Delhi District Court
Manju D/O Sh. Sugan Ram vs ) Sh. Jagjeet S/O Sh. Raj Singh (Driver) on 22 March, 2012
-1-
IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT &
SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT
CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
(MACT Case No. 372/10/07)
Manju D/o Sh. Sugan Ram
R/o H. No. 169-A, Vikas Vihar, Prem Nagar, Delhi-110041
(Near Sector-22, Rohini, Delhi)
(petitioner being minor through her father and
natural guardian Sh. Sugan Ram) ---------Petitioner
Versus
1) Sh. Jagjeet S/o Sh. Raj Singh (Driver)
R/o Village Bigowa, Tehsil/P.S. Charkhi Dadri
Distt. Bhiwani (Haryana)
2) Sh. Prateek Patheja S/o Sh. Vijay Kumar Patheja (Owner)
R/o H. No. 287, Pocket E-19, Sector-3, Rohini,
Delhi-110085
3) The Oriental Insurance Company Ltd. (Insurance Co.)
Registered & Head Office A-25/27, Asaf Ali Road,
New Delhi-110002 ---------Respondents
Date of institution-----31-01-2007
Date of decision-------22-03-2012
(Application u/s 140 and 166 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:-
Minor petitioner Manju sustained simple injuries through the present petition claimed compensation of Rs. 5,00,000/- alongwith interest @15% p.a. on the ground that on 29.12.2006 at about 5.00 pm, the petitioner alongwith one Santosh (who is also injured) were coming on rickshaw thela of Uma Shankar Paswan from Begupur to Vikas Vihar with -2- cane of drinking water, but when the petitioner reached at near Dhruv Enclave, Sector-22, Rohini, Delhi, the offending vehicle no. DL-IV-7029 (RTV Mini Bus) coming from front side which was driven by respondent no. 1 in a rash and negligent manner, hit the rickshaw thela and the petitioner got grievous/serious head injury and fell on the road and the rickshaw thela also broken. The petitioner immediately taken to Braham Shakti Hospital by the passengers and persons collected on the road by the said RTV. The doctors of the said hospital got prepared a MLC bearing No. 1826/06, and advised to take away to other hospital and then the petitioner was brought to ESI Hospital, Basai Darapur, Delhi and this hospital also referred the case to Safdarjung hospital, New Delhi. The petitioner is under the continuous treatment of Safdarjung hospital as well as ESI Hospital, Basai Darapur. It is further stated that the offending vehicle was apprehended by the public and the driver of the offending vehicle was taken into custody by the police. Doctor of Braham Shakti Hospital declared the petitioner unfit for statement. On the statement of Uma Shankar Paswan, thela puller, a criminal case under section 279/337 IPC was registered against respondent no.1 vide FIR No. 2109/06 in police station Sultanpuri. It is further stated that the petitioner is a minor girl aged about 10 years and was unmarried at the time of accident. She was student of Vth Class in MCD School, Delhi. Her treatment is still continued from Safdarjung Hospital and ESI Hospital. She got grievous head injuries and got permanent disability due to this accident. It is further stated that her whole career has been spoiled and her future seems to be dark and the accident badly effected her studies. Petitioner through her father claimed compensation from the respondents under various pecuniary and non pecuniary heads.
-3-Respondents no. 1 and 2 in their joint written statement totally denied happening of an accident with their vehicle whereas respondent no. 3 insurance company though admitted existence of insurance policy in respect of offending vehicle but tried to avoid its liability on various technical grounds. Replications were filed on behalf of the petitioner in response to the written statements filed by the respondents in which the averments of the petition were reiterated. On the basis of pleadings of the parties, following issues were framed on 03.03.2008 by my Ld. Predecessor:
1) Whether on 29.12.2009 near Dhruv Enclave, vehicle No. DL-1V-7029 which was being driven rashly and negligently hit rickshaw and caused injuries to petitioner? OPP
2) Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP
3) Relief.
Father of petitioner in order to prove his case examined himself as PW-1 and filed his affidavit in evidence as Ex.PW1/A and further proved the MLC as Ex.PW1/1, OPD No. C/56427 of ESI Hospital as Ex.PW1/2, OPD card no. 78697 dated 29.12.2006 of Safdarjung Hospital as Ex.PW1/3, X-ray report from Safdarjung Hospital as Ex.PW1/4, OPD card dated 03.01.2007 as Ex.PW1/5, OPD card of Safdarjung Hospital dated 09.01.2007 as Ex.PW1/6, OPD card dated 16.09.2008 of Safdarjung Hospital as Ex.PW1/7, ESI OPD Card dated 30.12.2006 as Ex.PW1/8, OPD ticket dated 03.01.2007 as Ex.PW1/9, OPD card dated 03.01.2007 to 21.03.2007 as Ex.PW1/10, ESI OPD card dated 04.06.2007 to 08.06.2007 as Ex.PW1/10X, report of NCCT Head of Ganesh Diagnostic and Imaging -4- dated 04.01.2007 and 17.09.2008 as Ex.PW1/11 & Ex.PW1/12, OPD ticket of ESI bearing registration no. 87386 as Ex.PW1/13, photocopy of FIR as Ex.PW1/A1, photocopy of seizure memo of RTV and rickshaw thela as Ex.PW1/B, photocopy of driving licence of respondent no. 1 as Ex.PW1/C, photocopy of NOC of driving licence dated 18.04.2006 as Ex.PW1/D, photocopy of RC of offending vehicle as Ex.PW1/E, photocopy of inspection report of vehicle RTV as Ex.PW1/F, photocopy of policy no. 271501/31/2007/2895 as Ex.PW1/G, cash receipt no. 20611 of Rajeev Medicos and dated 23.07.2008 and 23.01.2008 and 16.05.2008 as Ex.PW/14 to Ex.PW1/16 respectively, receipt of Braham Shakti Hospital dated 29.12.2006 and receipt of Rs. 281/- are Ex.PW1/17 and Ex.PW1/18, progress report card as Ex.PW1/19 and copy of ration card as Ex.PW1/20. He further stated that due to the said accident her memory become weak and she is unable to work properly and her career has been spoiled and her future seems to be dark and she has suffered mental agony and pain due to the said accident. In the cross examination, PW-1 stated that his daughter was not kept in the hospital and she was discharged on the same day.
Petitioner further examined the eye witness of accident Sh. Sehdev Nishad S/o Sh. Khunkhun Nishad as PW-2, who in his affidavit in evidence Ex.PW2/A disclosed how and in which manner accident took place. He stated that on 29.12.2006 he was sitting on parchun shop which was away from the place of accident i.e. 50-60 steps from there. At about 5 pm the petitioner Manju alongwith Santosh were coming on a rickshaw thela, driven by Uma Shankar and when the same reached at the Dhruv Enclave, Sector-22, the offending vehicle no. DL-IV-7027 driven by the respondent no. 1 driver, hit the rickshaw thela. The said vehicle was going from Nangloi Phatak towards Rithala and the driver of the said vehicle i.e. -5- respondent no. 1 was driving his vehicle in a negligent manner and hit the said rickshaw from back side, due to that the petitioner fell on the road and received head injury and other injuries on her person. He alongwith other persons present at the spot removed the petitioner to Braham Shakti Hospital for treatment and got her admitted to hospital. The respondent no. 1 ran away from the spot after leaving the vehicle on the spot. He further stated that he used to visit the house of the petitioner from time to time to ask the condition of his child. In the cross examination, PW-2 stated that he knew Sh. Sugan Ram father of the petitioner since last 7-8 years as they were residing in the same locality. He further stated that he has not given any statement to the police nor police had interrogated him. Police met him in the hospital, but he had not informed them that he had seen the accident.
No evidence was led on behalf of respondent no. 1 & 2.
However, counsel for respondent no. 3 tender in evidence the verification report of the driving licence bearing No. 205996/Ms (A) in the name of Jagjit Singh issued from Imphal, DTO office. It is further stated that as per report this licence is fake and not issued to respondent no. 1 Jagjit Singh. He proved the report of DTO, Imphal alongwith the letter of Branch Manager and investigator report as collectively Ex.RW1/1 (running into 3 sheets).
I have heard counsel for parties and gone through the record. My decision on the above mentioned issues is as under:
Issue no. 1:-
PW-2 in his evidence disclosed how and in which manner accident took place. He specifically alleged that the driver of the offending -6- vehicle i.e. respondent no. 1 was driving his vehicle in a negligent manner and hit the rickshaw from back side, due to that the petitioner fell on the road and received injuries. Counsel for petitioner also placed on record certified copies of criminal case record to show that police after investigation found that accident took place due to fault and negligence of the respondent no. 1. No effective cross examination of the petitioner had taken place and I find nothing in his statement to discard his version. Respondent no. 1 & 2 also did not step into the witness box to prove their defence that accident was not caused by their vehicle. Accordingly, its adverse inference has to be taken against them.
It is not the case of the respondents that they had lodged any complaint to any higher authority against alleged false implication of respondent no. 1 in criminal case. It is also not their case that they had any enmity with petitioner or IO of the case which facilitated them to involve respondent no. 1 in the alleged false case. In absence of any effective cross examination of petitioner regarding the manner of accident, I find no ground to disbelieve the statement of PW-2 and it is held that accident had taken place due to rash and negligent driving of offending RTV bus by respondent no. 1 by which petitioner had suffered injuries. This issue is thus decided in favour of petitioner and against the respondents.
Issue no. 2:-
MLC and other medical papers produced on record shows that the petitioner sustained serious head injuries. As per own admission of father of petitioner, she was admitted in the hospital for one day only. Thereafter, petitioner continued to take treatment from the hospital as OPD patient and her last visit to the hospital is dated 17.09.2008 as per OPD card. Petitioner got treatment from govt. hospital free of costs but still she spent sum of Rs. 2213.5 paisa on medicines as per various bills & -7- receipts lying on record. No dispute regarding the correctness and genuineness of these bills is raised so the amount of these medical bills at Rs. 2,214/- (in round figure) is liable to be paid to the petitioner.
Petitioner was student of Vth Class in MCD School, Delhi. It is stated that her whole career has been spoiled and her future seems to be dark and the accident badly effected her studies. Though there is no evidence on record to point out that due to absence from school, she failed in examination or could not be promoted to next class but she must have suffered loss of studies due to absence from school for about one year. Accordingly, in such situation and keeping in view the standard in which she was studying, I treat her notional income at Rs. 15,000/- and she is granted loss of income i.e. notional income of Rs. 15,000/-.
It is alleged that sum of Rs. 50,000/- upon medicines, special diet and upon conveyance were incurred. This claim appears to be excessive and exorbitant so cannot be fully accepted. No proof of spending upon these items is brought on record though petitioner might have been taken to hospital in some conveyance. Though normally in case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc. is provided instead of or in addition to the normal food but it cannot be worth Rs. 20,000/- in a period of 2-3 months as claimed. Accordingly keeping in view the status and age of the petitioner, period of treatment, etc. I am of the view that maximum petitioner can be paid lump sum Rs. 10,000/- towards special diet and Rs. 20,000/- towards conveyance charges.
There is no certificate or document of any future treatment of the petitioner on record. In the examination in chief father of the petitioner -8- PW-1 stated that due to the said accident her memory become weak and she is unable to work properly and her career has been spoiled and her future seems to be dark and she has suffered mental agony and pain due to the said accident. During the course of arguments, counsel for the petitioner argued that at present also petitioner feels some headache and her memory also become weak and she require future treatment. Accordingly, keeping in view the age and extent of injuries, petitioner is entitled to sum of Rs. 25,000/- towards future medical expenses.
There is no certificate of any disability of petitioner on record. Judicial notice can be taken of the fact that due to grievous injuries normal human life is also affected. Even after recovery from injury, the original position hardly came in existence or restored for several months. Difficulty and inconvenience might have arisen to perform even daily personal routine acts due to physical immobility. Petitioner being a minor child must have suffered great pain and sufferings. She could not enjoy the amenities of life properly for few months and must have been deprived playing outside with other kids. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the status and condition of the petitioner, extent of his injuries etc., she is granted lump sum amount of Rs. 1,50,000/- towards pain & sufferings, inconvenience, mental agony and loss of amenities etc. Counsel for respondent no. 3 tendered in evidence the verification report of the driving licence bearing No. 205996/Ms (A) in the name of Jagjit Singh respondent no. 1 issued from Imphal, DTO office and argued that as per report this licence is found fake and not issued to respondent no. 1. He proved the report of DTO, Imphal alongwith the letter of Branch Manager and investigator report as collectively Ex.RW1/1. Hence -9- it is proved that at the time of accident, respondent no. 1 was having fake driving licence. In such situation, it is ordered that respondent no. 3 insurance company shall pay the entire compensation amount to the petitioner at first instance and then can get it recovered from respondent no. 2 through the execution proceedings on basis of the recovery rights.
In view of the above discussions, this issue is decided in favour of petitioner by holding that she is entitled to get the following total compensation from the respondent no. 3 who is given recovery rights to get the same recovered lateron from respondent no. 2:
a) Medical expenses----------------------------------Rs. 2,214/-
b) Loss of income i.e. notional income ---------Rs, 15,000/-
c) Special diet-------------------------------------------Rs. 10,000/-
d) Conveyance charges------------------------------Rs. 20,000/-
e) Future medical expenses------------------------Rs. 25,000/-
f) Pain and sufferings etc.--------------------------Rs.1,50,000/-
__________________ Total Rs. 2,22,214/-
Petitioner shall be entitled to interest at the rate of 7.5% p.a. on this amount from the date of institution of the petition i.e. 31.01.2007 till realization.
Issue no. 3 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 3 insurance company is directed to pay sum of Rs. 2,22,214/- to the petitioner alongwith interest at the rate of 7.5 % p.a. from 31.01.2007 till this amount is fully paid. After -10- making payment to the petitioner, respondent no. 3 can get it recovered from respondent no. 2 by filing an execution petition. Insurance company to pay further sum of Rs. 21,000/- as counsel fee and Rs. 3,000/- as out of pocket expenses to counsel for petitioner Sh. P.K. Dass, Adv., Enrollment no. D-2231A/04 by preparing separate cheques in the name of counsel as per the judgment of Hon'ble Mr. Justice J.R. Midha.
It is further ordered that the total compensation amount be deposited in FDR in the name of minor petitioner till the age of her majority with liberty to withdraw monthly interest by her mother. The FDR be got prepared from Union Bank of India, Sector-9, Delhi or any other bank as per the choice of father of the minor petitioner. No premature encashment of FDRs is permissible without permission of the court. No loan or advance shall be granted to the petitioner on the FDR. Insurance company is directed to prepare separate cheques of the compensation amount as per above order. Copy of this judgment be given to petitioner and file be consigned to record room.
Announced in the open (D.K. MALHOTRA)
Court on 22.03.2012 JUDGE, MACT (OUTER-II)
DELHI