Delhi District Court
Naresh vs . Sanjay Sarkar And Others on 7 December, 2010
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IN THE COURT OF SH. H. S. SHARMA
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
TRIBUNAL,DWARKA COURTS, NEW DELHI
IN THE MATTER OF :
NARESH VS. SANJAY SARKAR AND OTHERS
M.A.C.P NO 143/09
Sh Naresh Kumar,
s/o Sh Om Prakash,
r/o Village Chhawla,
Delhi
........Petitioner
Versus
1 Sh Sanjay Sarka,
s/o Sh Ram Prasad,
r/o H No 30/31, D Block,
New Seemapuri, Delhi
2 Sh Satish Kumar Dahiya,
s/o Sh Mohar Singh Dahiya,
r/o RZU 148, New Roshanpura,
Najafgarh, New Delhi
3 Bajaj Allianz General Insurance Company,
6th Floor , 93, Ashoka Bhawan,
Nehru Place, New Delhi
NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09
(Page no 1 to page13)
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.......Respondents
1. Date of institution: 29/5/2009
2. Date of framing of issues:2/2/2010
3.Date of hearing arguments :23/11/2010
4. Date of decision: 07/12/2010
5. Amount Claimed: Rs 25 lacs
1. Sh Pratap Singh advocate for the petitioner
2. Sh M C Premi advocate for Respondents no1 and 2
3. Sh M P Shahi advocate for respondent no3 AWARD/ JUDGEMENT:
1. On 7/2/2009 Sh Naresh Kumar ( hereinafter the petitioner) was going to his house on his motorcycle no DL9SN3881 . AT about 9.15 p.m when he was near Govt School Chhawla , a canter bearing no HR 63A2652 ( hereinafter the offending vehicle) driven in a negligent manner by respondent no 1 ( in short R1) came from the side of Bijwasan. There was a speed breaker near the school. When the offending vehicle had crossed the speed breaker, it was imbalanced because of its high speed.
As a result of negligent driving of R1 , the front side of the offending vehicle had hit motorcycle of the petitioner . The petitioner fell down and sustained injuries . After the accident the offending vehicle was stopped . The petitioner knew R1 from before. Persons from the public had gathered there. On seeing the public , R1 had fled away. Because of the injuries , NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09 (Page no 1 to page13) -:3:- the petitioner became unconscious. He was removed to hospital. Since the petitioner had suffered physically, mentally and financially, therefore, the present petition was filed.
2. The offending vehicle was owned by respondent no 2 ( in short R2) and insured with respondent no 3 ( in short R3).
3. R1 and R2 have denied the manner of accident. However, no specific plea has been taken by them. It has been denied that R1 was the driver of the offending vehicle.
4. R3 has admitted that the offending vehicle was insured with it in the name of R2. However, the offending vehicle had been used in violation of the terms of the policy. The insured knew that the driver was not having a valid and effective license. It ( R3) shall not be liable in case the terms and conditions of the policy are found to have been violated.
5. Issues were framed on 2/2/2010.
6 I have heard ld. Counsel for the petitioner and ld. Counsel for R3.
7. My issue wise findings are as under:-
ISSUE NO 1 Whether petitioner Naresh Kumar had sustained injuries on his person in an accident which took place on 7/2/2009 due to negligent driving of NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09 (Page no 1 to page13) -:4:- vehicle bearing registration no HR 63 A 2652 which was being driven by respondent no 1 and owned by respondent no 2 and insured with R2, with whom the offending vehicle was insured?
.....OPP
8. The petitioner in his affidavit Ex PW1/A has reiterated the manner of accident, as mentioned in para 1 of the award.
9. Not even a single question with regard to manner of accident was put to the petitioner in the cross examination conducted on behalf of R1 and R2. On behalf of R3 it was suggested that the accident had taken place due to his ( petitioner's) negligence. The petitioner has denied this suggestion. He admitted that it was a head on collision . He was having valid driving license.
10. R1 has not appeared to state as to how the accident had taken place . As mentioned earlier , no specific plea has been put forth by R1 and R2 , so far as the manner of accident is concerned.
11. It is well settled that in an accident claim petition, the claimant is not required to prove his case to the hilt. The standard of proof, in a claim petition, is not as rigid and as high, as is in a criminal case. In a criminal case proof beyond reasonable doubt is required . However, in a claim petition it is not so.
12. Further R1 had pleaded guilty before the Ld MM on 24/10/2010 and was convicted u/s 279 IPC and was fined Rs 500/ . R1 NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09 (Page no 1 to page13) -:5:- had also paid Rs 10,000/ as compensation to the petitioner. ld. Counsel for the petitioner has today placed on record certified copy of the proceedings dtd 24/10/2010 recorded by the Ld MM.
13. It is well settled that where the driver of the offending vehicle pleads guilty in the criminal case, no further evidence to prove his negligence in the claim petition is required. See S Anand Vs K V Ali 1994 ACJ 786 ( Andhara Pradesh) and Lab Kaur Vs. Raj Kumar 1996 ACJ 744 ( Punjab) .
14. In view of the above discussion this issue is decided in favour of the petitioner and against the respondents. ISSUE NO 2 In case , issue no 1 , is decided in favour of the petitioner, to what amount of compensation he is entitled to and from whom.
15 The petitioner in his affidavit Ex PW1/A has averred that he was discharged from Mool Chand Hospital on 19/2/2009 . He had spent Rs 5 lacs on his treatment . His family members have spent Rs 25,000/ on transportation. He has spent Rs 20,000/ on attendant and Rs 15,000/ on special diet. He has not recovered fully. He was not able to see properly from his right eye. He has suffered 30 % disability. His jaw has been re NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09 (Page no 1 to page13) -:6:- fixed and wires had been put in his teeth. The same were removed after 11/2 months. He is still having pain. He is not in a position to chew the food properly. Because of the permanent disability, his license and authorization of badge cannot be renewed. He has lost his job once for all. He will not be in a position to perform his duty as a driver. His chances of getting Government Job have diminished. Prior to this accident he had fully prepared himself to join DTC as there were a number of vacancies on that date. The motorcycle had also been badly damaged. A sum of Rs 30,000/ had been spent on its repair.
16. The petitioner has placed on file the treatment record. The discharge summary Ex PW1/19 to Ex PW1/22 reveal that he had been admitted in Mool Chand Hospital on 8/2/2009. He had been operated on 8/2/2009 and 16/2/2009 and was discharged on 19/2/2009. Right frontal craniotomy with evacuation of ICH with facial repair with treacheostomy was performed on 8/2/2009. Open reduction of fracture mandible and resetting of fracture of nasal bone was done on 16/2/2009. The petitioner was admitted for his surgery . As per the final bill Ex PW1/74 a sum of Rs 2, 08,371/ had been paid .
17. As per Ex PW1/19 there was history of RTA , history of nasal bleeding , NCCT Head B/L frontal lobe with bleeding . Comminuted fracture, frontal bone with fracture of Orbital wall with fracture of nasal NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09 (Page no 1 to page13) -:7:- bone and mandible fracture . The petitioner was to be moving all limbs with planters up going . Right pupil was found dilated .
18. Except the petitioner no other witness to corroborate its claim that he had spent Rs 5 lacs on his treatment , Rs 25,000/ on transportation, Rs 20,000/ on the attendant and Rs 15,000/ on special diet has been examined.
19. The petitioner has examined Dr Sudha Singh PW2 to prove the disability certificate Ex PW1/85 dtd 20/5/2009. She has deposed that in the certificate the disability was not mentioned as permanent . However, as on the day ( her statement was recorded on 11/5/2010) the disability was permanent. The visibility of right eye was almost nil. It had resulted from the injuries sustained by the patient. The 30 % disability was only the visual disability and not of the entire body.
20. In the petition it has been averred that the petitioner was a driver and used to earn Rs 5000/ per month. However, name of the employer does not find mention in column no 5 of the petition. He has not produced copy of any application sent by him to DTC to seek employment.
21. The petitioner has placed on record photostat copy of his DL Ex PW1/81 and the badge number Ex PW1/82. From these documents it can be said that he was authorized to drive HTV and was also authorized NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09 (Page no 1 to page13) -:8:- to drive commercial vehicles. Thus , he was a skilled person.
22. The petitioner was not in a regular service. It cannot be said that because of the disability suffered by him he cannot get any employment. Therefore, in the absence of any cogent evidence , it is difficult to award compensation to him for the loss of future earning. However, the disability certificate shall be kept in mind while assessing the compensation under the heads ''pain and suffering''and ''loss of amenities'' .
23. The loss of future earning means that for the whole life, the claimant, because of the injuries , sustained by him in the accident, he (claimant) shall not be in a position to earn. For instance take a case where the injured say a rickshaw puller suffers injuries in a motor vehicle accident and because of the injuries his leg (s) is / are amputated rendering the rickshaw puller jobless. In that case the percentage of disability is to be converted into disability to earn.
24. Further, in the present case, the percentage of disability has not been transformed into the percentage of disability of the whole body. It is not possible in the absence of evidence, to transform the percentage of disability noticed in Ex PW1/85 into percentage of disability to earn.
25. The petitioner has averred that the motorcycle had also been damaged and an amount of Rs 30,000/ had been spent to get it repaired. NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09 (Page no 1 to page13) -:9:- However, he has not filed any corroborative evidence. .
26. Before I calculate the amount which shall be just compensation , it is necessary to incorporate the observations made by the Hon'ble Supreme Court in R.D. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 . It was observed as under: " In injury cases, it is not easy to assessed the amount of damages. The same can however be based on some element of guess work and some amount of sympathy linked with the nature of disability. However, all such elements are required to be viewed with objective standard. While assessing the damages the court cannot based its opinion on speculation or fancy though conjectures to some extent are inevitable. "
Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09 (Page no 1 to page13) -:10:- damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of expectation of life, ie. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
27. Keeping in view the nature of injuries and nature of evidence following amount shall be just compensation:
1 Pain and Suffering : Rs. 1,00,000/ 2 Loss of Amenities : Rs. 1,00,000/ 3 Special Diet : Rs. 10,000/ 4 conveyance : Rs. 10,000/ 5 For medicines ; Rs 2,50,000/ 6 Loss of earning : Rs 52,296/ ( For one year @ Rs 4358/ per month) _____________________________________________________________ Total : Rs. 5,22,296/ Rounded off : Rs 5,22,300/ (Rupees Five lacs twenty two thousand and three hundred only) NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09 (Page no 1 to page13) -:11:- _______________________________________________________________ INTEREST
28 There is no material to withhold the interest. Petitioner is awarded interest @ 7.5% per annum from the date of filing of petition i.e. 29/5/2009 ,till its realization.
RELEASE 29 From out of the awarded amount, an amount of Rs. 2,50,000/ with interest is ordered to be released. The balance amount with interest is ordered to be kept in the FD of the petitioner for a period of three years, with no facility of loan or advance without permission of the Tribunal. However, petitioner is at liberty to take monthly/quarterly interest on the FD.
LIABILITY 30 No evidence has been produced on behalf of the respondents.
31. Ld. Counsel for R3 has submitted that since it was a head on collision , therefore, the liability to pay the compensation be apportioned in the ratio of 50:50.
32. I do not agree with ld. Counsel for R3 . There is no material to hold that the petitioner was also negligent. Further R1 had pleaded guilty before the Ld MM.
NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09 (Page no 1 to page13) -:12:-
33. Admittedly, the offending vehicle was being driven by R1. It was owned by R2 and was insured with R3. Therefore, R1, is the principal tort feaser. R2 and R3 are vicariously liable. All the respondents are held jointly and severally liable to pay the awarded amount. However, since the vehicle was insured with R3, therefore, it shall pay the awarded amount.
34. This issue is accordingly decided in favour of the petitioner and against the respondents.
RELIEF 35 In view of the findings on issues no. 1 and 2, this issue is also decided in favour of the petitioner and against the respondents. An award of Rs 5,22,300/(Rupees Five lacs twenty two thousand and three hundred only) with the interest at the rate of Rs. 7.5% per annum from the date of filing of petition i.e.29/5/2009,till realization is passed in favour of the petitioner and against the respondents. 36 R3 to deposit the awarded amount within 30 days from today failing which interest at the rate of Rs. 12% per annum shall be charged from 8/12/2010 till realization.
37. R3 shall inform the petitioner through registered post that the cheques of the awarded amount are being deposited so as to facilitate the petitioner to collect the cheques.
38 Petitioner to place on record his photograph, copy of election I NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09 (Page no 1 to page13) -:13:- card or copy of driving license or copy of passport or any other document (if not filed earlier) to establish his identity.
39. Copy of the award be supplied to both the parties. (free of cost)
40. File be consigned to Record Room.
Announced in open court (H. S. SHARMA)
ON 7/12/2010 MOTOR ACCIDENT CLAIMS TRIBUNAL01,
Dwarka Courts, Delhi
All pages signed
NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09
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NARESH VS. SANJAY SARKAR AND OTHERS M.A.C.P NO 143/09
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