Delhi District Court
Shri Inder Pal Singh S/O Shri Jagdish ... vs M/S New India Assurance Company Limited on 25 February, 2013
1
IN THE COURT OF MS. VINEETA GOYAL: PO-MACT (SOUTH-01)
SAKET COURTS, NEW DELHI
INJURY CASE
1st Suit
Suit no. : 901/09 (Old Suit No. 02/07)
Unique Case ID no. : 02403C0004792002
IN THE MATTER OF :-
Shri Inder Pal Singh S/o Shri Jagdish Singh,
R/o House No. G-172, SGM Nagar, NIT Faridabad,
K C Badkal Road, Faridabad, Haryana ------------Petitioner
Versus
1. M/s New India Assurance Company Limited,
Chandigarh, DO III, SCO-37-38,
Sec-17-C, Chandigarh 160017
Through RO II, Jeevan Raksha Building,
Asaf Ali Road, New Delhi-02
-----------Insurer
2. Shri Harvinder Singh S/o Shri Gubax Singh,
R/o House No. 2039, B-2/10, Saini Mohalla,
Pinjore, District Panchkula, Haryana
-----------Owner
3. Shri Bant Khan S/o Saddu Khan,
R/o Village Bhagu Majara, PS Kharad, District Ropad,
Punjab. -----------Driver
Compensation claimed : Rs. 15,00,000/-
Date of first institution : 02.01.2007
Suit no. 901/09 and 902/09 Page no. 1/13
2
Date of institution
in the present court : 18.12.2009
Date of arguments : 14.02.2013
Date of orders : 25.02.2013
Appearance:- Sh. Neeraj P. Singh, counsel for the petitioner.
None for respondent Nos. 2 and 3.
Ms. Umesh Kaushal, counsel for respondent No. 1.
2nd Suit
Suit no. : 902/09 (Old Suit No. 01/07)
Unique Case ID no. : 02403C0004762007
IN THE MATTER OF :-
Master Parmeet Singh S/o Shri Inder Pal Singh,
R/o House No. G-172, SGM Nagar, NIT Faridabad,
K C Badkal Road, Faridabad, Haryana (Petitioner being minor represented through his father/natural guardian i.e. Shri Inder Pal Singh) -------------Petitioner Versus
1. M/s New India Assurance Company Limited, Chandigarh, DO III, SCO-37-38, Sec-17-C, Chandigarh 160017 Through RO II, Jeevan Raksha Building, Asaf Ali Road, New Delhi-02 -----------Insurer
2. Shri Harvinder Singh S/o Shri Gubax Singh, R/o House No. 2039, B-2/10, Saini Mohalla, Pinjore, District Panchkula, Haryana -----------Owner
3. Shri Bant Khan S/o Saddu Khan, R/o Village Bhagu Majara, PS Kharad, District Ropad, Punjab. -----------Driver Suit no. 901/09 and 902/09 Page no. 2/13 3 Compensation claimed : Rs. 15,00,000/-
Date of first institution : 02.01.2007
Date of institution
in the present court : 18.12.2009
Date of arguments : 14.02.2013
Date of orders : 25.02.2013
Appearance:- Sh. Neeraj P. Singh, counsel for the petitioner.
None for respondent Nos. 2 and 3.
Ms. Umesh Kaushal, counsel for respondent No. 1.
JUDGMENT/AWARD
1. This award shall dispose off aforesaid claim petitions filed by the respective petitioners namely Sh. Inder Pal Singh (claimant in petition No. 901/09) and Master Parmeet through his father/natural guardian Shri Inder Pal Singh (claimant in petition No. 902/09) for claiming compensation. The above mentioned petitions are emerging out of the same accident and therefore they are dealt by common judgment.
2. The short facts of the case are as follows:
On 02.10.2006 at about 10.45 PM, the claimants were going on a motorcycle toward Faridabad and when they reached near T - Point, Badarpur, MB Road, the claimant namely Inderjeet Singh who was driving the aforesaid motorcycle stopped his bike for red light and when the signal turned green, he started slowly driving the bike towards Faridabad, at that point a Truck bearing No. HR-68-2511 being driven by its driver in rash and negligent manner came and hit the motorcycle as a result of which occupants of motorcycle fell down and sustained multiple grievous injuries all Suit no. 901/09 and 902/09 Page no. 3/13 4 over the body. The victims were immediately taken to hospital for treatment. The accident had happened only due to rash and negligent driving of the truck.
3. The petitioners moved respective claim petitions under the Motor Vehicles Act as amended upto date after arraying insurance company, registered owner and driver as respondents.
4. In response to notices of petition issued to the respondents, respondents appeared. Written statement was filed by Insurance company inter-alia their liability to pay the compensation to the claimants, however, admitted that vehicle No. HR-68-2511-truck was insured with it vide policy No. 350300/31/05/01/00007324 w.e.f. 14.01.2006 to 13.01.2007 in the name of Harvinder Singh, respondent No. 2. Joint written statement was filed by the driver and owner inter-alia alleging that accident was not caused due to negligence of respondent No. 3, driver of the truck, in fact, Sh. Inder Pal Singh who was driving the motorcycle at relevant time and place was responsible for accident. It was further alleged that the vehicle of answering respondents was fully insured with R-1 and if there is any liability to pay the alleged compensation amount to the respective claimants, it is the sole responsibility to the respondent No.1, M/s New India Assurance Company Ltd.
5. The following issues were framed in the respective petitions as per details below:
Petition no. 901/09Issues:
1. Whether the petitioner suffered injuries in an accident which took place on 02.10.2006 at about 10.45 PM involving Truck bearing No. HR-68-2511 due to rash and negligent driving of respondent No. 3, owned by respondent No. 2 and insured with respondent No. 1? OPP Suit no. 901/09 and 902/09 Page no. 4/13 5
2. Whether petitioner is entitled to compensation? If so, to what amount and against which of the respondents.?
3. Relief Petition no. 902/09 ISSUES
1. Whether petitioner suffered injuries in an accident which took place on 02.10.2006 at about 10.45 PM involving Truck bearing No. HR-68-2511 due to rash and negligent driving of respondent No. 3, owned by respondent No. 2 and insured with respondent No. 1? OPP
2. Whether petitioner is entitled to compensation? If so, to what amount and against which of the respondents.?
3. Relief
6. In support of their respective claims number of documents such as medical record, medical bills, salary certificate of Sh. Inder Pal Singh, disability certificate of Master Parmeet Singh, criminal record, birth certificate of Master Parmeet and driving licence of Sh. Inder Pal Singh etc. were placed on record by petitioners.
7. The petitioners have also examined Sh. Kuldip Singh, Supervisor from Billing Department, Indraprastha Apollo Hospital, Sarita Vihar for proving MLC and Discharge Summary of Sh. Inder Pal Singh and Mater Parmeet Singh.
8. Sh. Rakesh Talwar working as Accountant at M/s Harson and Associates from Faridabad, Haryana was examined as PW3. This witness produced salary record of Sh. Inder Pal Singh who was working as Assistant Manager (Marketing) in the aforesaid concern and stated that Sh. Inder Pal Singh was getting salary of Rs. 15,000/- per month and from 03.10.2006 to 31.03.2007 he was on leave due to Suit no. 901/09 and 902/09 Page no. 5/13 6 accident and injuries and did not get any salary for aforesaid period.
9. No evidence was led in defence by the respondents.
10. I have heard arguments advanced by ld. counsels for parties and gone through the case file. My issue wise findings are as under. Issue No. 1 in the two petitions:
11. The burden of proof of this issue was upon the petitioners. In order to prove this fact, the injured/claimant, Sh. Inder Pal Singh while stepping into the witness box as PW1 by virtue of his affidavit stated that the alleged accident took place due to rash and negligent driving of driver of offending vehicle (Truck). He make statement inconsonance with the averments made in petition and attributed rash and negligence on the part of erring driver/ respondent No. 3. He was subjected to cross examination by insurance company but nothing could be brought on record to impeach his testimony. Moreover, driver and owner of the truck (vehicle in question) did not appear to controvert the deposition of aforesaid witness or to narrate their side of version, for the reasons best known to them and as such adverse inference can be drawn against them. From un-rebutted oral and documentary evidence, it is established from record that petitioners sustained injuries on account of negligent driving of respondent No.1. Hence, issue no.1 is decided in favour of the respective petitioners.
Issue no. 2
12. Since issue No.1 has been decided in favour of the petitioners, so they are entitled to compensation and so far as this issue is concerned, it may be segregated in two parts. The claim petition for ascertaining compensation is being dealt here under separately owing to the different injuries sustained and evidence adduced in Suit no. 901/09 and 902/09 Page no. 6/13 7 each of the claim petition titled above.
Inder Pal Singh Vs M/s New India Ass. Co. Ltd (Petition No. 901/09)
13. The medical record suggest that the injured, Sh. Inder Pal Singh immediately after accident was removed to Indraprastha Apollo Hospital where his medico legal report was drawn and injuries were stated to be grievous in nature. The discharge summary of the same hospital shows that petitioner remained hospitalized from 03.10.2006 till 01.11.2006. The injuries were diagnosed as RTA with polytrauma with fracture pelvis with crush avulsion injury, left upper thigh and lower abdomen and during his hospitalization multiple debridement and dressing was done and on 23.10.2006 extensive debridement with local flaps and repair over vacuum was done. At the time of discharge, his condition was satisfactory and he was advised bed rest, exercise as instructed and daily dressing of wounds. There is also evidence of post hospitalization treatment with the same hospital in the form of prescription bills.
14. The petitioner has filed medical bills of Rs. 5,19,278/-. The respondents were provided with an opportunity to point out any discrepancy in the amount or otherwise admissibility of the claim of the petitioner being pecuniary loss suffered on account of above mentioned accident. No cogent challenge to the claim of the petitioner was preferred by the respondents. The petitioner is hereby awarded medical bills of amounting of Rs.5,19,278/- towards medical expenses incurred during treatment.
15. The petitioner claimed that at the time of accident he was working as an Assistant Marketing Manager with M/s Harsons & Associates with the monthly salary of Rs.15,000/- per month and because of injuries, he could not work from Suit no. 901/09 and 902/09 Page no. 7/13 8 03.10.2006 to 30.03.2007. In this regard, the petitioner has got examined Sh. Rakesh Talwar, Accountant, M/s Harsons & Associates as PW3 who has deposed that the victim was on leave from 03.10.2006 to 31.03.2007 and no salary was given for the aforesaid period. There is no challenge to the testimony of the aforesaid witness and believable. Keeping in view, the nature of injuries sustained and treatment taken by victim periodically with abandon caution it can be presumed that petitioner must be out of his job for aforesaid period i.e. 06 months. The loss of income, therefore, comes to Rs.90,000/- (Rs.15,000 X 06 months) and petitioner is awarded accordingly.
16. As for pain and suffering, due to the nature of injury being grievous the petitioner must have been incapacitated for the considerable period in doing his regular work in the life and she is entitled for compensation on account of physical pain and mental sufferings which was felt by him. So, the petitioner is entitled for compensation in sum of Rs.25,000/- towards pain and suffering.
17. The petitioner is also awarded Rs.25,000/- on account of special diet and conveyance charges (inclusive of taxi bills of Rs.4,100/-). In total, petitioner is awarded compensation of Rs. 6,59,278/-.
Relief
18. In view of discussion above the petitioner is entitled to total compensation of Rs. 6,59,278/- (inclusive of interim award if any) with interest @ 7.5% per annum from the date of filing of petition i.e. 02.01.2007 till its realization. Master Parmeet Vs M/s New India Ass. Co. Ltd (Petition No. 902/09)
19. The victim namely Master Parmeet claimed to be aged about 03 Yrs and was Suit no. 901/09 and 902/09 Page no. 8/13 9 hale and hearty prior the date of accident and due to accident, he suffered grievous injuries and was immediately removed to Indraprastha Apollo Hospital where he was treated for injuries sustained in accident. It is a case of the claimant through natural guardian that he has spent reasonable amount towards treatment of injuries, conveyance, nourishment, food and attendant charges including medical expenses and other incidental expenses for which he needs to be compensated.
20. Admittedly, due to the injuries sustained in accident, the minor child, Master Parmeet suffered grievous injuries. Immediately after the accident he was taken to Indraprastha Apollo Hospital and the injuries were diagnosed as RTA with crush injury left foot with compound fracture left tibia and fibula with burns left thigh. The discharge summary of aforesaid hospital shows hospitalization from 03.10.2006 to 01.11.2006 and during hospitalization external fixation of left leg was done on 03.10.2006 and later on readjustment of external fixation was done on 11.10.2006. Further on 21.10.2006 debridement and grafting of raw area over the left foot, leg and thigh was done by plastic surgeon. At the time of discharge, the victim was prescribed anti-biotics medicines, food supplements etc. There is also evidence of post operative treatment with the same hospital intermittently for more than two years. It is undisputed fact that the father of victim must have spent some amount towards medical expenses, special diet, attendant charges, conveyance and the victim must have undergone lot of pain and sufferings. The doctor has opined that victim namely Master Parmeet Singh has sustained 40% permanent impairment in relation to his left lower limb with the remarks that this condition is progressive, likely to improve and reassessment is recommenced after a period of 05 Yrs. The claimant is a minor child who has sustained major grievous injuries which ultimately Suit no. 901/09 and 902/09 Page no. 9/13 10 led into disability at this tender age. The victim is not an earning member of the family and his income has to be taken as per table given in Second Schedule of the Act. Para No. 06 of the Act provides for notional income for those who has no income prior to accident at Rs.15,000/- per annum. It is undisputed fact that claimant at such a young age has suffered disability of left lower limb and it cannot be lost sight that in future the claimant's avocation will be affected as he will not be able to chose the profession he wishes. He has to chose a profession suitable to his disabled physique. His normal life and responsibility towards family is affected. The entire future of the claimant is now crippled. In the terms of percentage, the disability certificate mentions 40% physical impairment for left lower limb with reassessment after a period of 05 Yrs, looking into duration of treatment and disability there is no hesitation in adopting 40% for the loss of income for assessing the loss of income in future to the victim. The loss of future earning capacity on account of permanent disability comes out to be Rs.1,08,000/- (Rs.15,000/- X 40/100 X 18) and awarded accordingly.
21. The expenses on medical treatment being Rs. 5,51,196/- is supported by documentary evidence in the form of final bill and prescriptions issued by doctors. The respondents were called upon to raise objections over the bills/claim made by the claimants. Despite opportunity given, the respondents failed to file the objections regarding aforesaid bills. In the absence of any objections, the petitioner is awarded Rs. 5,51,196/- towards medical expenses.
22. Besides the aforesaid amounts, having regard to the nature of injuries sustained, age of victim, duration of treatment (hospitalization of 29 days), follow up treatment, disability and dis-figuration, the claimant is awarded Rs. 1,00,000/-
Suit no. 901/09 and 902/09 Page no. 10/13 11 towards pain and sufferings, Rs.50,000/- towards loss of amenities, discomfort and unhappiness and Rs.50,000/- towards loss of marital status.
23. The petitioner was treated as indoor and outdoor patient in hospital and have been forced to travel for his treatment. The petitioner has suffered a major injury and disability and considering this fact, the petitioner is hereby granted as sum of Rs. 1,00,000/- as conveyance (including taxi bills of Rs.92,550/-) and other incidental charges and another sum of Rs. 40,000/- towards special diet. Relief
24. In view of discussion above the petitioner is entitled to total compensation of Rs. 9,99,196/- (inclusive of interim award if any) with interest @ 7.5% per annum from the date of filing of petition i.e. 02.01.2007 till its realization. LIABILITY:-
25. All the claim petitions undisputed accident has occurred due to negligence of the offending driver and thus vicariously liability is fastened upon registered owner. Since however at the time of accident the M/s New India Assurance Company Limited is insurer, therefore, M/s New India Assurance Company Limited is liable to indemnify. This aforesaid claim shall be paid by insurance company.
26. M/s New India Assurance Company Limited is directed to directly deposit the cheques with SBI Bank, Saket Court branch within 30 days from today and in case of default, penal interest @ 12 % per annum shall be given from the date of filing of delay till deposit of the awarded amount in following manners:-
Inder Pal Singh Vs M/s New India Ass. Co. Ltd (Petition No. 901/09) On deposit of award amount, 50 % of award in respect of petitioner shall be credited in his saving bank account and rest of the amount shall be invested as Suit no. 901/09 and 902/09 Page no. 11/13 12 under in the Fixed Deposit Account:-
Fixed Deposit in respect of 10 % amount be deposited for petitioner for one year, Fixed Deposit in respect of 10 % amount be deposited for petitioner for two years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for three years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for four years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for five years, Master Parmeet Vs M/s New India Ass. Co. Ltd (Petition No. 902/09) On deposit of entire award amount, the same shall be kept in FDR till attainment of his majority.
27. Interest on all the aforesaid fixed deposits be credited automatically monthly in the saving bank account of the respective petitioners.
28. Withdrawal from the aforesaid saving bank account shall be permitted to claimants after due verification and the Bank shall issue photo identity card to claimants to facilitate identity.
29. No cheque book be issued to claimants without the permission of this court.
30. The original fixed deposit account book shall be retained by the Bank in the safe custody. However, the original pass book shall be given to claimants along with the photocopy of the FD account book/receipt.
31. On maturity, the FDR amount shall be directly credited in the saving bank account of the petitioners. No loan, advance or withdrawal shall be allowed on the said fixed deposit account without the permission of this court. Half yearly statement of account be filed by the Bank in this court.
32. On the request of claimants the Bank shall transfer the Saving Account to any other branch of SBI, Saket Court according to their convenience.
Suit no. 901/09 and 902/09 Page no. 12/13 13
33. Claimants shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account in bank.
34. Let for the identification of the petitioners, the first copy of the petition wherein photograph of the petitioners are affixed, be annexed with the award.
35. Award is passed accordingly and copy of this award be also placed in Suit No. 902/09. File be consigned to record room only after compliance by insurance company by depositing the award in the manner as stated above. Be awaited for compliance for 25.04.2013.
Announced in the open court
on 25.02.2013 VINEETA GOYAL
PO : MACT (SOUTH-01)
25.02.2013
Suit no. 901/09 and 902/09 Page no. 13/13