Delhi District Court
Sh. Brij Nandan vs . Yogdutt & Ors. on 15 July, 2014
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Sh. Brij Nandan Vs. Yogdutt & Ors.
Sh. Ram Sajan Vs. Yogdutt & Ors.
IN THE COURT OF SH. DEEPAK JAGOTRA
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
TRIBUNAL,DWARKA COURTS, NEW DELHI
IN THE MATTER OF : Sh. Brij Nandan Vs. Yogdutt & Ors.
DAR NO : 47/DAR/14
Sh. Brij Nandan
S/o Sh. Rajkaran
R/o RZ567/1 Steet No. 21,
Sadhnagar PartII,
Palam Colony, New Delhi. ........Petitioner
Through Advocate Sh. A. N. Pandey
Ch. NO. 552, Lawyer Chambers,
Dwarka Court Complex, Sec10,
Dwarka, New Delhi110075.
Versus
1 Sh. Yogdutt
S/o Sh. Parmanand Sharma
R/o Vill. Hisar Distt. Hisar,
H. No. 233/7 Jwahar Nagar,
Hisar, Haryana.
2 DCP (P& L)
Govt. Vehicle (Delhi Police) ...........Respondents
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Sh. Ram Sajan Vs. Yogdutt & Ors.
AND (II) IN THE MATTER OF : Sh. Ram Sajan Vs. Yogdutt & Ors. DAR NO : 46/DAR/14 Sh. Ram Sajan S/o Jaskaran R/o 567, Gali No. 21, Sadh Nagar, Palam, New Delhi.
........Petitioner Through Advocate Sh. A. N. Pandey Ch. NO. 552, Lawyer Chambers, Dwarka Court Complex, Sec10, Dwarka, New Delhi110075.
Versus 1 Sh. Yogdutt S/o Sh. Parmanand Sharma R/o Vill. Hisar Distt. Hisar, H. No. 233/7 Jwahar Nagar, Hisar, Haryana.
2 DCP (P& L) Govt. Vehicle (Delhi Police) ...........Respondents
1. Date of institution in DAR No. 47/DAR/14: 24/01/2013
2. Date of institution in DAR No. 46/DAR/14:15/03/2013
3. Date of framing of issues: 29/04/2013
4. Date of hearing arguments : 22/05/2014
5. Date of decision : 15/07/2014 Page no. 20 of 2 -:3:- Sh. Brij Nandan Vs. Yogdutt & Ors.
Sh. Ram Sajan Vs. Yogdutt & Ors.
INJURY CASES AWARD/ JUDGEMENT:
1. DAR bearing no. 47/DAR/14 titled as "Sh. Brij Nandan Vs. Yogdutt & Ors." and second DAR bearing no. 46/DAR/14 titled as "Sh.
Ram Sajan Vs. Yogdutt & Ors." were filed by the injured themselves claiming compensation as per the provisions of Motor Vehicle Act 1988 from the respondents.
2 Both the said petitioners have arisen out of same accident, therefore, both the petitions shall be decided by this common judgment. 3 Facts in the concise format are that on 29/04/2010 Sh. Ram Sajan and Brij Nandan met with the accident with motorcycle bearing no. DL1SN5520 being driven by Sh. Yogdutt Sharma in rash and negligent manner hit the motorcycle on which the claimants were travelling. As a result of the impact both the injured received grievous injuries on their persons.
4 I have heard both the sides and carefully perused the record of the case.
5 Ld. counsel for the claimant submits that they have proved their case and claim good compensation towards both the injury cases. On the other hand Ld. Counsel for the respondents prays for the dismissal of the Page no. 20 of 3 -:4:- Sh. Brij Nandan Vs. Yogdutt & Ors.
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petition.
Recapitulation of the sequence of events are as follows: 6 The DAR bearing no. 47/DAR/14 (Old no. 42/DAR/13) had been filed on 24/01/2013. The DAR bearing no. 46/DAR/14 (Old no. 110/DAR/13) had been filed on 15/03/2013. Issues were framed on 29/04/2013. Written reply has been filed on behalf of respondent no. 1 on 08/07/2013. In order to prove their case the petitioners have examined PW1 Sh. Brij Nandan Verma in DAR no. 47/DAR/14, PW1 Sh. Ram Sajan in DAR No. 46/DAR/14, PW2 Mohd. Shamsher, PW3 Sh. Munna Lal. The respondents have examined R1W1 Sh. Shambhu Kumar Jha and closed their evidence on 02/05/2014.
7 On the pleadings of the parties, following issues were framed: Issue No. 1 Whether Sh. Brij Nandan and Sh.
Ram Sajan Claimants received injuries in an accident on 29.04.2010 caused by Respondent no. 1, while driving vehicle bearing no.
DL1SN5520 rashly and negligently and owned by Respondent no. 2? .....OPP Page no. 20 of 4 -:5:- Sh. Brij Nandan Vs. Yogdutt & Ors.
Sh. Ram Sajan Vs. Yogdutt & Ors.
Issue No. 2 If yes, what is the amount of compensation which the claimants are entitled to receive and from which respondent? ....... OPP Issue No. 3 Relief.
FINDINGS ON ISSUE NO. 1 in both the petitions 8 In order to prove their case PW1 Sh. Ram Sajan Verma who was the pillion rider of motorcycle bearing no. DL6SS0774 was an eye witness and has stated that on 29/4/2010 he along with Brij Nanadan Verma who was driving the motorcycle were going from Shyam Vihar, Najafgarh towards Palam, New Delhi. He further stated that they reached Sector14 Dwarka Near CRPF Public School, respondent no. 1 came at high speed on official motorcycle bearing no. DL1SN5520 and hit their motorcycle with great force. As a result of which they fell down on the road and sustained grievous injuries.
9 On the basis of statement given by eye witness FIR no. 277/10 was registered against Yogdutt and he was charge sheeted by police. R1 Yogutt was formally arrested and released on bail by the Police. Site plan was also prepared, MLC of the injured were prepared.
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10 Brij Nandan has examined himself as PW1 in DAR no. 47/13. He has also given the same account of events that had led to the accident as has been narrated by Ram Sajan Verma. In the cross examination suggestion has been given that the accident had happened due to fault of Brij Nanadan Verma which is denied by the witness. Similar suggestions has been given to Ram Sajan Verma which is also denied.
11 In order to prove the defence of Yogdutt, R1W1 Sh. Shambhu Kumar Jha has been brought in the witness box who has stated that on 29/4/2010 he was going to PS Dwarka where he had seen the accident. He further stated that Yogdutt Sharma was going on correct side by driving his Government Motorcycle bearing no. DL1SN5520 and one motorcycle rider bearing no. DL6SS0774 who was coming from wrong side and hit the motorcycle of Yogdutt. As a result of which he fell down on the road. He further stated that the said accident was caused due to mistake of driver of vehicle no. DL6SS0774.
12 In the cross examination of R1W1 Shambhu Kumar Jha it is elicited as under: The date of accident 29.04.2010, at about 6.45 PM. It is wrong to suggest that the accident had taken place at 6.00 PM and not at 6.45 PM. I am a Social Worker. There was quarrel in my colony and I was going to Police Station in that regard and on the way, I saw the accident. I was Page no. 20 of 6 -:7:- Sh. Brij Nandan Vs. Yogdutt & Ors.
Sh. Ram Sajan Vs. Yogdutt & Ors.
going on my motorcycle bearing no. DL4SBB0219. I was behind motorcycle of Sh. Yogdutt. I do not know whether any other witness was present besides me or not. It is wrong to suggest that I am not an eye witness to the accident. I have not signed on any document of police including site plan.
13 From the above it could be seen that now for the first time the witness says that "he was going on his motorcycle bearing no. DL4SBB0219 and he was behind the motorcycle of Yogdutt". Had this been the case he should have mentioned this fact in his examination in chief. Therefore, there is a material missing link as to what has been narrated in the chief and what has come in the cross examination. Moreover, he has further stated that he had not informed the police and he had helped of the three injured to get inside PCR. If he was really present at time of incident in fact he should have been the first person to inform the police and he should have got recorded his statement before the Police at the fist instance. 14 The stand taken in the defence is that the motorcycle of Brij Mohan was coming from the wrong side is not supported and reflected in the site plan prepared by the police. Moreover had he been the real eye witness the FIR should have been recorded on his statement and at least he could have remembered the FIR number in which present claimants were Page no. 20 of 7 -:8:- Sh. Brij Nandan Vs. Yogdutt & Ors.
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made as accused on being asked a question this regard in the cross. The respondent Yogdutt Sharma has failed to establish that the accident had happened because of fault of Brij Nanadan. On the other hand the case putforth by the claimants is believable and in all probability accident had happened due to rash and negligent driving of Yogdutt Sharma. 15 It is a settled law that claimants need not to prove its present case beyond reasonable doubt. The matter has to be seen on the premise of preponderance of probabilities. Therefore, keeping in view the totality of facts & circumstances of the matter, this issue is decided in favour of the petitioners and against the respondents. 16 Findings on issue no. 1 & 2 in both the cases shall remain the same. Therefore, keeping in view the totality of facts & circumstances of the matter, this issue is also decided in favour of the petitioners and against the respondents.
FINDING ON ISSUE NO.2 17 This brings us to fixation of quantum of compensation which may be awarded in favour of the petitioners and against the respondents who are jointly or severely liable to make good the payment. Since the vehicle was insured with respondent no.3, therefore, they are primarily responsible Page no. 20 of 8 -:9:- Sh. Brij Nandan Vs. Yogdutt & Ors.
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to make the payment which may be awarded in the later part of the judgment.
IN DAR BEARING NO. 47/DAR/14 LOSS OF INCOME 18 In order to fix the quantum of compensation, the income of the deceased shall have to be assessed first which is also called Multiplicand. 19 According to Brij Nandan he is self employed person and working with Verma Timber Store at RZF850/1, Shyam Vihar, Khatushyam Mandir Road, New Delhi and was earning Rs. 12,000/ per month at the time of accident. No documentary proof whatsoever has been placed on record which makes it believable that the injured was employed with M/s Verma Timber Store and was earning Rs. 12,000/ per month. Even no salary certificate has been placed on record issued by Verma Timber Store. No witness has come from Verma Timber Store in order to support and substantiate this fact, therefore, it is not believable that he was working with Verma Timber Store and was earning Rs. 12,000/ per month. The injured had received multiple fracture on his left leg and on head. He was admitted in Deen Dayal Upadhyay hospital on 30/04/2010 and discharged on 22/06/2010. It must have taken at least six months to get him Page no. 20 of 9 -:10:- Sh. Brij Nandan Vs. Yogdutt & Ors.
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recovery. Therefore for assessing the loss of income regard shall be had to Minimum Wages Act for unskilled person which on the date of accident was Rs.6422/ per month. Therefore, he is entitled to an amount of Rs. 6422/ X 6= 38,532/ (Thirty Eight Thousand, Five Hundred and Thirty Two Only).
MEDICINES & TREATMENT 20 As per medical record the injured had suffered fracture on his right leg and remained admitted in the hospital from time to time. He further submitted that apart from suffering bodily pain, injury etc., he had to spent lot of money on his medical treatment. 21 He has proved the total medical bills of Rs. 11,777/ (Eleven Thousand, Seven Hundred and Seventy Seven Only) as Ex. PW1/2 (Colly). No other conclusion can be formed that these bills are not related to the present matter and not for the treatment of the injured. Therefore, injured is entitled to the entire amount of Rs. 11,777/ (Eleven Thousand, Seven Hundred and Seventy Seven Only) towards medical expenses.
PAIN & SUFFERINGS 22 As per the settled law for assessing the pain & suffering following factors have to be taken into account:
(a) Nature of injury
(b) Parts of body where injuries occurred Page no. 20 of 10 -:11:- Sh. Brij Nandan Vs. Yogdutt & Ors.
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(c) Surgeries, if any
(d) Confinement in hospital
(e) Duration of the treatment.
23 As per medical record the injured had received multiple
fracture on his left leg and on head. He was admitted in Deen Dayal
Upadhyay hospital on 30/04/2010 and discharged on 22/06/2010. He further submitted that apart from suffering bodily pain, injury etc., he had to spent lot of money on his medical treatment. Since, the injured had suffered injuries on his body, therefore, he is entitled to an amount of Rs. 50,000/ towards pain and sufferings.
CONVEYANCE & SPECIAL DIET 24 Nothing on record has come which could specifically show that injured had spent any amount on the conveyance. Having said that it is natural that he must have traveled back and forth to the hospital from his house on some conveyance. He must have paid number of visits to the Doctor in order to take stalk of his health. In order to recover himself properly, he also needed some special diet to have fast recovery from the injuries. Needless to say that special diet helps in the full recovery of the patient. Therefore, cumulatively an amount of Rs. 20,000/ is awarded in favour of petitioner/ claimant towards conveyance and special diet.
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25 The break up of compensation that has been awarded in favour of the petitioner is tabulated as below: S. No. HEADS AMOUNT 1 Loss of Income Rs. 38,532/ 2 Medicines & Treatment Rs. 11,777/ 3 Pain & Suffering Rs. 50,000/ 4 Conveyance & Special Diet Rs. 20,000/ 5 Loss of Amenities Rs. 10,000/ Total Rs.1,30,309/ INTEREST 26 The petitioner is awarded interest @ of Rs 7.5 % from the date of filing of the DAR i.e. 24/01/2013 till realization. IN DAR BEARING NO. 46/DAR/14 LOSS OF INCOME 27 In order to fix the quantum of compensation, the income of the deceased shall have to be assessed first which is also called Multiplicand. 28 As per statement of PW1 Ram Sajan he is business man by profession and he is engaged in the business of building material and Page no. 20 of 12 -:13:- Sh. Brij Nandan Vs. Yogdutt & Ors.
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timbers. According to him he is running the firm under the name and style M/s Ajay Construction and was earning Rs. 15,000/ per month. No documentary proof whatsoever has been placed on record in order to show if the injured was running any firm by the name of M/s Ajay Constructions or he was earning Rs. 15,000/ per month. As per his own affidavit he is 73 years of age. It is difficult to believe that he would be earning Rs. 15,000/ per month from running the firm as stated by him. No income tax return has been filed in order to support his case. As per medical record the injured had suffered fracture on his right leg and remained admitted in the hospital from time to time. Therefore, it must have taken at least six months to get him recovery. Therefore for assessing the loss of income regard shall be had to Minimum Wages Act for unskilled person which on the date of accident was Rs.6422/ per month. Therefore, he is entitled to an amount of Rs. 6422/ X 6= 38,532/ (Thirty Eight Thousand, Five Hundred and Thirty Two Only).
MEDICINES & TREATMENT 29 As per medical record the injured had suffered fracture on his right leg and remained admitted in the hospital from time to time. He further submitted that apart from suffering bodily pain, injury etc., he had to spent lot of money on his medical treatment.
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30 He has proved the total medical bills of Rs. 1,23,531/ (One Lac, Twenty Three Thousand, Five Hundred and Thirty One Only) as Ex. PW1/1 (Colly). No other conclusion can be formed that these bills are not related to the present matter and not for the treatment of the injured. Therefore, injured is entitled to the entire amount of Rs. 1,23,531/ (One Lac, Twenty Three Thousand, Five Hundred and Thirty One Only) towards medical expenses.
PAIN & SUFFERINGS 31 As per the settled law for assessing the pain & suffering following factors have to be taken into account:
(a) Nature of injury
(b) Parts of body where injuries occurred
(c) Surgeries, if any
(d) Confinement in hospital
(e) Duration of the treatment.
32 As per medical record the injured had suffered fracture on his right leg and remained admitted in the hospital from time to time. He further submitted that apart from suffering bodily pain, injury etc., he had to spent lot of money on his medical treatment. Since, the injured had suffered injuries on his body, therefore, he is entitled to an amount of Rs. 40,000/ Page no. 20 of 14 -:15:- Sh. Brij Nandan Vs. Yogdutt & Ors.
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towards pain and sufferings.
CONVEYANCE & SPECIAL DIET 33 Nothing on record has come which could specifically show that injured had spent any amount on the conveyance. Having said that it is natural that he must have traveled back and forth to the hospital from his house on some conveyance. He must have paid number of visits to the Doctor in order to take stalk of his health. In order to recover himself properly, he also needed some special diet to have fast recovery from the injuries. Needless to say that special diet helps in the full recovery of the patient. Therefore, cumulatively an amount of Rs. 20,000/ is awarded in favour of petitioner/ claimant towards conveyance and special diet.
ATTENDANT CHARGES 34 PW2 Sh. Shamsher and PW3 Munna Lal have come in the witness box and proved the amount received towards attendant charges for the period from 1/5/2010 to 31/12/2011. Nothing has come in the cross examination to contradict the same. It is believable that the injured had taken the services of attendant. Since the injured is old and aged person of more than 70 years of age, therefore he must have required help of some attendant to do his minimum chores as he must have got some difficulty in Page no. 20 of 15 -:16:- Sh. Brij Nandan Vs. Yogdutt & Ors.
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his locomotor movements. Therefore, he is entitled to an amount of Rs. 84,500/ (Eighty Four Thousand and Five Hundred Only) towards the head Attendant Charges for which payment proof has been placed on record. 35 The break up of compensation that has been awarded in favour of the petitioner is tabulated as below: S. No. HEADS AMOUNT 1 Loss of Income Rs. 38,532/ 2 Medicines & Treatment Rs. 1,23,531/ 3 Pain & Suffering Rs. 40,000/ 4 Conveyance & Special Diet Rs. 20,000/ 5 Attendant Charges Rs. 84,500/ 6 Loss of Amenities Rs. 10,000/ Total Rs. 3,16,563/ INTEREST 36 The petitioner is awarded interest @ of Rs 7.5 % from the date of filing of the DAR i.e. 15/03/2013 till realization.
LIABILITY 37 Admittedly, the offending vehicle was being driven by R1 which was owned by R2. R2 is the principal tort feasor and R1 is vicariously liable. Both the respondents are held jointly and severally liable Page no. 20 of 16 -:17:- Sh. Brij Nandan Vs. Yogdutt & Ors.
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to pay the awarded amount. Since the offending vehicle was insured at the time of accident with R2, therefore, it shall pay the awarded amount. 38 In view of the above discussions, issue no. 2 in both the petitions are decided in favour of the petitioners and against the respondents.
RELIEF 39 In view of findings on issues no. 1, 2 & 3, this issue is also decided in favour of the petitioners and against respondents no.1, 2 & 3. 40 In DAR bearing no. 47/DAR/14 titled as "Sh. Brij Nandan Vs. Yogdutt & Ors." claimant is entitled to Rs. 1,30,309/ (Rupees One Lac, Thirty Thousand, Three Hundred and Nine only) with interest. 41 The awarded amount be deposited by R3 with State Bank of India, Dwarka Court Complex Branch, Sector 10, Dwarka, New Delhi within 30 days from today in the respective names of the petitioners either directly or through RTGS or by NEFT mode (IFSC Code SBIN0011566) under intimation with proof of notice to the claimants & their counsel to the Nazir of this Court. Bank Manager of State Bank of India, Dwarka Court Complex, Sector10, New Delhi is directed to release the amount of the petitioner in his account as shown in the following manner: Page no. 20 of 17 -:18:- Sh. Brij Nandan Vs. Yogdutt & Ors.
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S. Name Status Total Entitlement Release Amount
No amount
1 Brij Petitioner Rs. 1,30,309/ Rs. 1,30,309/
Nandan
42 In DAR bearing no. 46/DAR/14 titled as "Sh. Ram Sajan Vs.
Yogdutt & Ors." claimant is entitled to Rs. 3,16,563/ (Rupees Three Lacs Sixteen Thousand, Five Hundred and Sixty Three only) with interest.
43 The awarded amount be deposited by R3 with State Bank of India, Dwarka Court Complex Branch, Sector 10, Dwarka, New Delhi within 30 days from today in the respective names of the petitioners either directly or through RTGS or by NEFT mode (IFSC Code SBIN0011566) under intimation with proof of notice to the claimants & their counsel to the Nazir of this Court. Bank Manager of State Bank of India, Dwarka Court Complex, Sector10, New Delhi is directed to release the amount of the petitioner in his account as shown in the following manner: S. Name Status Total Entitlement Release Amount No amount 1 Ram Sajan Petitioner Rs. 3,16,563/ Rs. 3,16,563/ Page no. 20 of 18 -:19:- Sh. Brij Nandan Vs. Yogdutt & Ors.
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44 The beneficiaries shall furnish all the relevant documents for opening of the respective saving bank accounts. 45 The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Accounts of the beneficiaries.
46 Withdrawal from the aforesaid account shall be permitted to the beneficiaries after due verification and the Bank shall issue photo Identity Cards to the beneficiaries to facilitate identities. 47 No cheque books shall be issued to the beneficiaries without their permission of this Court.
48 The original fixed deposit receipts shall be retained by the Bank in the safe custody. However, the original Pass Book shall be given to the beneficiaries along with the photocopy of the FDRs. Upon the expiry of the period of each FDR, the Bank shall automatically credit the maturity amount in the Savings Accounts of the beneficiaries. 49 No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court. 50 On the request of the beneficiaries, Bank shall transfer the saving accounts to any other branch according to their convenience. 51 R2 shall inform the petitioners as well as their counsel through Page no. 20 of 19 -:20:- Sh. Brij Nandan Vs. Yogdutt & Ors.
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registered post that the cheques of the awarded amount are being deposited so as to facilitate the petitioners to know about their deposits in their accounts.
52 Copy of the award be supplied to both the parties at free of cost. Copy of this award be sent to the Nodal Officer of the Bank alongwith the Court stamped, copy of the photographs and signatures of the claimants. 53 Thus, the petition has been disposed of accordingly. 54 File be consigned to Record Room.
ANNOUNCED IN OPEN COURT
DATED: 15/07/2014
(1+1) (DEEPAK JAGOTRA)
PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
All pages signed DWARKA COURTS, NEW DELHI.
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