Delhi District Court
Sh.Ashok Kumar vs New Delhi Municipal Corporation(Ndmc) on 30 October, 2014
1
IN THE COURT OF SH. HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.74/13
DATE OF INSTITUTION:02.01.2012
Sh.Ashok Kumar
S/o Sh. Roop Chand
R/o VPO Garhi Sablu
PS& PO Loni, Dist. Ghaziabad,
Uttar Pradesh ..................Petitioner
Versus
1. New Delhi Municipal Corporation(NDMC)
Through its Secretary
3 Floor, Palika Kendra
rd
Sansad Marg, New Delhi.
2. Sh. Shyam Lal
S/o Sh. Mamchand
R/o K125/26, Dakshin Puri,
Ambedkar Nagar, Delhi
3. Oriental Insurance Company Ltd.
UGF 8, 11, 12 & 13
Arunachal Building,
19, Barakhamba Road,
New Delhi110001 ........Respondents
Final Arguments heard on : 17.10.2014
Award reserved for : 30.10.2014
Date of Award : 30.10.2014
2
AWARD
1. Vide this judgment cum award I proceed to decide the petition filed U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petition are that the petitioner is in the employment of respondent no.1 as Beldar/Helper and on 02.12.2011 the petitioner had gone to supply water on the water tanker no.DL1GB6620 owned by respondent no.1 and which was being driven by respondent no.2 and at about 11.00 AM he was helping the driver of tanker i.e. respondent no.2 in reversing the vehicle out of the gate of bunglow no.2, Pandit Pant Marg, New Delhi and in the meantime one qualis bearing no.DL2FBP0888 stopped on the road to make some enquiry and the petitioner asked respondent no.2 to stop reversing the vehicle and while the petitioner was explaining directions to the driver of qualis, the respondent no.2 in a negligent manner without waiting for the further directions from the petitioner, started reversing the water tanker and hit the petitioner as a result of which petitioner sustained injuries. The petitioner was taken to Dr.RML Hospital.
3. It is stated that the petitioner was 45 years of age at the time of accident and he was in government employment. It is stated that the accident 3 occurred due to rash and negligent driving of the offending vehicle by respondent no.2, owned by respondent no.1 and insured with respondent no.3 and as such all the respondents are jointly and severally liable to pay compensation. It is prayed that Rs.Twenty One Lacs Fifty Thousand alongwith interest @ 18% per annum be awarded as compensation in favour of petitioner against the respondents.
4. Respondents no.1 and 2 the driver and owner have not filed reply.
5. Respondent on.3 has filed written statement and has contested the petition on various grounds. The averments made on merits are denied. It is stated that the vehicle no. DL01GB6620 was insured with respondent no.3 vide policy no.21560031/2011/12905 valid for the period we.f. 14.02.2011 to 13.02.2012. It is denied that respondent no.3 is liable to pay compensation.
6. From the pleadings of parties following issues were framed on 19.03.2014:
1.Whether the petitioner sustained injuries in the accident which occurred on 2.12.2011 at about 11.00 AM near Bunglow no.2, Pandit Pant Marg, New Delhi caused by rash and negligent driving of vehicle no.DL01GB6620 driven by respondent no.2, owned by respondent no.1 and insured with respondent no.3?OPP.
2.Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.4
7. In support of his claim petitioner examined himself as PW1. PW1 tendered in evidence his affidavit Ex.PW1/A and proved the copies of his office identity car Ex.PW1/1, discharge summary and prescriptions Ex.PW1/2(colly), bills Ex.PW1/3(colly), salary certificate mark A and copy of PAN card Ex.PW1/4.
8. Petitioner also examined Ms. Purnima Saxena, Head Assistant, NDMC as PW2 who proved the service record of Sh. Ashok Kumar as PW2/1(colly). Petitioner thereafter closed his evidence.
9. On the other hand respondent no.3 examined Ms. Pallavi Thakral, Administrative Officer of the insurance company as R3W1. R3W1 tendered in evidence her affidavit Ex.R3W1/1 and proved the copies of policy Ex.R3W1/A(colly), copy of notice under Order 12 Rule 8 CPC Ex.R3W1/B and postal receipts Ex.R3W1/C1 to Ex.R3W1/C2.
10.I have heard the Ld. counsel for the parties and perused the record. My findings on specific issues are as follows:
ISSUE NO.1
11.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to rash and negligent driving by respondent no.2, the driver of offending vehicle no.DL01GB6620.
12.To determine the negligence of driver of offending vehicle it has been 5 held in National Insurance Company Ltd. V/s Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
13. The case of the petitioner is that the petitioner is in the employment of respondent no.1 as Beldar/Helper and on 02.12.2011 the petitioner had gone to supply water on the water tanker no.DL1GB6620 owned by respondent no.1 and which was being driven by respondent no.2 and at 6 about 11.00 AM he was helping the driver of tanker i.e. respondent no.2 in reversing the vehicle out of the gate of bunglow no.2, Pandit Pant Marg, New Delhi and in the meantime one qualis bearing no.DL2FBP0888 stopped on the road to make some enquiry and the petitioner asked respondent no.2 to stop reversing the vehicle and while the petitioner was explaining directions to the driver of qualis, the respondent no.2 in a negligent manner without waiting for the further directions from the petitioner, started reversing the water tanker and hit the petitioner as a result of which petitioner sustained injuries. The petitioner was taken to Dr.RML Hospital. It is stated that the case vide FIR no.208/11, under Section 279/338 IPC was registered at PS Parliament Street. The petitioner appeared in the witness box as PW1 and adduced evidence by way of affidavit Ex.PW1/A. In his affidavit Ex.PW1/A the petitioner has reiterated the manner of accident as stated in the claim petition. Respondents no.1 and 2 have not preferred to put any question to petitioner in the crossexamination. In the crossexamination by respondent no.3 the petitioner/PW1 stated that the vehicle which had enquired about way from him was standing on the road and he had gone out of the bunglow where he had gone to supply water to tell the way to driver of the said vehicle and at that time the offending vehicle was in the bunglow where he had gone to supply water. PW1 7 further stated in the crossexamination that after telling the driver of the other vehicle he came back for helping the driver of tanker and was helping the driver of offending vehicle in taking the vehicle in reverse direction. In the crossexamination of petitioner/PW1 the respondent no.3 has given suggestion to the effect that the accident took place due to negligence of petitioner which was denied by petitioner. Apart from giving suggestion to the petitioner/PW1 in the crossexamination to the effect that the accident took place due to negligence of petitioner, respondent no.3 has not adduced any evidence to corroborate its contention.
14.Police has filed Accident Information Report(AIR) in this case and alongwith AIR police has filed copy of final report under Section 173 Cr.PC, copy of MLC of petitioner prepared at Dr. RML Hospital, copy of FIR no.208/11, under Section 279/337 IPC, PS Parliament Street, copy of arrest memo of respondent no.1, copy of site plan, copy of mechanical inspection report of vehicle no.DL1GB6620, copy of seizure memo of tanker no.DL1GB6620, copy of insurance policy of offending vehicle, copy of verification report of RC of offending vehicle, copy of verification report of driving licence of respondent no.2, copy of driving licence of respondent no.1. As per final report under Section 173 Cr. PC respondent no.1 has been charge sheeted for the offences under Section 279/338 IPC. As per FIR case was registered on the basis of complaint of 8 petitioner wherein he has reiterated the manner of accident as stated in the claim petition. Respondents have not proved any other version of he accident. Thus in view of the testimony of petitioner and documents on record, the negligence of respondent no.2 has been prima facie proved. ISSUE NO.2
15.As the negligence of driver of offending vehicle has been proved the petitioner is entitled to compensation.
COMPENSATION MEDICINES AND MEDICAL TREATMENT
16.The case of the petitioner is that after the accident he was taken to Dr.RML Hospital where his MLC was prepared and thereafter he was taken to Max Healthcare Super Speciality Hospoital where he remained admitted from 02.12.2011 and was discharged on 11.12.2011 and thereafter he has undergone further treatment at Max Healthcare Super Speciality Hospital. In the discharge summary of Max Healthcare Super Speciality Hospoital Ex.PW1/2 the diagnosis is mentioned as "Fracture shaft femur right with head injury" and the course in the hospital is mentioned as "patient was admitted in on 02.12.2011 and after pretimnory investigations and PAC was operated on 07.12.2011". The petitioner has filed duplicate credit invoice Ex.PW1/3(colly) in which it is mentioned that the patient is referred by NDMC. In the crossexamination 9 the petitioner/PW1 stated that he was reimbursed expenditure on treatment by NDMC. As the treatment expenses of the petitioner has been reimbursed by his employer, hence the petitioner is not awarded any amount towards medicines and medical treatment. PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
17.It has been held in Divisional Controller, K. S. R. T. C Vs Mahadeva Shetty and another, AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for less of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver(1969 1 All. E. R. 555) Lords Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monitory assessment."
18.The case of the petitioner is that after the accident he was taken to Dr.RML Hospital where his MLC was prepared and thereafter he was taken to Max Healthcare Super Speciality Hospoital where he remained admitted from 02.12.2011 and was discharged on 11.12.2011 and thereafter he has undergone further treatment at Max Healthcare Super Speciality Hospital. In the discharge summary of Max Healthcare Super 10 Speciality Hospoital Ex.PW1/2 the diagnosis is mentioned as "Fracture shaft femur right with head injury" and the course in the hospital is mentioned as "patient was admitted in on 02.12.2011 and after pretimnory investigations and PAC was operated on 07.12.2011". Looking at the nature of injuries sustained by the petitioner, period of hospitalization and extent of treatment the petitioner is awarded a sum of Rs.40,000/(Rs.Forty Thousand only)for pain and suffering.
19. It is stated that petitioner was 45 years of age at the time of accident and was in government service. Looking at the nature of injuries notice can be taken of the fact that on account of injuries sustained, the petitioner may not have been able to perform his duties towards his family and may not have been able to enjoy the amenities of life. Hence, petitioner is awarded Rs.10,000/ towards loss of amenities of life. CONVEYANCE, SPECIAL DIET AND ATTENDANT CHARGES
20. In para 4(3) of affidavit Ex. PW1/A the petitioner has stated that he spent Rs.5 Lacs on medicines, special diet, physiotherapy, special conveyance, attendant charges and special equipment like crutches walker etc. The contention of counsel for respondent no.3 is that the petitioner has not proved that he has incurred any expenditure on conveyance. The petitioner has not filed documents regarding expenditure on conveyance. However notice can be taken of the fact that 11 as per case of petitioner after the accident he was admitted in RML hospital and thereafter he has taken subsequent treatment from Max Super Speciality Hospital. Looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that petitioner might not have been able to drive of his own or to use public conveyance and might have have hired services of private conveyance for treatment and might have incurred expenditure on the same. In the circumstances, a sum of Rs. 5,000/(Rs.Five Thousand only) would be just and proper for conveyance and is awarded accordingly.
21. In para 4(3) of affidavit Ex. PW1/A the petitioner has stated that he spent Rs.5 Lacs on medicines, special diet, physiotherapy, special conveyance, attendant charges and special equipment like crutches walker etc. The contention of counsel for respondent no.3 is that the petitioner has not proved that he was advised special diet. Although the petitioner has not proved the expenditure on special diet, however, looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein,vitamins and minerals for speedy recovery and might have incurred expenses on the same. Thus the petitioner is awarded a sum of Rs.5,000/ for special diet.
22. In para 4(3) of affidavit Ex.PW1/A the petitioner has stated that he spent 12 Rs.5 Lacs on medicines, special diet, physiotherapy, special conveyance, attendant charges and special equipment like crutches walker etc. Although in para 4(3) of the affidavit Ex.PW1/A the petitioner has stated that he incurred expenditure on attendant, however, the petitioner has neither mentioned as to who was hired by him as attendant, duration of hiring attendant and the amount spent on the same. In the circumstances no amount is awarded towards attendant charges.
LOSS OF INCOME
23.In the claim petition the petitioner has stated that at the time of accident he was working as Helper/Beldar in NDMC. In para 4(4) of affidavit Ex.PW1/A the petitioner has stated that he suffered loss of Rs.1.5 lacs due to non payment of salary of 2 ½ months and loss of leave. In the affidavit Ex.PW1/A the petitioner has not specified the duration of leave taken by him on account of this accident. The petitioner examined Ms.Purnima Saxena, Head Assistant from NDMC as PW2 who proved the service record of petitioner Ex.PW2/1(colly) and stated that the petitioner had taken commuted leave(HPL) from 02.12.2011 to 29.02.2012 and after availing leave he joined duties on 01.03.2012 and at the time of proceeding on leave Sh.Ashok Kumar had 173 HPL in his credit and as per record brought by her Sh. Ashok Kumar was not paid salary for the month of January 2012. On 17.10.2014 the petitioner made 13 a statement before the court that he has received entire wages for the period of leave including for the month of January 2012. As per testimony of PW2 the petitioner had availed medical leave(HPL) from 02.12.2011 to 29.02.2012 and as per statement of petitioner recorded on 17.10.2014 the petitioner has received entire wages for the period of leave.
24. In Ashwani Kumar vs Oriental Insurance Co.Ltd. & Ors. MAC APP. 1103/2011, Hon'ble High Court has held that:
"10.Admittedly, the Second Respondent took leave on account of his incapacity to attend to his duties because of the injuries suffered in the accident. He admitted that he was paid the salary for the leave taken by him. The Second Respondent lost leave for a period of six months, which he could have availed for other purposes. Although, the Second Respondent did not suffer any financial loss but loss of leave which he may be entitled to encash on year to year basis or at the time of his superannuation, has to be compensated in terms of money."
25. The petitioner has not proved that he suffered loss of wages on account of this accident. The petitioner has not succeeded in proving that he suffered loss of income and that wages were deducted from his salary or that he suffered loss of leave which were encashable at any stage of his career. Hence no amount is being awarded for loss of income.
26.The petitioner has not proved that he has suffered any permanent disability or the nature of injuries sustained by him were such that on 14 account of said injuries, he may not be able to perform his avocation in future or his efficiency will be reduced and his capacity to earn will be affected. In the circumstance, no amount is being awarded on account of future loss of income.
The total compensation is assessed as under:
Medicines and Medical treatment : NIL
Pain and suffering and loss of
Amenities of life : Rs.50,000/
Conveyance and Special Diet : Rs.10,000/
Attendant Charges : NIL
Loss of Income : NIL
TOTAL : Rs.60,000/
RELIEF
27. The contention of counsel for petitioner is that the petitioner contributed in causing the accident. It is to be noted that as per the case of petitioner he was working as Helper/Beldar in NDMC and was helping the driver/respondent no.1 in reversing the vehicle. Respondent no.2 has not put any question to petitioner/PW1 In the crossexamination. Although respondent no.3 has pleaded that the petitioner contributed in causing the accident but respondent no.3 has not proved that the respondent no.2 who was driving the vehicle was reversing the vehicle cautiously and as per directions of petitioner who was helping him in getting the vehicle 15 reversed and respondent no.2 had acted in diligent manner in avoiding the accident. Respondent no.3 has also not proved that the petitioner despite having seen the vehicle being reversed towards his direction did not take adequate care to avoid the accident and in any manner contributed in causing the accident. In the circumstances, I find no merits in the contention of counsel for respondent no.3 that the petitioner contributed in the causing the accident.
28.The petitioner is awarded a sum of Rs.60,000/(Rs.Sixty Thousand only) with interest @ 7.5% per annum from the date of filing of petition till its realisation including, interim award, if any already passed against the respondents and in favour of the petitioner. The entire amount be released to the petitioner.
29.The respondent no.3 shall deposit the award amount directly in the bank account of the claimant at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
30.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court 16 Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
31.The respondent no.3 shall deposit the award amount alongwith notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 07.01.2015.
APPORTIONMENT OF LIABILITY:
32. The plea of counsel for respondent no.3 is that the respondents no.1 and 2 have not supplied any valid permit possessed by the offending vehicle at the time of accident. Respondent n.3 has examined Ms. Pallavi Thakral, Administrative Officer of the insurance company as R3W1.
R3W1 adduced evidence by way of affidavit Ex.R3W1/1 and in para 2 of affidavit Ex.R3W1/1 the R3W1 has stated that the vehicle bearing no.DL01GB6620 Ashoka Leyland Water Tanker was insured with the respondent no3 vide policy no.215600931/2011/12906. In para 4 of affidavit Ex.R3W1/1 the R3W1 has further stated that the owner of 17 offending vehicle was not having valid permit on the date of accident. It is contended by respondents no.1 and 2 that the offending vehicle is owned by respondent no.1 which is an entity of State and used as water tanker and is not used for any commercial purpose and no permit is required for the offending vehicle.
33. Section 66(3) of Motor Vehicle Act, 1988 provides:
"The provisions of sub-section(1) shall not apply-
(a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprises;
(b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes;
34. Respondent no.3 has not proved that the offending vehicle was used in contravention of provisions of Section 66(3) of Motor Vehicle Act, 1988. Thus, respondent no. 1 being the owner, respondent no.2 being the driver and respondent no.3 being the insurer are held jointly and severally liable. Respondent No.3 being the insurer is directed to deposit the award amount within 30 days with interest @ 7.5% per annum from the date of filing of petition till its realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case 18 the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. An attested copy of award be given to the parties(free of cost).
File be consigned to Record Room.
Announced in the open court (Harish Dudani) on 30.10.2014. Judge: MACT1 : New Delhi