 25.03.2011 458827 568 45. Krishna Chemists 26.05.2011 459014 65 46. New Delhi Medicos 27.03.2011 352585 131 47. New Delhi Medicos 28.03.2011 353060 410 48. New Delhi Medicos 01.04.2011 498 40
Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 28 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:06:11 +0530 S. No. Name of the Chemist Date Receipt No. Amount in Rs.
49. New Delhi Medicos 01.04.2011 513 60 50. New Delhi Medicos 01.04.2011 846 45 51. New Delhi Medicos 03.04.2011 2481 104 52. New Delhi Medicos 04.04.2011 3003 750 53. New Delhi Medicos 05.04.2011 4190 206 54. New Delhi Medicos 05.04.2011 5312 528 55. Raj Kamal Chemist 06.04.2011 1449 58 56. New Delhi Medicos 06.04.2011 6221 31 57. New Delhi Medicos 06.04.2011 6433 240 58. New Delhi Medicos 06.04.2011 6433 196 59. New Delhi Medicos 07.04.2011 7260 14460. Star Imaging & Path Lab 07.04.2011 260011 650 61. New Delhi Medicos 08.04.2011 8997 98
62. Star Imaging & Path Lab 08.04.2011 260008 1060 63. New Delhi Medicos 09.04.2011 9989 235 64. New Delhi Medicos 10.04.2011 10618 104
65. Star Imaging & Path Lab 11.04.2011 260009 1780 66. New Delhi Medicos 11.04.2011 10912 71 67. New Delhi Medicos 12.04.2011 12255 160 68. New Delhi Medicos 12.04.2011 12737 98 69. New Delhi Medicos 12.04.2011 12215 45 70. New Delhi Medicos 12.04.2011 12067 155 71. New Delhi Medicos 13.04.2011 13132 120 72. New Delhi Medicos 14.04.2011 14385 574 73. New Delhi Medicos 15.04.2011 15933 58 74. New Delhi Medicos 17.02.2011 17244 200 75. New Delhi Medicos 19.04.2011 19293 133 76. New Delhi Medicos 20.04.2011 21174 120 77. New Delhi Medicos 21.04.2011 22128 149 78. New Delhi Medicos 24.04.2011 24724 264
79. New Delhi Medicos 27.04.2011 28723 1459 Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 29 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:06:24 +0530 S. No. Name of the Chemist Date Receipt No. Amount in Rs.
80. New Delhi Medicos 29.04.2011 30731 1071 81. New Delhi Medicos 30.04.2011 32174 300 82. New Delhi Medicos 30.04.2011 32172 104 83. New Delhi Medicos 02.05.2011 34217 139 84. New Delhi Medicos 03.05.2011 34357 31 85. New Delhi Medicos 03.05.2011 35244 100 86. New Delhi Medicos 03.05.2011 35450 707 87. New Delhi Medicos 04.03.2011 36158 264
88. New Delhi Medicos 01.06.2011 66740 1099
89. New Delhi Medicos 01.06.2011 66736 1450
90. Dr. Ram Manohar Lohiya 04.06.2011 0033916/20 38 Hospital 11
91. New Delhi Medicos 04.06.2011 70016 1113 92. Care Medica 07.06.2011 SB2328 95 93. New Delhi Medicos 08.06.2011 74960 458
94. Capital Chemist 10.06.2011 17310 131.80 95. New Delhi Medicos 11.06.2011 78118 588
96. Physio Care 14.06.2011 11050 5000 97. Nath Brothers 15.06.2011 16884 260
98. Medicine House 15.06.2011 24787 458.12 99. New Delhi Medicos 17.04.2011 84440 520
100. Dr. Ram Manohar Lohiya 17.06.2011 2759 45000 Hospital 101. New Delhi Medicos 20.06.2011 87138 58 102. New Delhi Medicos 20.06.2011 87646 313
103. New Delhi Medicos 20.06.2011 87999 1420 104. New Delhi Medicos 20.06.2011 88005 70 105. New Delhi Medicos 22.06.2011 90358 50 106. New Delhi Medicos 22.06.2011 90357 192 107. New Delhi Medicos 29.06.2011 98097 237 108. New Delhi Medicos 02.07.2011 101210 71 Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 30 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:06:37 +0530 S. No. Name of the Chemist Date Receipt No. Amount in Rs.
109. New Delhi Medicos 03.07.2011 102138 104110. New Delhi Medicos 04.07.2011 103103 1145
111. New Delhi Medicos 04.07.2011 103101 1041
112. New Delhi Medicos 04.07.2011 103105 1450 113. New Delhi Medicos 05.07.2011 104643 136 114. Capital Chemist 12.07.2011 17411 65
115. Medicine House 15.07.2011 35076 687.18
116. Prateek Medicos 17.07.2011 67074 1105 117. New Delhi Medicos 18.07.2011 119912 822 118. Capital Chemists 23.07.2011 17446 60 119. United Pharmacy 23.07.2011 72041 100
120. New Delhi Medicos 03.08.2011 139075 1145
121. New Delhi Medicos 05.08.2011 141257 3578
122. New Delhi Medicos 16.08.2011 153540 1251
123. Capital Chemist 20.08.2011 17537 2355 124. New Delhi Medicos 21.08.2011 159779 50
125. Capital Chemist 31.08.2011 17566 4580 126. Capital Chemist 05.09.2011 17589 65
127. Capital Chemist 05.10.2011 17701 1145
128. New Delhi Medicos 17.09.2011 192862 2859
129. Physio Care 06.10.2011 11050 42500 130. New Delhi Medicos 10.10.2011 221921 284
131. Capital Chemist 21.10.2011 17740 6870
132. Physio Care 30.11.2011 11050 17500
133. Physio Care 20.12.2011 11050 8500
134. New Delhi Medicos 23.12.2011 307072 5542 135. New Delhi Medicos 23.12.2011 307078 325
136. New Delhi Medicos 28.01.2012 345662 2847
137. New Delhi Medicos 25.02.2012 377926 2847
138. Physio Care 27.03.2012 11050 40000
139. New Delhi Medicos 30.03.2012 420517 3832 Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 31 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:06:50 +0530 S. No. Name of the Chemist Date Receipt No. Amount in Rs.
140. New Delhi Medicos 28.04.2012 34012 2891
141. Physio Care 13.05.2012 11050 18000
142. Sakti Super Diagnostic 29.06.2012 7709 60
143. Physio Care 09.07.2012 11050 19500
144. New Delhi Medicos 13.07.2013 124440 3961 145. New Delhi Pathology 19.07.2012 68 570
146. Physio Care 31.08.2012 11050 20000
147. New Delhi Medicos 14.09.2012 204291 2370 148. Ayush Medicos 15.09.2012 798 191
149. Physio Care 20.10.2012 11050 20000 150. Ayush Medicos 24.09.2012 13499 147 151. Ayush Medicos 04.10.2012 14372 66
152. New Delhi Medicos 18.10.2012 247702 2008 153. Ayush Medicos 25.10.2012 16033 90
154. Ayush Medicos 24.10.2012 18342 1537
155. Physio Care 17.12.2012 11050 25000
156. Ayush Medicos 22.12.2012 20254 1537
157. Physio Care 25.01.2013 11050 16500
158. Ayush Medicos 27.01.2013 22636 1415 159. Ayush Medicos 31.01.2013 22978 680
160. Satyawati Drugs & DEPTL 04.02.2013 A93280 94 Store
161. Satyawati Drugs & DEPTL 21.02.2013 A98328 94 Store 162. Ayush Medicos 22.02.2013 24667 820 163. Ayush Medicos 02.03.2013 25189 214
164. Physio Care 04.03.2013 11050 12500 165. Ayush Medicos 13.03.2013 26073 681 166. Ayush Medicos 24.03.2013 26844 340 167. Ayush Medicos 29.03.2013 27142 900 168. Ayush Medicos 01.04.2013 26 340 Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 32 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:07:33 +0530 S. No. Name of the Chemist Date Receipt No. Amount in Rs.
169. Ayush Medicos 01.04.2013 27 347 170. Monga Medico 03.04.2013 79745 110171. Physio Care 04.04.2013 11050 11500 172. Capital Chemists 06.05.2013 19632 990
173. Satyawati Drugs & DEPL. 01.06.2013 D01751 188 Store
174. Physio Care 05.06.2013 11050 23500
175. Satyawati Drugs & DEPL. 15.07.2013 D04875 188 Store
176. Capital Chemist 17.07.2013 19823 1304.25 Total 4,30,900.35p (32) The respondents have not disputed the aforesaid bills nor they have lead any evidence to the contrary. Therefore, I hereby hold that the petitioner Sanjeev Sharma is entitled to the medical expenses to the tune of Rs.4,30,900/.
(33) Now coming to the Income of the injured Sanjeev Sharma, the case of the petitioner is that he was running a Photocopier Center cum Stationary Shop at 2E/13, Jhandewalan Extension, New Delhi and was earning Rs.24,000/ per month. In order to prove his case, the petitioner has placed on record the original Rent Deed dated 01.08.1993 which is Ex.PW3/4 and photocopy of Rent Deed dated 23.04.2008 which is Mark X. I have gone through the said Rent Deeds which only show that the petitioner Sanjeev Sharma was running a Photocopier Center cum Stationary Shop at the aforesaid address but the monthly income of the injured Sanjeev Sharma is not shown in any of these Rent Deeds. No Income Tax Returns have been placed on record showing Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 33 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:07:44 +0530 the income of the injured from the said shop nor there is anything on record to show that the injured has declared his income to any government authority. The documents on record reveals that the injured Sanjeev Sharma had studied upto Senior Secondary and is not a graduate hence, in the absence of any document showing the actual monthly income of the injured, I hold that the minimum wages existing at the relevant time on 24.02.2011 i.e. Rs.7,410/ applicable for the Matriculates and also to Skilled Worker (as the petitioner was running a photocopier shop), is taken as the income of the injured. (34) In so far as the Disability of the injured Sanjeev Sharma is concerned, it has been duly proved by Dr. Ajay Choudhary (PW1) that the injured Sanjeev Sharma is a case of Severe Head Injury with Severe hemiparesis and Dysarthria which constitute a permanent physical disability of 90% which is unlikely to improve. The Disability Certificate has been duly proved in accordance with law which certificate is Ex.PW1/A. The respondents have not disputed the above aspect of Disability of the injured nor any evidence in rebuttal has been lead by the respondents. I may note that Dr. Ajay Choudhary (PW1) has specifically proved that on account of the disability suffered by Sanjeev Sharma, he cannot perform even the daily pursuits of the life and is totally dependent upon his care giver for all his day to day requirement and activities. Therefore, the petitioner being unable to earn anything, I hold that the functional disability of the injured Sanjeev Sharma is considered to be One Hundred Percent (100%).
Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 34 of 43
Digitally signed by KAMINI LAU
KAMINI LAU Date: 2021.03.05 17:07:55
+0530
(35) As per the Aadhar Card of the injured Sanjeev Sharma, his date
of birth is 24.05.1962 and hence, as on the date of accident i.e. 24.02.2011 he yeas aged 48 years plus. Accordingly, in terms of the judgment of the Hon'ble Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 the multiplier applicable as per the age of the injured would be Thirteen (13). Therefore, the Loss of Income on account of Disability would be Rs.11,55,960/ (7410 x 12 x 13).
(36) In so far as the Special Diet expenses, Conveyance charges and Attendant charges are concerned, the petitioner has not placed on record any document showing any expenses incurred towards the same. (37) Accordingly, keeping in view the facts and circumstances, the material on record, and the settled principals 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 Medical Treatment 4,30,900/ Expenditure on Conveyance 50,000/ Expenditure on Special Diet 50,000/ Cost of Nursing Assistant 50,000/ Compensation for mental and physical shock 1,00,000/ Pain & Sufferings 50,000/
Loss of earning, inconvenience, hardships, 1,00,000/ disappointment, frustration, mental stress, dejectment and unhappiness in future life etc. Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 35 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:08:05 +0530 Loss of amenities or loss of expectation of life 1,00,000/ span on account of disability Loss of Income on account of Disability 7410 x 12 x 13 = 11,55,960/ Total 20,86,860/ Round Off: 20,86,900/ (38) Since, 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), it is held that claimant shall be entitled to interest @ 7% per annum from the date of filing of DAR i.e. 23.02.2013 till realization of the amount.
Disbursement:
(39) The Financial Statement of Smt. Kavita Sharma, wife of the petitioner was recorded according to which their monthly expenses are about Rs.15,000/ to Rs.20,0000/ apart from the medical expenses. (40) This being the background, keeping in view the financial statement of the petitioner and also keeping in view the medical condition and age of the injured, I hereby direct that on realization of the award amount, a sum of Rs.5,86,900/ plus entire interest amount be released to the petitioner and the balance amount of Rs.15,00,000/ (Rupees Fifteen Lacs only) shall be put in Sixty Fixed Deposits in his name in MACAD account in equal amount of Rs.25,000/ each for a period of 01 month to 60 months respectively, with cumulative Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 36 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:08:16 +0530 interest, in terms of the directions contained in FAO No. 842/2003 dated December 07, 2018. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank without the facility of cheque book and ATM card. It is clarified that the amount shall be released to him only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal.
However, the petitioner Sanjeev Sharma shall have the liberty to seek the release of Rs.5,86,900/ plus entire interest amount from the bank located within the jurisdiction of this Tribunal itself. (41) The above FDRs shall be prepared with the following conditions as enumerated by the Hon'ble Delhi High Court in FAO No. 842/2003 under the title Rajesh Tyagi & Ors. Vs. Jaivir Singh & Ors. decided on December 07, 2018:
(i) The bank shall not permit any joint name to be added in the saving account or fixed deposit accounts of the claimants i.e. saving bank accounts of the claimants shall be an individual saving bank account and not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimants.
(iii) The maturity amount of the FDRs be credited by the ECS in the saving bank account of the claimant Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 37 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:08:25 +0530 near the place of their residence.
(iv) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(v) The concerned bank shall not issue any cheque book and/or debit card to claimants. However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank.
(vi) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque books and/or debit card have been issued and shall not be issued without the permission of the Court and the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
(42) In compliance of the directions given by Hon'ble High court in FAO No. 842/2003 dated December 07, 2018, Summary of the Award in the prescribed FormatIV B is as under: SUMMARY OF AWARD:
1. Date of Accident: 24.02.2011
2. Name of the Injured: Sanjeev Sharma
3. Age of the Injured: 48 Years
4. Occupation of the Injured: Stationery Shop
5. Income of the Injured: Rs.7,410/ (minimum wages for matriculates)
6. Nature of Injury: Grievous Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 38 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:08:33 +0530
7. Medical Treatment taken by RML Hospital, Delhi the injured:
8. Period of Hospitalization: 24.02.2011 to 01.06.2011, 15.06.2011 to 01.07.2011, 01.10.2011 till 20.10.2011 and 15.05.2012 to 19.05.2012
9. Whether any permanent 90% Permanent Disability disability? If yes, give details:
10. COMPUTATION OF COMPENASATION Sr. Heads Awarded by the claims No. Tribunal
11. Pecuniary Loss:
(i) Expenditure on Treatment 4,30,900/ (ii) Expenditure on Conveyance 50,000/ (iii) Expenditure on Special Diet 50,000/ (iv) Cost of Nursing/ attendant 50,000/ (v) Loss of Income Nil (vi) Cost of artificial limb (if applicable) Nil (vii) Any other loss which may require any Nil
special treatment or aid to the injured for the rest of his life
12. Non Pecuniary Loss
(i) Compensation for mental and physical 1,00,000/ shock
(ii) Pain and Sufferings 50,000/
(iii) Loss of amenities of life Nil Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 39 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:08:43 +0530
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, hardships, 1,00,000/ disappointment, frustration, mental stress, dejectment and unhappiness in future life etc.
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and Permanent Disability nature of disability as permanent or 90% temporary
(ii) Loss of amenities or loss of expectation of 1,00,000/ life span on account of disability
(iii) Percentage of loss of earning capacity in Functional Disability relation to disability 100%
(iv) Loss of future income - (income x % 7410 x 12 x 13 = earning capacity x Multiplier) 11,55,960/
14. TOTAL COMPENSATION 20,86,860/ Round Off:20,86,900/
15. INTEREST AWARDED 7%
16. Interest amount upto the date of award 11,73,464/ (8 years & 12 days)
17. Total amount including interest 32,60,364/
18. Award amount released As mentioned in para no.40
19. Award amount kept in FDRs As mentioned in para no.40
20. Mode of disbursement of the award As mentioned in para amount of the claimant(s) no.40
21. Next date for compliance of the award 09.04.2021 Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 40 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:08:51 +0530 Liability:
(43) In so far as the liability to pay the award amount is concerned, it is an admitted case of the respondents that the offending vehicle was not insured with any Insurance Company. The respondent no.1 Surjeet Singh is the driver cum owner in possession of the offending vehicle whereas the respondent no.2 Azizuddin was the registered owner of the offending vehicle i.e. Motorcycle bearing No. DL9SQ7582 which he had sold to Salim Khan S/o Abdul Khan from whom the respondent no.1 Surjeet Singh had purchased the same. (44) The liability of respondent no.2 Azizuddin to pay the award amount is a legal aspect which is required to be considered but nobody has raised this issue before the Court. I may observe that initially the respondent no.2 Azizuddin had been appearing in person or through his counsel but later he stopped appearing and vide order dated 31.10.2018 he was proceeded exparte. In so far as the respondent no.1 Surjeet Singh is concerned, he has not disputed the fact that the registered owner Azizuddin had sold the motorcycle bearing No. DL9SQ7582 to Salim Khan S/o Abdul Khan who further sold the same to the respondent no.1 Surjeet Singh and given the circumstances, at the worse the liability of the respondent no.2 i.e. Azizuddin would be relating to non information to the concerned RTO regarding transfer of his motorcycle and he can be made liable for penalty qua the State but not for making him jointly liable to pay the compensation. Accordingly, the respondent no.1 Surjeet Singh is held liable to pay compensation to the petitioner.
Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 41 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:08:59 +0530 (45) Issue No.2 is accordingly decided in favour of the petitioner and against the respondent no.1.
RELIEF:
(46) The respondent no.1 Surjeet Singh is directed to deposit a sum of Rs.20,86,900/ with interest @ 9% per annum from the date of filing of DAR i.e. 23.02.2013 till realization of the amount with the Civil Nazir of this Tribunal within 30 days under intimation to the petitioner failing which insurance company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days. (47) The respondent no.1 Surjeet Singh is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioners/ claimants and complete detail in respect of calculation of interest etc. within 30 days from today.
(48) A copy of this judgment be sent to the respondent no.1 Surjeet Singh for compliance within the time granted. The respondent no.1 is directed to give intimation of deposit of the compensation amount to the claimant and shall file a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount within 15 days of the deposit with the interest upto date and intimation of deposit to the claimant with a copy to his counsel Sh. Atul Rathi Advocate, Chamber No. 206, Civil wing, Tis Hazari Courts, Delhi, Mobile No. 9810540219.
Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 42 of 43 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:09:06 +0530 (49) Civil Nazir is directed to place a report on record on 09.04.2021 in the event of nonreceipt/deposit of the compensation amount within the time granted.
(50) In terms of clause 31 & 32 of the judgment titled Rajesh Tyagi & others Vs. Jaibir Singh & Ors. decided by Hon'ble High Court on December 12, 2014, copy of this award be sent to the concerned court of Ld. Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
(51) File be consigned to Record Room. Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.05 17:09:15 +0530 Announced in the open court (Dr. KAMINI LAU) Dated: 05.03.2021 PO, MACT01 (Central), Tis Hazari Courts, Delhi Sanjeev Sharma Vs. Surjeet & Anr., MACT No. 356286/2016, Award dated 05.03.2021 Page No. 43 of 43