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Delhi District Court

Sh. Praveen Kumar Gera vs Sh. Ajay Kumar (Driver Cum Owner) on 10 March, 2014

        IN THE COURT OF SH. ARUN BHARDWAJ
     PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
      TRIBUNAL-II, DWARKA COURTS, NEW DELHI


                             49/DAR/12

IN THE MATTER OF :

       Sh. Praveen Kumar Gera,
       S/o Sh. Narain Dass Gera,
       R/o WZ-30, Krishna Puri,
       Tilak Nagar, Delhi.

                                                             ...   Claimant


                          Versus


   1. Sh. Ajay Kumar (Driver cum Owner)
      S/o Sh. Brahm Prakash,
      R/o 134, Chhoti Patti,
      Paparawat Village,
      New Delhi.

   2. Bajaj Allianz Ins. Co. Ltd. (Insurer)
      JMD, Regent Plaza,
      IIIrd Floor, Sikandarpur,
      M.G. Road, Gurgaon,
      (Haryana).

                                                       ...   Respondents

FILED ON                             :       01.02.2012
HEARD ON                             :       10.03.2014
DECIDED ON                           :       10.03.2014
49/DAR/12       Sh. Praveen Kumar v. Sh. Ajay Kumar & Anr.           Page 1 of 9
                        -:     JUDGMENT                       :-

1. This D. A. Report is filed by the Investigating Officer in FIR. No. 339/11 registered at P.S. Dwarka South Delhi under Section 279/337 of IPC in which the claimant had suffered simple injuries in a road traffic accident dated 15.12.11.

2. Respondent No. 1 is the driver cum owner and Respondent No. 2 is the insurer of the offending vehicle.

3. Notice of this D.A. Report was issued to all the parties.

4. Only Insurance Company responded to that and gave a legal offer of Rs. 7,000/-.

5. The offer was not acceptable to the claimant.

Therefore, following issues were framed to decide the compensation payable to the claimant:-

(1) Whether the petitioner received injuries in an accident on 15.12.2011 caused by respondent no. 1, while driving Taxi Car bearing no. HR-55MT-3264 rashly and negligently, owned by respondent no. 1 and insured with respondent no. 2? OPP (2) If yes, what is the amount of compensation which the claimant is entitled to receive and 49/DAR/12 Sh. Praveen Kumar v. Sh. Ajay Kumar & Anr. Page 2 of 9 from which respondent?

(3) Relief.

6. Claimant entered in the witness box as PW-1 and stated that on 15.12.11 he was going from Dwarka Sector-11 to Sector-9 by his Car bearing No. DL- 2C-AL- 9025 Maruti Swift Car and when he reached at crossing of Dwarka Sector-11, one taxi car bearing no. HR-55MT- 3264 coming from Sector-6 side in a rash and negligent manner hit his car from right side. Claimant has stated that he became unconscious after the accident and suffered grievous injuries and his car was totally damaged.

7. He deposed that the accident was due to negligent driving of Taxi Car bearing no. HR-55MT-3264.

8. Claimant has further stated that he was removed to DDU Hospital after the accident where MLC was prepared by the treating doctors and he was advised C.T. Scan, X-ray and other medical tests. Thereafter, he was discharged from the hospital.

9. Claimant has stated that thereafter he continued treatment as an outdoor patient and spent Rs. 25,000/- on his treatment.

10. Claimant has stated that he is a Director of M/s. Suvidha Educational Academy Pvt. Ltd. and draws a salary of Rs. 40,000/- per month but due to said accident he could not work properly and business of the 49/DAR/12 Sh. Praveen Kumar v. Sh. Ajay Kumar & Anr. Page 3 of 9 company suffered.

11. He has claimed a compensation of Rs. 2 lacs for that loss.

12. Further, he has stated that his car bearing no. DL-2C-AL-9025 was insured with Oriental Insurance Co. Ltd. and as against total bills of Rs. 2,36,831/- raised by M/s. Carnation, Gurgaon, claimant was only granted Rs. 1,50,000/- and balance amount of Rs. 1,21,830/- was given by the claimant from his own pocket.

13. He further stated that he had to engage taxis whenever he had to go out for work in Delhi and outside Delhi and spent Rs. 50,000/- as his car remained in the workshop for repairs for six months.

14. Claimant has stated that he has spent Rs. 20,000/- on special diet and he reiterated that the accident was due to negligence of Respondent No. 1. He proved his PAN Card, driving license and Registration Certificate of his car as Ex. PW1/1-2A. He relied on medical bills and reports as Ex. PW1/3-8, Certificate from M/s. Suvidha Educational Academy Pvt. Ltd. as Ex. PW1/10, statement of account from State Bank of India as Ex. PW1/11, insurance policy of his car as Ex. PW1/12, vehicle report form as Ex. PW1/13 and bill of M/s. Carnation as Ex. PW1/14.

15. When he entered in the witness box he was not cross examined by counsel for Respondent No. 1.

16. In cross-examination by Respondent No. 2, he 49/DAR/12 Sh. Praveen Kumar v. Sh. Ajay Kumar & Anr. Page 4 of 9 deposed that the accident was not due to his own negligence. He denied a suggestion that he has not incurred expenses as stated by him in his evidence by way of affidavit.

17. Second witness examined by claimant was PW-2, Sh. Vinayak Prasad Dubey from M/s. Carnation.

18. This witness was examined to prove cost of repairs incurred by the claimant.

19. However, evidence of this witness is not relevant because this D.A. Report is filed for injuries suffered by claimant Praveen Kumar Gera and car admittedly is in the name of M/s. Suvidha Educational Academy Pvt. Ltd. which is a separate legal entity.

20. Therefore, in this D.A. Report, no compensation will be given for damage to the car of claimant.

21. However, he shall be at liberty to file fresh claim petition in the name of M/s. Suvidha Educational Academy Pvt. Ltd. for availing compensation from respondents for damage to his car also.

22. No other witness was examined by claimant and no witness was examined by any of the respondents.

23. On the basis of pleadings of parties, evidence on record and arguments addressed, issue wise findings are as under:-

24. So far as Issue No. 1 is concerned, claimant has stated in his evidence by way of affidavit that the accident was due to rash and negligent driving by Respondent No. 1. But the Respondent No. 1 did not cross examine the claimant and Respondent No. 1 did not enter in the witness box to prove his innocence to show that the accident was not due to negligence of Respondent No. 1 or it was due to negligence of claimant himself.

25. Counsel for Respondent No. 1 has filed certified copy of order passed by Ld. M.M. acquitting Respondent No. 1 in a case registered against him under Section 279/337 of IPC.

26. However, order of the Ld. Magistrate acquitting the driver in criminal case is not binding on Claims Tribunal.

27. Driver was arrested by the police in this accident case and after investigation, he was charge sheeted under Section 279 & 337 of IPC. Evidence of claimant that the accident was due to negligence of Respondent No. 1 has remained unchallenged before this Tribunal.

28. Therefore, Issue No. 1 is decided holding that the accident was due to negligence of Respondent No.

1. ISSUE NO. 2

29. As noted earlier, relief in this Report is to be 49/DAR/12 Sh. Praveen Kumar v. Sh. Ajay Kumar & Anr. Page 6 of 9 confined only to compensation to be given to claimant for injuries suffered by him.

30. A perusal of the Emergency Department treatment record of DDU Hospital shows that the claimant had lost consciousness for 2 seconds and he was referred to Neuro Surgery Department. NCCT Head shows normal scan and it was noted that no active intervention needed in Neuro Surgery. He was referred to Orthopedic Department for swelling in left leg.

31. Next day i.e. on 16.12.11 claimant had taken treatment from Dr. Lalit Kumar Narang who had advised him bed rest for 15 days.

32. Therefore, for Pain and Suffering, claimant is awarded a compensation of Rs. 7,500/-.

33. Two medical bills worth Rs. 1,404/- are on record. Therefore, for Cost of Treatment, claimant is awarded a compensation of Rs. 1,500/-.

34. Additionally, claimant is awarded a compensation of Rs. 5,000/- including Special Diet, Conveyance Charges and Attendant Charges, if any.

35. Claimant was advised bed rest for 15 days. He is a Director in M/s. Suvidha Educational Academy Pvt. Ltd. at a salary of Rs. 40,000/- per month. However, claimant has not shown how much loss he suffered for availing bed rest for 15 days. Therefore, on a lump sum basis, he is awarded a compensation of Rs.

7,500/- for Loss of Income due to bed rest advised to him by the treating doctor.

36. Therefore, Claimant is awarded a total compensation of Rs. 21,500/- which shall be payable with interest @ 7.5% per annum from the date of filing of this D.A. Report which is 01.02.2012 till its realization.

37. Insurance Company has not proved any defence.

38. Therefore, the compensation shall be payable by the Insurance Company which be deposited within 30 days from today under intimation to the claimant as well as to his counsel by Registered Post.

39. In case, the compensation remains unpaid even after 90 days of the passing of the award, it shall be recovered by attaching the bank account of Insurance Company along with a cost of Rs. 5,000/- in terms of judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688.

40. Nazir of this Court will also send intimation of deposit of compensation to the claimant as well as to her counsel.

41. Address of counsel for the claimant is as under: -

Sh. Ashok Kumar Upmanu, Advocate Chamber No. 603, Dwarka Court Complex, 49/DAR/12 Sh. Praveen Kumar v. Sh. Ajay Kumar & Anr. Page 8 of 9 Delhi.

42. Ahlmad will put up this file with a report from the Nazir regarding deposit of compensation again on 10.06.2014.

43. Copy of award be given dasti to all the parties.

44. File be consigned to the Record Room.

Announced in the Open Court.

On the 10th day of March, 2014 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL-II DWARKA COURTS, NEW DELHI.