Delhi District Court
In Re vs Sh. Gajender Bahadur on 15 September, 2007
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IN THE COURT OF SHRI GURDEEP SINGH : JUDGE
MOTOR ACCIDENTS CLAIMS TRIBUNAL : DELHI
Petition No. : 303/07
Date of filing of the petition : 03.11.06
Date of assignment to this court : 27.7.07
Date reserved for judgment : 15.9.07
Date of Award : 15.9.07
In re:
Nitya Nand Mishra
S/o Late Sh. Bachcha Mishra
R/o 51/F/2, Indraprastha Colony,
Part-I, Natthupura, Burari, Delhi .........Petitioner
Versus
1. Sh. Gajender Bahadur
S/o Sh. Virender Bahadur (Driver)
R/o 37/78, Mori Gate, Gole Chakkar, Delhi
2. Sh. Sunil S/o Sh. Daya Ram (Owner)
R/o H-8, Double Storey,Court Lane,
Raj Niwas Marg, Civil Line,
Delhi-54
3. The Oriental Insurance Company,
Oriental house, A 25/27, Asaf Ali Road,
New Delhi ........... Respondents
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APPLICATION U/S. 166 & 140 OF MOTOR VEHICLES ACT 1988 FOR GRANT OF COMPENSATION APPEARANCE:
Sh. Santosh Jha counsel for petitioner Sh. Dinesh Singh counsel for respondent no 1 and 2 JUDGMENT/AWARD
1. This is a petition filed U/s. 166/140 of the Motor Vehicles Act (hereinafter referred to as 'Act of 1988') for claiming compensation on account of motor vehicle accident.
2. The facts as averred in the petition are that on 15.8.06 at 5.20 PM the petitioner the petitioner was returning to his house and was standing and waiting for a bus at red light at ISBT, on a side. Respondent No. 1 came in a drunken state on a motorcycle (Pulsar) bearing temporary No. DL-6CT-
C-281 at a very high speed driving the same in a rash and negligent manner and hit the standing petitioner which resulted that the petitioner 3 became unconscious and unknown person took petitioner to Trauma Hospital, Delhi. He regained consciousness on 21.8.06, subsequently the original number of the motorcycle was allotted by the concerned department later on which bears its No. DL-7SA-S-5321. The petitioner was also treated in Hindu Rao Hospital. He has sustained injuries on head and all over the body.
3. The petition was contested on behalf of R1 and R2, who filed joint written statement. It was contested on the ground that the injuries sustained by the petitioner is self inflicted and was caused due to his own negligence. He has not taken the precaution as there was heavy traffic on the road.
4. On Merit. It is stated that respondent No. 1 was not responsible for the injuries as they were self inflicted injuries. Respondent No. 1 however also sustained injuries on account of the negligence of the petitioner. They admitted the registration of FIR. Driver and ownership was also not disputed.
5. Respondent No. 3 is the insurance company. They filed their written statement stating that the insurance policy was issued in favour of the respondent no. 2 after the accident and they are not liable. Thereafter the 4 name of insurance company was deleted from the array of parties.
6. Vide order dated 11.5.07 of my Ld. Predecessor and following issues were framed:-
(1)Whether the petitioner received grievous injuries due to rash and negligent driving of offending vehicle No. DL-7SA-S-5321 being driven by respondent No. 1?
(2)To what amount the petitioner is entitled for compensation and from whom?
(3)Relief.
7. The petitioner filed replication, reiterating and reaffirming his previous stand.
8. Petitioner examined himself as PW1 and filed his evidence by way of affidavit. Respondent examined himself as RW1 and also filed his evidence by way of affidavit.
9. I have heard the counsel for the parties and have also gone through record.
10.My issuewise findings are as under:-
Issue No. 1
11.The petitioner testified that he was standing and waiting for the bus to his 5 house and was standing at red light at ISBT on a side and suddenly respondent no. 1 came in a drunkard state on a motorcycle who was driving in a high speed, rash and negligent manner which resulted in injuries to him. He further proved copy of FIR Ex. PW1/2. He has also filed the certified copy of charge sheet against respondent no. 1 in criminal case. In his cross examination he stated that accident occurred on the way which comes from ISBT Kashmiri Gate towards Tis Hazari at about 5.30 PM. There was no red light where he was standing. He was standing on the bus stop from where the bus for Nathupura is available. There was no regular bus stop but the buses do stop on the request. He however stated that there is regular stop for buses bound for the Nathupur. There is no Zebra crossing at that place but the public persons cross from that place. He had seen the motorcycle from the other direction. He admitted that it was a crowded road. Motorcyclist was driving in the manner that he was drunk. He did not get the time to get away from the way of the motorcycle. He admitted the certified copies of FIR, site place, Ex. PW1/X1 and X2. He denies the suggestion that accident was caused due to his own negligence. He does not know whether the motorcyclist also 6 sustained injury as he fell unconscious. He was discharged on 20.8.2006.
12.On the other hand respondent no. 1 deposed that the petitioner was crossing the road without taking any precautionary measures and was not crossing through Zebra crossing. He stated that due to the negligent of the petitioner, he himself sustained injuries.
13.In his cross examination he stated that he had a driving license which was lost on the day of accident. He did not file any police report. He has not applied for new driving license. He was wearing a helmet, the same had been broken. He has not taken alcohol on the day of accident. He further stated that at the time of accident the speed of his motorcycle was 30-35 Km per hour.
14.Ld. counsel for the petitioner submitted that the respondent was not having the driving license as per the charge sheet he was charged sheeted for driving without driving license and was also driving under the influence of alcohol. The MLC of the respondent Ex. PW1/X4 shows positive smell of alcohol.
15.Now the question arises that mere positive smell for alcohol in breath and not having the driving license and per se be termed as negligent. The 7 answer would be in negative. However from the evidence of the petitioner it has come on record that he was standing at a place where public persons stands to take the bus, although the same is not a regular bus stop. Moreover as per the site plan the place of accident, prepared by the police, there is place where the accident took place is near the central pavement of the Bulward Road which also shown by arrow which is used for crossing the said pavement. The petitioner has given the contrary version as to where he was standing, however he has also admitted that he has seen the vehicle coming and did not moved away and also there is no zebra crossing and it was a crowded road. On a crowded road the driver of the vehicle is required to drive cautiously. On the other hand the petitioner was crossing where there is no zebra crossing and even after seeing the vehicle did not move away, it would amount to contributory negligence. It is the duty of the motorcyclist to drive cautiously and take due care and thereafter the negligence of petitioner can not be assessed more than 25% and accordingly the accident was caused on account of negligence of respondent no. 1 to the extent of 75%. Issue No. 1 is accordingly decided in favour of the petitioner.
8Issue No. 2
16. The petitioner has stated that his age is 65 years and he has mentioned wrong age in the petition. He has mentioned his age as 80 years and it is corrected to 70 years without any initials on the same. He claims his age as 65 years in the affidavit. His age as recorded in the MLC is 50 years as on the date of accident he was admitted as unknown which appears that he may not be in a position to tell his age at that time. His age recorded at Hindu Rao Hospital is 68 years, at Ram Manohar Lohia Hospital as 65 years, therefore there is no consistency regarding the age of the petitioner and it would be safe to take his age as given in his petition as 70 years.
17.The petitioner claimed that he was taken to Trauma Hospital on 15.8.06 and regained his consciousness on 21.8.06 and has incurred a huge medical expense on treatment , special diet, and conveyance charges. He also claimed that he has lost his working capacity and is unable to work and has become handicapped and he has lost 50% of his working capacity.
18.In his cross examination he admitted that he was discharged on 20.8.06 from the hospital. He had sustained head injury. He has also filed a prescription dated 19.9.06 wherein he has given history of fever with 9 chills for 4 days. He has also filed an OPD card of RML Hospital dated 19.12.06 where contusion on right temporal is seen in the CT scan and treatment was given. He has also filed record of audiological record which shows that a mild high hearing loss. There is one MRI of Brain got done at G.B. Panth Hospital. At Sant Parmanand Hospital there is an audiometry report dated 20.9.06, there is also another bill of lenses. These bills and treatments shows that he has suffered head injury and was treated for the same. If a person of an advance age and he may be suffering from some ailment and the injuries of such nature triggers off those diseases and thereby it can not be said that they are not the direct result of the injuries. Except for the lenses other bills of treatments submitted are justified and are granted.
19.As regards loss of income it is admitted case of the parties that there is no permanent physical disability. The petitioner has claimed in his affidavit that he was working as priest as profession and was doing pooja and other religious functions at the house of Shri Madan Lal Khanna R/o 74, Janpath, New Delhi and was getting a salary of Rs. 9,000/- per month and he was also performing pooja and marriages and was earning 6,000/- per 10 month. Whereas in his petitioner he has stated that he was earning Rs. 9,000/- from the house of Sh. Madan Lal Khanna and Rs. 5,000/- per month from the house of Sh. Amit and Rs. 6,000/- from getting the marriages performed. He has also proved one certificate, Ex. PW 1/51 from one Sh. Madan Lal Khanna, although he has not come but he has certified that Nitya Nand Mishra is working with them as Ved Path (Panditji) and he has been paid gross salary of Rs. 5,000/- per month upto August 2006. As regards the others there is no certificate. This contradicts the petition and his affidavit that Sh. Madan Lal Khanna is paying him Rs. 9,000/- per month. In the circumstances, I take the income of the petitioner as Rs. 4,000/- per month as Sh. Sh. Madan Lal Khanna has stated that it was a gross amount paid to him and at this age one would earn this much of amount from occupation. The petitioner has suffered injuries on 15.8.06 and his medical treatment as per the medical prescription must have gone for about 6 months. Upto the month of February 2007 i.e about 6 months he might be not in a position to work which can be treated as his loss of income which comes to Rs. 24,000/-.
20.Accordingly, I calculate the compensation payable to the petitioner as 11 under:
1. Loss of Income ( 4000 X 6 ) : Rs. 24,000/-
2. On account of medical prescriptions : Rs. 20,130/-
3. On Conveyance and special diet : Rs. 5,000/-
4. Pain and sufferings : Rs. 10,000/-
5. Loss of amenities of life : Rs. 5,000/-
Total : Rs. 64,130/-
(rounded off) : Rs. 64,000/-
Relief
21.The petitioner is entitled to the compensation to the tune of Rs. 64,000/-.
22.However, the petitioner has contributed to the negligence to the extent of 25%, therefore, the liability of Respondent No. 1 and Respondent No. 2 is Rs. 48,000/- [Rs. 64,000 - Rs. 16,000 (25% of 64,000)]. Accordingly I award the compensation of Rs. 48,000/- (Rs. forty eight thousand only) in favour of the petitioner with interest @ 7% per annum from the date of filing of the petition till realisation.
23.Since the amount awarded is small and that much of amount must have been spent by the petitioner for his treatment, therefore no order for the 12 investment of the same is being passed.
24.Respondent No. 1 the driver and Respondent No. 2 is the owner, they are jointly tortfeasor and jointly and severely liable to pay the compensation.
25.Accordingly Respondent No. 1 and 2 are directed to pay the amount by way of cheque in the name of the petitioner and deposit the cheque in the tribunal, in the name of the petitioner within 30 days from the date of award. No order as to cost. Copy of the order be given to the parties free of cost. File be consigned to record room.
ANNOUNCED IN COURT TODAY GURDEEP SINGH the 15th of September 2007 ADDITIONAL DISTRICT JUDGE