Delhi District Court
Sh. Omkar Singh vs Sh. Virender Singh on 8 August, 2018
MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 4851/16 (Old MACP No. 99A/11)
Sh. Omkar Singh,
S/o Sh. Ganga Singh,
R/o D6/51, Sector - 6,
Rohini, Delhi.
..........Petitioner
VERSUS
1. Sh. Virender Singh,
S/o Sh. Chand Ram,
R/o. G21/H/54, Sector7,
Rohini, Delhi (Driver)
2. Sh. Dharmender Dagar,
S/o Sh. Saheb Singh,
R/o H.No. 30/1, Panna Mohalla,
Mangol Pur Kalan, Delhi (Registered Owner)
3. The Bharti Axa General Insurance Company Ltd.
2Nd Floor, Big Jose Tower,
A8, Netaji Subhash Place,
Delhi (Insurer)
............Respondents
Date of Institution : 24.08.2011 Date of Arguments : 24.07.2018 Date of Award : 08.08.2018 APPEARANCES: Sh. R.K. Jain, Adv for petitioner.
None for respondents no. 1 & 2.
Sh. Vikas Shokeen, Adv for respondent no. 3.
Omkar Singh Vs. Virender Singh & Ors. Page 1 of 22MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner has sought compensation to the tune of Rs. 50,00,000/ with interest @ 12% per annum from the date of filing of petition till the date of realization, for the injuries sustained by him in Motor Vehicular Accident which occurred on 22.05.2011 at about 3:45 AM at G.T.K. Road leading towards Sonepat, near Khampur Village, Delhi, involving Tata Tempo bearing registration no. DL1LK7253 (alleged offending vehicle) being driven by respondent no. 1 in rash and negligent manner.
2. It is averred in the claim petition that on 22.05.2011, the petitioner hired Tata Tempo No. DL1LK7253 and loaded the cartons of milk polybags in the said tempo, which were to be supplied at Sonepat. He was travelling alongwith the aforesaid goods in said Tata Tempo and was proceeding towards Kundli, Sonepat from Rohini. It is further averred that the respondent no. 1 was driving the aforesaid tempo at very high speed and in rash and negligent manner, without observing proper look out and without following the rules of the traffic. He had requested the respondent no. 1 to drive the tempo at normal speed with due care and caution but he did not take care of his advise. At about 3:45 am, when they reached at G.T.K Road leading from Delhi towards Sonepat, near Khampur Village, Delhi, the respondent no.1 hit against Canter which was parked on the extreme left hand side of the road with proper blinking lights ON with great force. As a result thereof, he sustained grievous injuries all over his body. He was removed to SRHC Hospital, Narela, Delhi, where he was medically examined. It is further averred that the petitioner was doing the job of supplying milk polybags and was earning Rs. 8,500/ per month at the time of accident. The said vehicle i.e. Tempo was found to be owned by respondent no. 2 and it was insured with Bharti Axa General Insurance Company Ltd /respondent no. 3 during the period in question.
Omkar Singh Vs. Virender Singh & Ors. Page 2 of 22MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018
3. It may be noted here that the police had also filed Detailed Accident Report (hereinafter called DAR) on 24.08.2011 corresponding to the investigation carried out in FIR No. 175/11 U/s 279/337 IPC registered at PS. Alipur with regard to the accident in question. Same was ordered to be merged with the claim petition vide order dated 11.05.2012.
4. The respondents no. 1 & 2 i.e. driver and registered owner although put their appearance in the Court on 24.08.2011 when DAR in the present case was filed, however, they failed to file their WS despite grant of sufficient opportunities. Thereafter, they stopped appearing before the Court and were proceeded against exparte vide order dated 28.03.12 passed by my Ld. Predecessor.
5. In its WS/reply, the respondent no. 3/insurance company has raised statutory defence as provided in Section 149(2) M.V. Act. On merits, the averments made in the claim petition have been denied for want of knowledge. However, it has been admitted that vehicle no. DL1LK7253 was insured with it, vide policy no. I0286319 w.e.f 03.06.2010 to 02.06.2011. It has prayed for dismissal of the claim petition.
6. From pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 11.05.2012:
1. Whether Sh. Onkar Singh s/o Sh. Ganga Singh suffered injuries due to road accident on 22.05.2011 at 3:45 am, on G.T.K. Road, near Khampur Village, Delhi towards sonepat, within the jurisdiction of PS. Alipur due to rash and negligent driving of vehicle No. DL1LK7253 being driven by respondent no. 1?OPP.
2. Whether the petitioner is entitled to compensation, if so, to what an extent and from which of the respondents?OPP.
3. Relief.
Omkar Singh Vs. Virender Singh & Ors. Page 3 of 22MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018
7. In support of his claim, the petitioner has examined six witnesses i.e. himself as PW1, PW2 Sh. Gaurav Malhotra, Record Technician, Sir Ganga Ram Hospital, PW3 Sh. Rajneesh Kumar, Record Assistant, City Hospital, PW4 Sh. D.K. Chhabra, Record Clerk, Jaipur Golden Hospital, Rohini, PW5 Dr. Manoj Mittal, Mittal Nursing Home & Ilizarov Centre, Lekhraj Nagar and PW6 Dr. D.N. Pandey, Head, Neuro Surgery Department, LNJP Hospital, Delhi and closed PE on 25.08.2017 through his counsel. On the other hand, no evidence was adduced by either of the respondents. Respondent no. 3/insurance company closed its RE on 24.10.2017 through its counsel.
8. I have already heard the arguments addressed by ld counsels for the parties. I have also gone through the record. Both the sides were directed to submit their respective submissions in Form IV B, vide order dated 24.07.18 but they have not submitted the same on record till date. My findings on the issues are as under: ISSUE NO. 1.
9. For the purpose of this issue, the testimony of PW1 Sh. Omkar Singh(injured himself) is relevant. In his evidence by way of affidavit (Ex. PW1/A), he has deposed on the lines of averments made in the claim petition. He deposed that on 22.05.2011, he had hired Tata Tempo No. DL1LK7253 and had loaded therein the cartons of milk polybags, which were to be supplied at Sonepat. He was travelling alongwith the aforesaid goods in said Tata Tempo and was proceeding towards Kundli, Sonepat from Rohini. He further deposed that the respondent no. 1 was driving the aforesaid tempo at very high speed and in rash and negligent manner, without observing proper look out and without following the rules of the traffic. He had requested the respondent no. 1 to drive the tempo at normal speed and with due care and caution but he did not take care of his advise. At about 3:45 am, when they reached at G.T.K Road leading from Delhi towards Sonepat, near Khampur Village, Delhi, the respondent no.1 hit against Omkar Singh Vs. Virender Singh & Ors. Page 4 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 Canter which was parked on the extreme left hand side of the road with proper blinking lights ON with great force. As a result thereof, he sustained grievous injuries all over his body. He was removed to SRHC Hospital, Narela, Delhi, where he was medically examined. He has relied upon the following documents: S.No. Description of documents Remarks
1. Original discharge slips and OPD Ex. PW1/1(colly) cards
2. Medical bills and receipts Ex. PW1/2(colly)
3. Copy of estimate for future Ex. PW1/3 treatment
4. Copy of Matriculation Certificate Ex. PW1/4
5. Photographs Ex. PW1/5(colly)
6. Treatment paper and two bills Ex. PW1/6(colly)
10. During his cross examination on behalf of respondent no. 3, he deposed that he himself had hired the offending Tata Tempo bearing no. DL1LK7253. However, he had not filed any proof in this regard. He denied the suggestion that he had not hired the abovesaid vehicle. He deposed that he had not obtained duplicate copy of receipt for hiring the aforesaid vehicle. He denied the suggestion that the vehicle was not hired by him as such question of obtaining of receipt of payment did not arise. He further deposed that the abovesaid vehicle was not stopped in between the place of accident and place of hire except at the Red Light. He had not alighted from the said vehicle when it stopped at the Red Light. He volunteered that driver namely Sh. Virender Singh was driving the offending vehicle rashly and negligently and whenever he warned him to drive the offending vehicle slowly, he reduced the speed and again drove the same at very high speed and in rash and negligent manner. He could not alight from the offending vehicle as it was night time and he was carrying polybags. He denied the suggestion that he was sitting in the aforesaid vehicle as gratuitous passenger. He further denied the suggestion that the accident took place due to Canter. He also denied the Omkar Singh Vs. Virender Singh & Ors. Page 5 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 suggestion that there was no fault of driver Sh. Virender Singh of Tempo no. DL1LK7253 in causing the accident. Respondents no. 1 & 2 did not cross examine this witness, both being already exparte.
11. It is evident from the testimony of PW1 that the respondents, more particularly the insurance company/R3 could not impeach his testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of crossexamination. Even otherwise, PW1 himself is the injured having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against respondent no.1. Moreover, FIR No. 175/11(supra)(which is part of criminal case record) is also shown to have been registered on the statement of PW1 Sh. Omkar Singh. The contents of said FIR would show that the complainant Omkar Singh (injured before this Tribunal) has disclosed therein the same sequence of facts leading to the accident, as deposed by him during the course of inquiry. Thus, there is no reason to disbelieve the testimony of this witness made on oath.
12. It is pertinent to note that the respondent no.1/driver of aforesaid Tempo, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he preferred not to enter into the witness box and to stay away from the proceedings during the course of inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of Tempo no. DL1LK7253 by him.
13. Moreover, it is an undisputed fact that FIR no. 175/11 (supra) was registered at PS. Alipur with regard to accident in question. Copy of said FIR as also the copy of charge sheet arising out of said FIR(which are part of criminal case record), would show that FIR was registered on 22.05.11 i.e. on the date of accident itself. Thus, FIR is shown to have been registered Omkar Singh Vs. Virender Singh & Ors. Page 6 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of Tempo bearing registration no. DL1LK7253 at the instance of petitioner herein. Not only this, the respondent no. 1 namely Virender Singh (accused in State case) has been charge sheeted for offences punishable U/s 279/338 IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending Tempo bearing registration no. DL1LK7253 by him. Same would also point out towards rash and negligent driving of aforesaid vehicle by respondent no. 1.
14. Apart from above, copy of MLC (which is part of criminal case record) of injured prepared at SRHC Hospital, Narela, Delhi, shows that he had been removed to said hospital on 22.05.2011 at 4.55 PM with alleged history of RTA. On his local examination, he was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.
15. Furthermore, copy of mechanical inspection report dated 22.05.2011 (which is part of criminal case record) of Tata Tempo no. DL1LK 7253, would show that there were fresh damages i.e. its front body/driver cabin was damaged from left side; its cabin frame was damaged; its left side headlight was damaged; its left side door window was damaged; its front grill was damaged; its front windscreen glass was broken; its radiator was damaged; its dashboard and steering bracket were bended; its left side mirror was damaged and its front side extra fitted body safety guard was damaged. Said report, which has gone unchallenged and unrebutted from the side of respondents, also corroborates the ocular testimony of PW1 Sh. Omkar Singh to the aforesaid extent. The severe nature of damage caused to this vehicle , Omkar Singh Vs. Virender Singh & Ors. Page 7 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 would speak for itself about the high speed at which aforesaid Tempo would have been driven by its driver at the time of accident. Moreover, the said vehicle is shown to have been seized from the place of accident. This fact gets strengthened from the copy of seizure memo dated 22.05.11 (date of accident also being 22.05.11)(which is part of criminal case record).
16. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of pre ponderence of probabilities that he had sustained grievous injuries in road accident which took place on 22.05.2011 at about 3:45 AM at G.T.K. Road leading towards Sonepat, near Khampur Village, Delhi, due to rash and negligent driving of Tempo bearing no. DL1LK7253 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 2.
17. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
MEDICAL EXPENSES
18. PW1 Sh. Omkar Singhi.e. injured himself, has deposed in his evidence by way of affidavit(Ex. PW1/A) that after the accident, he was taken to SRHC Hospital, Narela, Delhi, where he was medically examined and on the same day i.e. on 22.05.2011, he was shifted to Jaipur Golden Hosptial, wherefrom he was discharged on 01.06.2011. He further deposed that he had sustained grievous injuries i.e. acute compartment syndrome right thigh, fracture mid shaft femur right with distal neurovascular deficit and communited fracture S/C femur left, apart from other injuries. He also deposed that during Omkar Singh Vs. Virender Singh & Ors. Page 8 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 the period of his hospitalization in Jaipur Golden Hospital, his right femur bone was operated upon and interlocking nail was inserted in it. Split skin grafting was also applied on raw area of his right thigh. Fasciotomy of his right thigh was also done. He further deposed that on 14.06.11, he was again admitted in Jaipur Golden Hospital and he was discharged on 22.06.11 and on the same day i.e. on 22.06.11, he was again admitted in Jaipur Golden Hospital and was discharged on 28.06.11. He further deposed that blood Transfusion was done and treatment of pus discharging from wound of his right thigh was also done. Fasciotomy of compartment syndrome of right thigh was also done. On 01.07.2011, he was again admitted in City Hospital, wherefrom he was discharged on 15.07.11. On 26.07.11, he was again admitted in City Hospital and was discharged on 29.07.11. During the period of his admission at above mentioned hospital, treatment of bleeding from his right thigh was done and blood clots were evacuated from the wound present in his right thigh. His right SFA angiography was done which revealed large pseudoaneuyrm for which endoluminal bypass was done on 27.07.11. On 29.07.11, secondary closure of the wound was done. On 30.07.11, he was again admitted in City Hospital and was discharged on 05.08.11. On 23.11.2011, he was again admitted in Mittal Nursing Hospital and was discharged on 07.12.2011. He further deposed that on 26.12.2011, he was again admitted in City Hospital and was discharged on 28.12.2011. During the said hospitalization, treatment of bleeding from wound of his right thigh was done and covered stent placement was done. He also deposed that he had spent more than Rs. 11,00,000/ on his medical treatment. He has relied upon medical bills. During his crossexamination on behalf of respondent no.3, he denied the suggestion that he had not spent Rs. 11 lacs on his medical treatment. He deposed that he remained admitted in the hospital for 11 times and he had already mentioned the details of admissions in various hospitals and treatment given by them. He denied the suggestion that the admissions were not related to the injuries sustained by him in the accident. Respondents no. 1 & 2 did not crossexamine this witness, both being already exparte.
Omkar Singh Vs. Virender Singh & Ors. Page 9 of 22MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018
19. It may be noted here that the petitioner was allowed to file his additional affidavit in evidence vide order dated 14.07.2015. Accordingly, his additional affidavit in evidence (Ex.PW1/B) was filed, wherein PW1 Omkar Singh proved his future treatment estimate and exhibited the same as Ex. PW1/3. He further exhibited his original treatment papers as Ex. PW1/7(colly). He also exhibited the medical bills as Ex. PW1/8(colly). During his cross examination on behalf of insurance company, he denied the suggestion that he had not got any treatment after recording of his previous statement/evidence. He further denied the suggestion that he had not received any treatment of removal of nail from his right femur bone. He also denied the suggestion that he had filed false and fabricated treatment papers and medical bills. Respondents no. 1 & 2 did not crossexamine this witness, both being already exparte.
20. The petitioner was further allowed to file his additional affidavit in evidence vide order dated 25.08.17 Accordingly, additional affidavit in evidence (Ex. PW1/C) was filed, wherein PW1 Omkar Singh proved his further medical treatment papers and exhibited the same as Ex. PW1/9(colly). He also exhibited the medical bills as Ex. PW1/10(colly). He also marked the list of medical bills as Mark Z. During his crossexamination on behalf of insurance company, he denied the suggestion that the medical bills had no co relation with the injuries sustained by him due to the accident in question or that the said bills had been fabricated by him. Respondents no. 1 & 2 did not crossexamine this witness, both being already exparte.
21. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. Moreover, the respondents more particularly insurance company has failed to lead any evidence in rebuttal in order to create any doubt on the authenticity of the medical bills of the injured as available on record. The petitioner has filed original medical bills total amounting to Rs 10,34,352.14 Omkar Singh Vs. Virender Singh & Ors. Page 10 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 paise. Accordingly, a sum of Rs. 10,34,325.14 paise is awarded to the petitioner under this head.
LOSS OF INCOME
22. Injured namely Sh. Omkar Singh (PW1) has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was supplying milk polybags of M/s. Jagjeet Milk Food Pvt Ltd in Kundli, Sonepat, Haryana and was getting monthly salary of Rs. 8,500/ at the time of accident. He further deposed that due to the injuries received by him in the accident, he could not resume his work. He also deposed that he had received medical treatment for considerable period and he also remained admitted in various hospitals i.e. Jaipur Golden Hospital, Sir Ganga Ram Hospital, City Hospital and Mittal Nursing Home on 910 occasions. He also deposed that he remained admitted in Jaipur Golden Hospital from 22.05.11 to 01.06.11, then from 14.06.11 to 22.06.11 and again from 22.06.11 to 15.07.11. He also remained admitted in City Hospital from 01.07.11 to 15.07.11, then from 26.07.11 to 29.07.11, again from 30.07.11 to 05.08.11 and thereafter again from 26.12.11 to 28.12.11. He also remained admitted in Mittal Nursing Home from 23.11.11 to 07.12.11 and thereafter again from 05.09.14 to 15.09.14. During his crossexamination on behalf of respondent no. 3, he deposed that he had not placed on record any document to show that he was carrying the milk poly bags of above said firm. He denied the suggestion that he was not working with the abovesaid firm. He further denied the suggestion that he was not earning Rs. 8,500/ per month at the time of accident. He admitted that he had not filed any proof of his working/employment. He denied the suggestion that he was unemployed at the time of accident. Respondents no. 1 & 2 did not crossexamine this witness, both being already exparte.
23. PW2 Sh. Gaurav Malhotra, Record Technician, Sir Ganga Ram Hospital, Delhi has produced the treatment record of patient Omkar Singh. He deposed that said patient was admitted in their hospital on 06.07.11 and was Omkar Singh Vs. Virender Singh & Ors. Page 11 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 discharged on the same day. He collectively exhibited the entire treatment record as Ex. PW2/1. He further deposed that patient Omkar Singh was again admitted in their hospital on 09.07.11 and was discharged on the same day. He collectively exhibited the said treatment record as Ex. PW2/2. During his crossexamination on behalf of respondent no. 3, he deposed that he had no personal knowledge of the case. Respondents no. 1 & 2 did not crossexamine this witness, both being already exparte.
24. PW3 Sh. Rajneesh Kumar, Record Assistant, City Hospital has produced the treatment record of patient Omkar Singh. He deposed that said patient was admitted in their hospital on 01.07.11 and was discharged on 15.07.11. He collectively exhibited the entire treatment record as Ex. PW3/1. He also collectively exhibited the bills and receipts in this regard as Ex. PW3/2. He deposed that patient Omkar Singh was again admitted in their hospital on 26.07.11 and was discharged on 29.07.11. He collectively exhibited the said treatment record as Ex. PW3/3. He also collectively exhibited the bills and receipts as Ex. PW3/4. He further deposed that patient Omkar Singh was again admitted in their hospital on 30.07.11 and was discharged on 05.08.11. He collectively exhibited the said treatment record as Ex. PW3/5. He collectively exhibited the bills and receipts in this regard as Ex. PW3/6. He also deposed that patient Omkar Singh was again admitted in their hospital for the fourth time on 26.12.11 and was discharged on 28.12.11. He collectively exhibited the said treatment record as Ex. PW3/7. He collectively exhibited the bills and receipts in this regard as Ex. PW3/8. During his crossexamination on behalf of respondent no. 3, he deposed that he had no personal knowledge of the case. Respondents no. 1 & 2 did not crossexamine this witness, both being already exparte.
25. PW4 Sh. D.K. Chhabra, Record Clerk, Jaipur Golden Hospital, Rohini, has produced the treatment record of patient Omkar Singh. He deposed that said patient was admitted in their hospital on 22.05.11 and was Omkar Singh Vs. Virender Singh & Ors. Page 12 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 discharged on 01.06.11. He collectively exhibited the said treatment record as Ex. PW4/1. He further deposed that patient Omkar Singh was again admitted in their hospital on 22.06.11 and was discharged on 28.06.11. He collectively exhibited the said treatment record as Ex. PW4/2. He also produced the entire file pertaining to the treatment of Omkar Singh with Jaipur Golden Hospital and exhibited the same as Ex. PW4/X. None of the respondents examined this witness on this aspect.
26. PW5 Dr. Manoj Mittal, Mittal Nursing Home & Ilizarov Centre has deposed that he had treated the patient Omkar Singh who came to his hospital for treatment of infected fracture shaft femur bone. He further deposed that said patient was admitted in his hospital on 23.11.11 and was discharged on 07.12.11 after treatment of discharging pus from wound of right thigh. He was again admitted in his hospital on 05.09.14 and was discharged on 15.09.14 after removal of infected nail. He deposed to have issued the rough estimate(Ex. PW1/3) for removal of infected nail as also the medical bills and treatment record Ex. PW1/2, Ex. PW1/7 and Ex. PW1/8 available on record. He further deposed that he had received the full payment of Rs. 24,900/on the first occasion when the said patient remained admitted in his Nursing Home from 23.11.11 to 07.12.11. He also testified to have received full payment of Rs. 40,000/on the second occasion when the said patient remained admitted in his Nursing Home from 05.09.14 to 15.09.14. He also exhibited the copies of treatment record of the injured for the period from 23.11.11 to 07.12.11 as Ex. PW5/1(colly) and copies of treatment record of the injured for the period from 05.09.14 to 15.09.14 as Ex. PW5/2(colly). During his crossexamination, he deposed that he had received the entire payment of medical bills on both the occasions in cash and no paper was got signed from him for any mediclaim purpose. The patient had come to his Nursing Home on his own wish for further treatment. He denied the suggestion that he had prepared false medical bills in order to help the claimant for getting higher claim or that the said bills were false and fabricated.
Omkar Singh Vs. Virender Singh & Ors. Page 13 of 22MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018
27. The aforesaid medical treatment record of petitioner/injured, as brought on record by PW2 to PW5, would show that the injured had suffered acute compartment syndrome right thigh with fracture mid shift femur, right with distal neurovascular deficit and communited fracture S/C femur left. During the period of his hospitalization, his right femur bone was operated upon and interlocking nail was inserted in it, split skin grafting was also applied on raw area of his right thigh, fasciotomy of his right thigh was also done, blood transfusion, treatment of pus discharging from wound of his right thigh was also done, fasciotomy of compartment syndrome of right thigh, blood clots were evacuated from the wound present in his right thigh, right SFA angiography which revealed large pseudoaneuyrm for which endoluminal bypass was also done, treatment of bleeding from wound of his right thigh was done and covered stent placement was done. Said treatment records have gone unchallanged and uncontroverted from the side of respondents.
28. It is pertinent to note that the petitioner remained admitted in various hospitals from time to time for atleast 9 occasions, as the record would show that he remained admitted in Jaipur Golden Hospital from 22.05.11 to 01.06.11, then from 14.06.11 to 22.06.11 and again from 22.06.11 to 15.07.11. He also remained admitted in City Hospital from 01.07.11 to 15.07.11, then from 26.07.11 to 29.07.11, again from 30.07.11 to 05.08.11 and thereafter again from 26.12.11 to 28.12.11. He also remained admitted in Mittal Nursing Home from 23.11.11 to 07.12.11 and thereafter again from 05.09.14 to 15.09.14. Same would show that the medical treatment of petitioner continued atleast for about 3 ½ years and even during said period, he remained admitted in the aforesaid hospitals for considerable period. Moreover, he is also shown to have sustained permanent disability to the tune of 84% in relation to his right lower limb. Taking into consideration the overall facts and circumstances of the case including the nature of injuries sustained by the petitioner as already noted above, it is presumed that he would not have been able to work for atleast for a period of 2 years or so.
Omkar Singh Vs. Virender Singh & Ors. Page 14 of 22MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018
29. During the course of arguments, counsel for injured fairly conceded that for want of any cogent evidence with regard to monthly income of injured/petitioner, his income has to be assessed as per Minimum Wages Act applicable during the relevant period. However, the injured has filed copy of certificate of 10th class, which is Ex. PW1/4.
30. In the absence of any definite evidence with regard to actual avocation and monthly income of petitioner, his monthly income is being assessed as that of Matriculate under Minimum Wages Act applicable during the relevant period. The minimum wages of Matriculate were Rs. 7,826/ per month as on the date of accident which is 22.05.2011. Thus, a sum of Rs. 1,87,824/ (Rs. 7,826/ x 24) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
31. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
32. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries i.e. acute compartment syndrome right thigh, fracture mid shaft femur right with distal Omkar Singh Vs. Virender Singh & Ors. Page 15 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 neurovascular deficit and communited fracture S/C femur left. During the period of his hospitalization, his right femur bone was operated upon and interlocking nail was inserted in it, split skin grafting was also applied on raw area of his right thigh, fasciotomy of his right thigh was also done, blood transfusion, treatment of pus discharging from wound of his right thigh was also done, fasciotomy of compartment syndrome of right thigh,blood clots were evacuated from the wound present in his right thigh, right SFA angiography which revealed large pseudoaneuyrm for which endoluminal bypass was also done, treatment of bleeding from wound of his right thigh was done and covered stent placement was done. He has sustained permanent disability to the extent of 84% in relation to right lower limb. Apart from the fact that the relevant portion of his testimony in this regard, has gone unchallanged and unrebutted from the side of respondents, his ocular testimony is duly corroborated by the ocular testimonies of PW2 to PW5 and by his medical treatment record as well as Disability Report (Ex. PW6/1) filed by him. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs. 3,00,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
33. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered grievous injuries i.e. acute compartment syndrome right thigh, fracture mid shaft femur right with distal neurovascular deficit and communited fracture S/C femur left due to the accident in question. During the period of his hospitalization, his right femur bone was operated upon and interlocking nail was inserted in it, split skin grafting was also applied on raw area of his right thigh, fasciotomy of his right thigh was also done, blood transfusion, treatment of pus discharging from Omkar Singh Vs. Virender Singh & Ors. Page 16 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 wound of his right thigh was also done, fasciotomy of compartment syndrome of right thigh, blood clots were evacuated from the wound present in his right thigh, right SFA angiography which revealed large pseudoaneuyrm for which endoluminal bypass was also done, treatment of bleeding from wound of his right thigh was done and covered stent placement was done. He has also sustained permanent disability of 84% in relation to his right lower limb, which is duly established from the Disability Report (Ex. PW6/1) issued by LNJP Hospital, Rohini, Delhi. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 3,00,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
34. Although, the petitioner/injured as PW1 has deposed in his evidence by way of affidavit (Ex. PW1/A) that he had spent Rs. 50,000/ on conveyance, Rs. 50,000/ on special diet and Rs. 80,000/ on attendant but he has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that he had sustained grievous injuries i.e. acute compartment syndrome right thigh, fracture mid shaft femur right with distal neurovascular deficit and communited fracture S/C femur left due to the accident in question. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 25,000/ for conveyance Omkar Singh Vs. Virender Singh & Ors. Page 17 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 charges and a sum of Rs. 50,000/ each for special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
35. As already stated above, the petitioner is shown to have sustained 84% permanent disability in relation to his right lower limb. Same is quite evident from Disability Report dated 19.08.2014 (Ex. PW6/1) of Medical Board of LNJP Hospital, Rohini, Delhi. The petitioner has also testified in this regard while examining himself as PW1 during inquiry. He has not been cross examined by the respondents on this aspect.
36. As per the testimony of PW6 Dr. P.N. Pandey, who was one of the members of Disability Board constituted at LNJP Hospital, the petitioner was found to have suffered 84% permanent disability in relation to his right lower limb and same was permanent and nonprogressive in nature. He deposed that injured had left side below knee amputation due to previous injury which had not been taken into account at the time of assessing his disability caused due to the accident in question. He proved disability certificate of injured as Ex. PW6/1. He further deposed that in view of disability of the aforesaid nature suffered by the patient, he would not be able to stand, walk without help of two men support/clutches. He would also not been able to squat or even to sit. He would also not been able to lift any weight or to bend himself to the floor for the purpose of lifting any object. He might have also faced difficulty in passing the stool in any kind of toilet be it Indian or Western. He would also not been able to drive any kind of vehicle. In his cross examination on behalf of insurance company, he admitted that the disability of 84% of right lower limb did not include the earlier disability of amputated left lower limb of injured. He deposed that with the help of prosthesis, his condition may be improved but even then, he would not be completely fit to perform the daily activities of life. Respondents no. 1 & 2 did not crossexamine this witness, both being already exparte.
Omkar Singh Vs. Virender Singh & Ors. Page 18 of 22MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018
37. The disability report (Ex. PW6/1) of injured would reveal that he had suffered 84% permanent disability in relation to his right lower limb. He was doing the work of supplying milk polybags prior to the accident in question. Thus, it would not be possible for him to engage himself in the said avocation or in any kind of employment requiring movement of lower limbs or even to do his day to day activities himself. Hence, his functional disability is taken as 75 % in relation to whole body.
38. In copy of 10th class certificate of petitioner, his date of birth is mentioned as 06.07.1973. The date of accident is 22.05.2011. In view of said document, his age was about 38 years as on the date of accident. Hence, the appropriate multiplier would be 15 in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
39. The notional monthly income of petitioner has been taken as Rs. 7,826/ per month as discussed above. Thus, the loss of monthly future income would be Rs.5,869.50 paise (Rs. 7,826/ x 75/100 ). The total loss of future income would be Rs. 14,79,114/ (Rs. 5.869.50 paise x 140/100 x 12 x
15). Thus, a sum of Rs. 14,79,200/ (rounded off) is awarded in favour of petitioner under this head. (Reliance placed on decisions of Hon'ble Delhi High Court in "National Insurance Co. Ltd. Vs. Hari Om Const. & Ors.", MAC APP No. 464/2011 decided on 03.11.17 and "ICICI Lombard General Insurance Company Limited Vs. Mahesh Kumar & Ors.", MAC APP No. 843/2011, decided on 03.11.17).
Thus, t he total compensation is assessed as under:
1. Medical Income Rs. 10,34,325.14
2. Loss of income Rs. 1,87,824/
3. Pain and suffering Rs. 3,00,000/
4. Loss of general amenities and Rs. 3,00,000/ Omkar Singh Vs. Virender Singh & Ors. Page 19 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 enjoyment of life
5. Conveyance, special diet and attendant Rs. 1,25,000/ charges
6. Loss of future income Rs. 14,79,200/ Total Rs. 34,26,349.14/ Rounded off to Rs. 34,26,500/
40. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 3/insurance company did not adduce any evidence since it had no statutory defence. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
41. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 34,26,500/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 24.08.11 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
42. Statement of petitioner in terms of Clause 26 MCTAP was recorded on 24.10.2017. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the award amount, a sum of Rs. 12,00,000/ (Rupees Twelve Lacs Only)(since a sum of Rs. 10,34,325.14 paise has already been incurred by the injured on his Omkar Singh Vs. Virender Singh & Ors. Page 20 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 treatment) shall be immediately released to the petitioner through his saving bank account no. 35102668995 with State Bank of India, District Court Rohini, Delhi, having IFSC Code SBIN0010323 and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 1,00,000/ each for a period of six months, twelve months, eighteen months and so on and so forth.
43. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(i) The interest on the fixed deposits be paid monthly to the claimant.
(ii) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimant/petitioner. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant/petitioner.
(iii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
(iv) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victim.
(vi) Half yearly statement of account be filed by the Bank before the Tribunal.
44. During the course of hearing final arguments, claimant was asked as to whether he was entitled to exemption from deduction of TDS or not. He stated on oath that he was entitled to exemption from deduction of TDS and also furnished Form No. 15G on record.
45. Respondent no. 3, being insurer of offending vehicle is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Omkar Singh Vs. Virender Singh & Ors. Page 21 of 22 MACP No.4851/16; FIR No. 175/11; PS. Alipur DOD: 08.08.2018 Court Branch is directed to transfer the amount of Rs. 12,00,000/in the aforesaid saving bank account mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimant. Copy of this award be given dasti alongwith Form no. 15G furnished by claimant (after retaining its copy on record) to counsel for insurance company. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form IVB and Form V in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 08.08.2018 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Omkar Singh Vs. Virender Singh & Ors. Page 22 of 22