Delhi District Court
Sh. Jai Ram Yadav vs Sh. Vikas Kumar on 17 November, 2018
MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 4966/16 (Old MACP No. 4236/11)
1. Sh. Jai Ram Yadav,
S/o Sh. Sardar Mal Yadav,
R/o Village Kuned,
TehKotputli,
District Jaipur,
Rajasthan.
2. Sh. Veerpal Singh,
S/o Sh. Ram Swaroop Singh,
R/o H.No. G4/180,
Street No. 4, 5th Pusta,
Soniya Vihar,
Sabhapur,
Delhi.
..........Petitioners
VERSUS
1. Sh. Vikas Kumar,
S/o Sh. Krishan Pal Singh,
R/o.Village Luthra District,
Bagpat,
UP (Driver)
2. Assistant Engineer (Auto)
Head Quarter Fire Service,
Connaught Place,
New Delhi (Registered Owner)
............Respondents
Date of Institution : 11.03.2011 Date of Arguments : 01.11.2018 Date of Award :17.11.2018 Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 1 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 APPEARANCES: Sh. Deepak Khatri, Adv for injured Jai Ram Yadav.
Sh. Ram Kumar Prabhakar, Adv for injured Veerpal.
Sh. Manoj Rana, Adv for respondent no. 1.
Respondent no. 2 is exparte.
Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioners are seeking compensation in the wake of Detailed Accident Report (DAR) filed by police corresponding to the investigation carried out in FIR No. 420/10 U/s 279/337 IPC registered at PS. Alipur with regard to Motor Vehicular Accident which occurred on 28.12.2010 at 12:40 pm, near Village Khampur, Delhi, involving vehicle i.e. Fire Brigade bearing registration no. DL1GB5743 (alleged offending vehicle) being driven by respondent no. 1 in rash and negligent manner. Detailed Accident Report (hereinafter called DAR) filed by police, was treated as claim petition under Section 166(4) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act').
2. According to DAR, on 28.12.2010, the petitioner namely Veer Pal and Jai Ram Yadav, were going from Karawal Nagar to Kundli, District Sonepat, Haryana on Tata 407 tempo bearing registration no. DL1LM5357. The said tempo was being driven by Veer Pal and Jai Ram Yadav was Helper on the said tempo at the time of accident. At about 12:40 pm, when they reached at Village Khampur, near Petrol Pump, Delhi, one vehicle i.e. Fire Brigade bearing registration no. DL1GB5743 which was being driven Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 2 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 by its driver at very high speed and in rash and negligent manner, came from wrong side and hit against the aforesaid tempo from the front side. As a result thereof, they both sustained grievous injuries. They were removed to SRHC Hospital, Narela, Delhi, where they were medically examined. The aforesaid vehicle i.e. Fire Brigade was found to be owned by respondent no. 2 and same was found to be uninsured at the time of accident.
3. It may be noted here that the petitioner namely Jai Ram Yadav has also filed separate claim petition on 27.07.2011, wherein he averred that he was aged 40 years; he was working as Helper and was doing loading and unloading work and was earning Rs. 6,500/ per month at the time of accident. He also averred that he had sustained multiple grievous injuries including compound fracture in his both legs and his right eye was damaged and was removed. He remained admitted in SRHC Hospital from 28.12.10 till 08.01.2011.
4. In his WS, the respondent no. 1 i.e. driver has raised preliminary objections that the petitioners have concealed the material facts and have filed the present claim petition in order to extort money from him. On merits, he has simply denied the averments made in the petition and has prayed for its dismissal thereof.
5. Although, the respondent no. 2 put appearance before the Tribunal on 11.03.2011 at the time of filing of DAR through its Authorized Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 3 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 Representative, however, it failed to file its WS despite grant of sufficient opportunities. Consequently, its defence was struck off and it was proceeded against exparte vide order dated 05.12.11 passed by my Ld. Predecessor.
6. From pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 14.02.2012:
1. Whether Sh. Jairam Yadav s/o Sh. Sardar Mal Yadav, who was travelling in TATA 407 no. DL1LM 5357 suffered injuries due to road accident on 28.12.2010 at about 12:40 pm, on way from Karawal Nagar to Kundli, District Sonepat, Haryna, within the jurisdiction of PS. Alipur due to rash and negligent driving of truck bearing No. DL1GB 5743 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.
7. Before proceeding further, it is relevant to bring on record the fact that inadvertently, issues in respect of another injured namely Veer Pal could not be framed in the present case. Hence, it is not only appropriate but necessary to frame the issues in respect of aforesaid injured before passing the award. This fact was taken note of while hearing final arguments and both the sides, in all fairness, agreed that since they have Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 4 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 already led their respective evidence on the basis of pleadings available on record, there is no objection in case the issues are Reframed by Claims Tribunal while passing the award. Accordingly, the issues are reframed as under:
1) Whether the injured persons namely Jai Ram Yadav and Veer Pal suffered injuries in road traffic accident on 28.12.2010 at about 12:40 pm, on way from Karawal Nagar to Kundli, District Sonepat, Haryna, within the jurisdiction of PS. Alipur due to rash and negligent driving of truck bearing No. DL1GB 5743 being driven by respondent no. 1?OPP.
2) Whether the injured persons are entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
8. In support of their claims, the petitioners have examined three witnesses i.e. Sh. Jai Ram as PW1, Sh. Veer Pal as PW1(SicPW2) and PW2 Sh. Mata Din(SicPW3). They closed PE on 04.12.14 through their counsel. On the other hand, no evidence was adduced by either of the respondents. RE of respondent no. 1 was closed on 02.03.15 through his counsels. It may be noted here that respondent no. 1 did not raise any objection as to the admissibility of disability certificate issued in respect of injured Jai Ram Yadav, as mentioned in proceedings dated 04.12.2014 and in view of his said no objection, said disability certificate was exhibited as Ex.P2.
Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 5 of 28MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018
9. I have already heard the arguments addressed by ld counsels for the parties. Both the sides were directed to submit their respective submissions in Form IV B, vide order dated 01.11.18 but they have not submitted the same on record till date. My findings on the issues are as under: ISSUE NO. 1.
10. For the purpose of this issue, the testimonies of PW1 Sh. Jai Ram Yadav and PW1(SicPW2) Sh. Veerpal Singh (injured persons in the present case) are relevant. They have deposed on identical lines in their evidence by way of their respective affidavits(Ex. PW1/A) to the effect that on 28.12.2010, they were going from Karawal Nagar to Kundli, District Sonepat, Haryana on Tata 407 Tempo bearing registration no. DL1LM 5357. The said tempo was being driven by Veer Pal and Jai Ram Yadav was Helper on the said tempo at the time of accident. At about 12:40 pm, when they reached at Village Khampur, near Petrol Pump, Delhi, one vehicle i.e. Fire Brigade bearing registration no. DL1GB5743 which was being driven by its driver at very high speed and in rash and negligent manner, came from wrong side and hit against the aforesaid tempo from the front side. As a result thereof, they both sustained grievous injuries. They were removed to SRHC Hospital, Narela, Delhi, where they were medically examined. FIR No. 420/10 U/s. 279/337 IPC was registered at PS. Alipur.
Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 6 of 28MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018
11. PW/injured Sh. Jai Ram Yadav (PW1) has relied documents Ex. PW1/1 to Ex. PW1/14 except document Ex. PW1/8. During his cross examination on behalf of respondent no. 1, he deposed that on the unfortunate day, they were going from Karawal Nagar to Kundli District, Haryana(Maal lene k liye ja rahe the store se). They were going there for the first time. He further deposed that the goods were to be brought to Kundli Sonepat to the Godam of Malkin at Karawal Nagar who was the owner of the vehicle in which they were travelling. He again said the Gadi was of Matadin and godam was of Dusra Aadmi. His duty was to help in the loading and unloading of the goods in the vehicle. He was not aware as to which godam at Karawal Nagar the goods were to be brought but they were to be brought to Karawal Nagar. He did not remember the name of said godam. He denied the suggestion that accident was not caused due to rash and negligent act of driver of the alleged offending vehicle. He further denied the suggestion that the accident was caused due to rash and negligent driving of vehicle on which he was working as Conductor. He deposed that the accident was caused by the driver of the offending vehicle by coming from the wrong side. The driver of the offending vehicle was coming on the wrong side for about 1 km. They were in position to see that the driver of the offending vehicle was coming on the wrong side while they were seeing it from a distance of less than 1 km. He volunteered that 'hamne bachane ki bahut koshish ki, usne takkar maar di'. The Fire Brigade vehicle was not blowing siren while coming on wrong side. He did not remember what was the season at the time of accident. He did not Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 7 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 remember whether he was wearing woolen clothes or cotton clothes at the time of accident. It was day time. He further deposed that on that day, there was sunlight and there was no Kohra. The offending Fire Brigade kept on coming on wrong side despite giving horn. He replied to the court question that due to the impact of accident, he became unconscious. He volunteered that he did not see whether people had gathered there after the accident or the traffic was stopped because of the accident. He deposed that the police had recorded his statement at the spot of accident. He deposed that the offending vehicle was coming on the wrong side because there were two side of the road, one meant for coming of vehicle and one meant for going of vehicle on which they were moving. The offending vehicle was coming on the side which was meant for their going. Respondent no. 2 did not cross examine this witness, it being exparte.
12. PW/injured Sh. Veerpal Singh has relied upon the following documents: Sr. No. Description of Remarks documents
1. Copy of DAR Ex. PW1/1(colly) 2. Copy of his DL Ex. PW1/2
3. His treatment record Ex. PW1/3
13. During his crossexamination on behalf of respondent no. 1, he deposed that he was running the vehicle on extreme left of the road. The offending vehicle was on the extreme corner of the road on left side in front Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 8 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 of his vehicle. He came to know about the registration number of the offending vehicle after the accident. He came to know that the offending vehicle was Fire Brigade vehicle prior to the incident. The offending vehicle was blowing siren that is how he came to know that it was Fire Brigade vehicle. He saw the offending vehicle from distance of about 20 meter. As there were other vehicles on right side of his vehicle and for that reason, he could not move his vehicle in any other direction. He denied the suggestion that the accident had taken place due to his own negligence as he fell asleep while driving his vehicle. Respondent no. 2 did not crossexamine this witness, it being exparte.
14. It is evident from the testimonies of PW1 & PW2 that the respondents, more particularly respondent no. 1 could not impeach their testimonies through litmus test of crossexamination and said witnesses are found to have successfully withstood the test of crossexamination. Even otherwise, PW1 & PW2 themselves are the injured persons having sustained injuries due to the accident in question. There is no reason as to why they would depose falsely against respondent no.1. This is more so when the respondents have not led any evidence to controvert the case of petitioners, as proved by them during the course of inquiry.
15. Moreover, FIR No. 420/10 (supra)(Ex. PW1/2) is also shown to have been registered on the statement of PW Veerpal Singh. The contents of said FIR would show that the complainant Veerpal Singh (injured before Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 9 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 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 uncontroverted testimonies of both these witnesses made on oath. The said FIR is shown to have been registered on 28.12.2010 i.e. on the date of accident itself. Thus, FIR in question was promptly lodged with regard to the accident in question. Hence, there is no possibility of any false implication of driver of aforesaid Fire Brigade or false involvement of the said vehicle in this case.
16. It is pertinent to note that the respondent no.1/driver of aforesaid Fire Brigade, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box 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 Fire Brigade bearing no. DL1GB5743 by him.
17. There is no substance in the argument raised on behalf of respondent no. 1 that the testimonies of both the injured persons on the aspect of accident in question being caused due to negligence on the part of vehicle no. DL1GB5743, should not be believed. It is relevant to note that PW1 Jai Ram Yadav has categorically testified that the accident was caused by driver of said vehicle while coming from wrong side. No doubt, he has admitted that he had seen the offending vehicle coming from wrong Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 10 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 side from a distance of 1 km and they were in a position to see the said vehicle but he explained that they had tried to save themselves, but the vehicle hit against them. There is no merit in the other limb of argument raised on behalf of said respondent that accident is claimed to have taken place in day light and there was ample time and opportunity available to injured persons/victims and vehicle could not have been driven at high speed as it was a busy road where accident took place. The reason is quite obvious that even if the driver of the offending vehicle had given siren while driving it and it was broad day light, the fact remains that the said vehicle was coming on wrong side, which fact has not been disputed from the side of said respondent and the very act of vehicle being driven on wrong side of road, itself is sufficient to infer negligence in driving the vehicle on his part. Hence, I am of the considered opinion that the testimonies of both the injured persons/victims are believable and need to be taken into consideration while deciding the issue of accident being caused due to rash and negligent driving of vehicle no. DL1GB5743 by respondent no. 1.
18. Not only this, the respondent no. 1 namely Vikas Kumar (accused in State case) has been charge sheeted for offences punishable U/s 279/337/338 IPC & 146/196 M.V. Act 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 Fire Brigade bearing registration no. DL1GB5743 by him. Same would also point out towards rash and negligent driving of aforesaid Fire Brigade Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 11 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 by respondent no. 1.
19. Not only this, copies of MLCs (Ex. PW1/3 colly) of Sh. Jai Ram and Sh. Veerpal of SRHC Hospital, Narela, Delhi, would reveal that they had been removed to said hospital on 28.12.2010 at 1:25 pm with alleged history of Road Traffic Accident (RTA). It is mentioned in their MLCs that they had 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 aforesaid documents from the side of respondents including insurance company.
20. Further, copy of mechanical inspection report dated 30.12.2010 (Ex. PW1/6) of Fire Brigade No. DL1GB5743, would show fresh damages i.e. its front bumper was damaged from right side; its front body/cabin was damaged from left side; its left side headlight and indicator light was damaged; its front grill damaged; its front left side windscreen glass was broken; its front left side wheel road spring was damaged from rear side. Said document has not been disputed by the respondents and corroborates the ocular testimonies of PW1 & PW2 to the aforesaid extent.
21. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of pre ponderence of probabilities that they had sustained grievous injuries in the road accident which took place on 28.12.2010 at Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 12 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 12:40 pm, near Village Khampur, Delhi, due to rash and negligent driving of Fire Brigade bearing no. DL1M4398 by respondent no. 1.
ISSUE NO. 2.
22. 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.
Compensation in respect of injured Jai Ram Yadav MEDICAL EXPENSES
23. PW Sh. Jai Ram Yadav i.e. one of the injured in the present case, has deposed in his evidence by way of affidavit(Ex. PW1/A) that after the accident, he was removed to SRHC Hospital, Delhi. Thereafter, on the same day, he was referred to LNJP Hospital, where he was operated for multiple injuries and compound comminuted fracture on his both legs and he was discharged on 08.01.2011. He deposed to have spent more than Rs. 60,000/ on his treatment. Respondent no. 1 did not crossexamine this witness on this aspect at all. Respondent no. 2 did not crossexamine this witness, it being exparte.
24. The petitioner/injured has filed medical bills only to the tune of Rs. 16,045/ in all (which are part of DAR). It is quite evident that the Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 13 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have not led any evidence in rebuttal as well. Accordingly, a sum of Rs. Rs. 16,045/ is awarded to the petitioner under this head.
Loss of income
25. PW1 Sh. Jai Ram Yadav i.e. injured himself has deposed in his evidence by way of affidavit(Ex. PW1/A) that at the time of accident, he was working as Helper and was getting monthly salary of Rs. 6,500/ and was employed with Mr. Matadin(PW2). Respondent no. 1 did not cross examine this witness on this aspect at all. Respondent no. 2 did not cross examine this witness, it being exparte.
26. PW2(sicPW3) Sh. Matadin, who is claimed to be the employer of Sh. Jai Ram Yadav, deposed in his evidence by way of affidavit (Ex. PW2/A) that Jai Ram Yadav was his employee and he used to pay him Rs. 6,500/ per month as salary and he was earning Rs. 6,000/ to Rs. 8,000/ per month in addition to salary, on account of overtime, loading and unloading. He further deposed that due to the accident, Jai Ram Yadav had lost his right eye and had also sustained fracture on his both legs and due to said reason, he was not able to join his duties thereafter. During his crossexamination on behalf of respondent no. 1, he deposed that the petitioner was working as driver from the last one or half year, however, he did not have any documentary proof in respect of the same. He used to pay Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 14 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 Rs. 6,500/ in cash to the petitioner, however he did not have any document/receipt of the same. Respondent no. 2 did not crossexamine this witness, it being exparte.
27. The discharge summary (which is part of Ex. PW1/9 colly) of LNJP Hospital, Delhi in respect of petitioner/injured, would reveal that he remained admitted in the said hospital from 28.12.10 till 08.01.11. Said treatment record would also show that he had sustained fracture hip dislocation and fracture of both legs. Not only this, he also sustained total globe perforation extended to the right brow and root of the nose. Surgery was performed upon him on 29.12.10. Said treatment record would also show that case of said injured is that of bilateral high danctal region with internal fixator in both lower limbs. He is shown to have sustained permanent disability of 30% in relation to right eye, 8.2% permanent disability in relation to left leg and 4.2% permanent disability in relation to right hip. In all, he is shown to have sustained permanent physical impairment to the tune of 42.4% as per Disability Certificate(Ex. P2) issued by Medical Board of Government BDM Hospital, Kotputli, Jaipur, Rajasthan. Said part of his testimony has gone unchallanged and uncontroverted from the side of respondents.
28. Apart from the aforesaid documents produced by PW1 i.e. the petitioner, he has failed to file any other medical treatment record in order to show the exact period upto which he had received the medical treatment.
Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 15 of 28MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 Nevertheless, it can not be overlooked that the petitioner had suffered fracture hip dislocation and fracture of both legs. Not only this, he also sustained total globe perforation extended to the right brow and root of the nose. Considering the nature of injuries sustained by the petitioner and in view of the treatment record brought on record, it is presumed that he would not have been able to work at all atleast for a period of 1 ½ year or so.
29. While addressing the arguments, counsel for injured vehemently argued that monthly income of injured should be taken as Rs. 14,500/ per month in view of the ocular testimony of PW Matadin. Per contra, counsel for respondent no. 1 argued that said witness could not produce any document in support of his testimony that injured Jai Ram Yadav was employed with him or was earning that much amount at the time of accident. He, therefore, urged that loss of income as per Minimum Wages Act applicable during the relevant period, should be computed under the law.
30. No doubt, injured has examined PW Matadin to prove his monthly income at the time of accident but the testimony of said witness is quite vague as well as contradictory, inasmuchas he deposed during chief examination that injured Jai Ram Yadav was working as Helper with him but he testified during crossexamination that he was working as driver. In any case, he could not produce any document to show that injured was actually working under him or that he was paying monthly salary of Rs.
Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 16 of 28MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 6,500/ to the petitioner, what to say of producing any document to show that injured was also earning between Rs. 6,000/ to Rs. 8,000/ per month on account of overtime, loading and unloading as claimed by him. It is interesting to note that injured Jai Ram Yadav himself has averred in his claim petition that he was earning Rs. 6,500/ per month at the time of accident but PW Matadin has exaggerated the monthly income of said injured by claiming that he was also earning additional amount of Rs. 6,000/ to Rs. 8,000/ per month, which clearly shows that his testimony does not inspire confidence. For all these reasons, I am not inclined to believe the testimony of PW Matadin. For want of cogent and definite evidence with regard to monthly income of injured Jai Ram Yadav being brought on record, I am inclined to consider his notional monthly income equivalent to the wages of an unskilled worker as per Minimum Wages Act applicable during the relevant period.
31. The minimum wages of an unskilled worker were Rs. 5,278/ per month as on the date of accident, which is 28.12.2010. The minimum wages of unskilled worker were revised to Rs. 6,084/pm w.e.f. 01.02.2011. The accident in question had occurred on 28.12.2010 i.e. just 34 days before the date from which minimum wages were revised by the government. In these facts and circumstances, I am inclined to take the minimum wages at the rate of Rs. 6,084/ per month in order to calculate the loss of income under this head. (Reliance placed on unreported decision in the matter titled as "THE ORIENTAL INSURANCE CO.LTD.
Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 17 of 28MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 Vs. CHHOTEY LAL & ORS. ", in MAC. APP. 1074/2016 decided on 15.05.2017 by Hon'ble Delhi High Court.) Thus, a sum of Rs. 1,09,512/ (Rs. 6,084/ x 18) is awarded in favour of petitioner under this head.
PAIN AND SUFFERING
32. 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".
33. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries i.e. fracture in his both legs and injuries in his right eye. As already noted above, his treatment record (which is part of Ex. PW1/9 colly) as available on file, would corroborate his ocular testimony, which has gone unchallenged and unrebutted from the side of respondents. It can not be overlooked that injured had suffered fracture hip dislocation and fracture of both legs. Not Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 18 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 only this, he also sustained total globe perforation extended to the right brow and root of the nose. Apart from the aforesaid, he is shown to have sustained permanent disability of 30% in relation to right eye, 8.2% permanent disability in relation to left leg and 4.2% permanent disability in relation to right hip. In all, he is shown to have sustained permanent physical impairment to the tune of 42.4% as per Disability Certificate (Ex. P2) issued by Medical Board of Government BDM Hospital, Kotputli, Jaipur, Rajasthan. Keeping in view the medical treatment record of petitioner available on record, I hereby award a sum of Rs. 1,50,000/ towards pain and sufferings to the petitioner. (Reliance placed on "IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.2018 by Hon'ble Delhi High Court).
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
34. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered fracture hip dislocation and fracture of both legs due to accident in question. Not only this, he is shown to have sustained permanent disability of 30% in relation to right eye, 8.2% permanent disability in relation to left leg and 4.2% permanent disability in relation to right hip. In all, he is shown to have sustained permanent physical impairment to the tune of 42.4% as per Disability Certificate(Ex. P2). Thus, he would not be able to enjoy general amenities of life after the accident in question, for a considerable period and his Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 19 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 quality of life has been definitely affected. In view of the nature of injuries suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 1,50,000/ towards loss of general amenities and enjoyment of life to the petitioner. (Reliance placed on "IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.2018 by Hon'ble Delhi High Court).
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
35. Although, the petitioner/injured as PW1 has deposed in his evidence by way of affidavit (Ex. PW1/A) that he had spent more Rs.25,000/each on special diet and conveyance and Rs. 21,000/ 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 fracture hip dislocation and fracture of both legs due to accident in question. Not only this, he is shown to have sustained permanent disability of 30% in relation to right eye, 8.2% permanent disability in relation to left leg and 4.2% permanent disability in relation to right hip. In all, he is shown to have sustained permanent physical impairment to the tune of 42.4% as per Disability Certificate(Ex. P2). 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 Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 20 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 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 sum of Rs. 25,000/ each on account of special diet and attendant charges and Rs. 10,000/ on account of conveyance charges to the petitioner.
LOSS OF FUTURE INCOME
36. As already stated above, the petitioner is shown to have sustained permanent disability of 30% in relation to right eye, 8.2% permanent disability in relation to left leg and 4.2% permanent disability in relation to right hip. In all, he is shown to have sustained permanent physical impairment to the tune of 42.4% as per Disability Certificate (Ex. P
2) issued by Medical Board of Government BDM Hospital, Kotputli, Jaipur, Rajasthan. The petitioner has also testified in this regard while examining himself as PW1 during inquiry. He has not been crossexamined by the respondents on this aspect.
37. He was doing the work of Helper on Tata 407 prior to the accident in question. During the course of arguments, counsel for petitioner/injured Jai Ram Yadav argued that right eye of the injured was removed during the couse of his treatment and his right lower limb is also not working after the accident in question. Thus, it would not be possible for him to engage himself in the avocation requiring movement of lower limbs or even to do his day to day activities himself. Hence, his functional disability is taken as 40% in relation to whole body.
Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 21 of 28MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018
38. In copy of Voter I Card (Ex. PW1/14) of petitioner, his age is mentioned as 25 years as on 01.01.1995. The date of accident is 28.12.2010. In view of said document, his age was about 41 years as on the date of accident. Hence, the appropriate multiplier would be 14 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. 6,084/ per month as discussed above. Thus, the loss of monthly future income would be Rs. 2,433.60 paise (Rs. 6,084/ x 40/100 ). The total loss of future income would be Rs. 5,11,056/(Rs. 2,433.60 paise x 125/100 x 12 x 14). (Reliance placed on Jagdish Vs. Mohan & Ors. (2018) 4 SCC 571 and unreported decision of Hon'ble Delhi High Court in " The New India Assurance Co. Ltd. Vs. Deepak Arora & Ors.", MAC APP No. 320/2013 decided on 28.09.18). Thus, a sum of Rs. 5,11,056/ is awarded in favour of petitioner under this head.
Thus, t he total compensation is assessed as under:
1. Medical Expenses Rs. 16,045/
2. Loss of income Rs. 1,09,512/
3. Pain and suffering Rs. 1,50,000/
4. Loss of general amenities and Rs. 1,50,000/ enjoyment of life
5. Conveyance, special diet and Rs. 60,000/ Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 22 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 attendant charges
6. Loss of future income Rs. 5,11,056/ Total Rs. 9,96,613/ Rounded off to Rs. 9,97,000/ Compensation in respect of injured Veerpal Singh
40. PW Sh. Veerpal Singh i.e. injured himself, has deposed in his evidence by way of affidavit (Ex. PW1/A) that after the accident, he was removed to SRHC Hospital, Narela, Delhi, wherefrom he was referred to LNJP Hospital. He further deposed that he had sustained grievous injuries i.e. fracture of left knee and grievous injuries on his chest. He deposed to have spent Rs. 50,000/ on his treatment. He also deposed that all his documents relating to medical treatment and bills had been lost. During his crossexamination on behalf of respondent no. 1, he deposed that the treatment papers were lost after one month of the accident. He had not lodged any missing report to this effect. He denied the suggestion that he had not received any injuries nor he borne any expenses on his medical treatment and for the said reason, he was unable to provide medical documents on record. Respondent no. 2 did not crossexamine this witness, it being exparte.
41. It is pertinent to note that the petitioner/injured has failed to file any medical bill in respect of injuries sustained by him due to the accident in question. He is found to have received the treatment from government Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 23 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 hospital. Even during the course of arguments, counsel for claimant fairly conceded that no medical bill whatsoever has been filed on record. Hence, no amount is being awarded to the petitioner under this head.
42. Injured namely Sh. Veerpal Singh has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was 37 years old; he was driver by profession and was earning Rs. 15,000/ per month at the time of accident. He further deposed that he remained on bed rest for one and half year due to the injuries sustained by him in the accident. Thus, he suffered loss of income to the tune of Rs. 2,70,000/. Respondent no. 1 did not crossexamine this witness on this aspect at all. Respondent no. 2 did not crossexamine this witness, it being exparte.
43. Counsel for injured argued that the injured had sustained grievous injuries as also mentioned by IO in the DAR. In support of said contention, he heavily relied upon the treatment record(Ex. PW1/3 colly) of LNJP Hospital in respect of petitioner/injured, however, said treatment record itself would reveal that the case of petitioner was the suspected case of chip fracture of sup. pole of left patella with cylinderical slab in situ. He was advised Xray of left knee and of chest. The final opinion regarding the nature of injury sustained by him, is opined to be simple on MLC of SRHC Hospital on the premise that as per radiologist, no bony injury was noted in the XRay report. It is important to note that the said injured failed to produce XRay report on record and also failed to examine the treating Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 24 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 doctor of LNJP Hospital, who could have thrown sufficient light on the aforesaid aspect. Having not done so and for want of any definite and cogent evidence showing that injured Veerpal had actually sustained fracture as claimed, I am not inclined to accept his bald testimony in this regard. Consequently, it is held that the said injured had sustained simple injuries due to the impact of accident in question.
44. Keeping in view the medical treatment record of petitioner available on record, the discussion made herein above and the nature of injuries suffered by petitioner being simple, I hereby award total notional amount of Rs. 25,000/towards loss of income, pain and sufferings, special diet, etc to him.
45. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 1 being principal tortfeasor and respondent no. 2 being owner of the offending vehicle and thus, vicariously liable for the acts of principal tort feasor, are jointly and severally liable to pay the aforesaid compensation amount to the petitioner.
ISSUE NO. 3 RELIEF
46. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 9,97,000/ (of injured Jai Ram Yadav) and a sum of Rs. 25,000/ (of injured Veerpal) alongwith interest @ 9% per annum in Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 25 of 28 MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 11.03.2011 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). Hence, issue no.3 is decided accordingly.
APPORTIONMENT
47. Statements of petitioners in terms of Clause 26 MCTAP were recorded on 05.04.17. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that a sum of Rs. 1,25,000/ (Rupees One Lac and Twenty Five Thousand Only)(since a sum of Rs. 16,045/ has already been spent by the injured on his treatment) shall be immediately released to injured Jay Ram Yadav through his saving bank account no. 37637654775 with State Bank of India, Paota, District Jaipur, having IFSC Code SBIN0031851 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 20.000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
48. The entire compensation amount of Rs. 25,000/ of injured Veerpal Singh alongwith interest shall be immediately released to him through his saving bank account no. 4579001700017322 with Punjab National Bank, NHPS Mukund Vihar, Karawal Nagar, Delhi, having IFSC Code PUNB0457900.
Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 26 of 28MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018
49. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(i) 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.
(ii) No cheque book/Debit Card be issued to the claimant/petitioner without permission of the Court.
(iii) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(iv) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit account of the victim.
(v) Half yearly statement of account be filed by the Bank before the Tribunal.
50. During the course of hearing final arguments, claimants were asked as to whether they were entitled to exemption from deduction of TDS or not. They stated on oath that they were entitled to exemption from deduction of TDS and also furnished their Forms No. 15G on record.
51. Both the respondents are directed to deposit the aforementioned amount(s) with SBI, Rohini Courts branch within 30 days as per above order. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the aforementioned amount(s) in the respective savings bank accounts of petitioners, on completing necessary formalities as per rules.
Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 27 of 28MACP No. 4966/16; FIR No. 420/10; PS.Alipur DOD: 17.11.2018 He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach 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 claimants. Copy of this award be given dasti alongwith Forms no. 15G furnished by claimants (after retaining their copies 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.
Digitally signed by VIDYA VIDYA Announced in the open PRAKASH PRAKASH Date: 2018.11.17 Court on 17.11.2018 14:10:54 +0530 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Jai Ram Yadav & Anr. Vs. Vikas Kumar & Anr. Page 28 of 28