Delhi District Court
Dinesh Tiwari vs Safdar Khan on 20 July, 2010
IN THE COURT OF MS. SWARANA KANTA SHARMA:
CENTRAL DISTRICT : JUDGE : MACT : DELHI.
SUIT NO. 458/08
Unique Case ID No.02401C-0506812007
Dinesh Tiwari,
S/o.Sh. Jai Prakash Tiwari,
R/o.958, Subzi Mandi,
Ghanta Ghar,
Delhi.
Permanent R/o.
Village Bauvapar,
PO Thekwan Bazar,
Distt. Azamgarh (UP). .......Petitioner
Versus
1.Safdar Khan,
S/o.Afsar Khan,
R/o.PS Baspura,
Denar Niya,
Distt. Bareilly. .......(Driver)
Suit No.458/08 Page 1/16
2.Mohd.Omar,
S/o.Vilayat Ahmet,
R/o.Katikuyiya Purana Shehar,
Bareilly. ........(Owner)
3.Oriental Insurance Company Limited,
RO-I, 88, Janpath,
Connaught Place,
New Delhi. ........(Insurer)
......RESPONDENTS
Date of Institution of the suit : 11.01.2005
Date of reserving judgment/order : 19.07.2010
Date of pronouncement : 20.07.2010
JUDGMENT
1. The present claim petition has been filed by the petitioner u/s.166 and 140 of Motor Vehicle Act.
2. Brief facts giving rise to the present claim petition are that on 21/09/2004, the petitioner was on his duty on truck/tanker of the company bearing registration no.HR 29 4255. Truck/tanker was parked on the roadside at the National Highway as the Chakka of the Suit No.458/08 Page 2/16 truck/tanker was not working/removed and he was sitting in front of his tanker. At about 2.35 am, a truck bearing registration no. DL 1GA 8016 came from wrong side at high speed and rash and negligent manner and had hit the petitioner and his tanker. As a result thereof, he was injured grievously. The offending vehicle had turned turtle. Two other persons Satender Pandey and Bholoo had died at the spot.
3. Written Statement was filed by ld.counsel for respondents no.1 and 2 wherein it is stated that the petitioner has not come to the court with clean hands. It is denied that accident had taken place due to negligence of respondent no.1.
4. Written statement was also filed by respondent no.3, Oriental Insurance Company Limited, wherein it is stated that petitioner has not come to the court with clean hands and that the petition does not disclose any cause of action. However, it is admitted that offending vehicle bearing registration no.DL 1GA 8016 was insured in the name of respondent no.2 i.e. Mohd.Omar vide policy no.252600/31/2004/02565 and the insurance policy was valid from 05/12/2003 to 04/12/2004.
5. On the pleadings of the parties, following issues were settled:-
(i). Whether petitioner Dinesh Tiwari received grievous injuries due to rash and negligent driving of vehicle no.DL 1GA 8016 by respondent no.1?Suit No.458/08 Page 3/16
(ii) Whether petitioner is entitled to any compensation? If so, what amount and against whom?
(iii) Relief.
6. During the course of proceedings, respondents no.1 and 2 were proceeded ex-parte vide order dated 30/04/2008.
7. Petitioner has examined one witness in support of his claim.
8. PW-1 Sh.Dinesh Tiwari, who is petitioner himself tendered in evidence his examination-in-chief by way of affidavit Ex.PW-1/A wherein he stated that on 21/09/2004, he was on his duty on truck/tanker of the company bearing registration no.HR 29 4255. Truck/tanker was parked on the roadside at the National Highway as the Chakka of the truck/tanker was not working/removed and he was sitting in front of his tanker. At about 2.35 am, a truck bearing registration no. DL 1GA 8016 came from wrong side at high speed and rash and negligent manner and had hit him and his tanker. As a result thereof, he was injured grievously. The offending vehicle had turned turtle. Two other persons Satender Pandey and Bholoo had died at the spot.
He further stated that he was removed to Shvim Hospital, Meerut, UP by the police where he had remained admitted for two days and thereafter he was shifted to Lok Nayak Hospital on 23/09/2004 where he had remained admitted till 04/12/2004. He has sustained Suit No.458/08 Page 4/16 injuries on his left thigh, near his private parts and was operated for the same.
He stated that police has registered a FIR no.208/04 u/s.279/338/427/304A IPC with Police Station Babu Garh.
He stated that he had remained admitted in Lok Nayak Hospital and thereafter his treatment continued. He was thereafter admitted at University Hospital (Sir Sunder Lal Hospital) BHU from 28/06/2005 to 20/07/2005 where he was operated upon on 08/07/2005. He was again admitted in Vijai Orthopaedics Hospital from 24/10/2005 to 04/11/2005 for another operation on his left leg/Femur.
He further stated that he is still under treatment and is yet to undergo another operation for his private parts and still he has been asked to put a urine pipe for discharging the urine.
He stated that he has suffered 55% disability.
He further stated that he was working as a Driver having driving licence with him and was earning Rs.5,000/- per month towards salary. He also used to get Rs.2,500/- per month for overtime.
He has proved copy of his driving licence as Ex.PW-1/1, photographs as Ex.PW-1/2 to Ex.PW-1/7, copy of FIR Mark A, Ex.PW- 1/8 as de-exhibited, the driving licence of driver of offending vehicle as Mark B, Insurance Cover as Ex.PW-1/10, the discharge slip of Sir Sunder Lal Hospital as Ex.PW-1/11, the discharge slip from LN Hospital as Ex.PW-1/11A, the discharge slip of Vijay Orthopaedic Hospital as Ex.PW-1/12, the disability certificate as Ex.PW-1/13, the medical bills and transport bills as Ex.PW-1/14 to Ex.PW-1/71.
Suit No.458/08 Page 5/16On being cross examined by ld.counsel for respondent no.2, he stated that there was complete darkness on the road as the accident had taken place between 2.00 am to 2.30 am night. The road was a single road and the width of road was about 15 feet. His truck was parked on the left side of the road as the chakka was broken up. He had placed bricks on the back as well as front side of his truck. The offending truck was coming from the opposite direction on its wrong side. He has filed on record his entire treatment record available with him. Some of his treatment had taken place at Government Hospital and some at private hospital. He had purchased the medicines from outside. He admitted that he has not filed on record any document to show that his treatment is still continuing or any advice/prescription of the doctor regarding the future operation. He has further admitted that he has not filed any document to show that he was working as a driver on the truck bearing registration no.HR 29 4255 or that he was getting Rs.5,000/- per month towards salary and Rs.2,500/- per month as overtime.
9. Thereafter, petitioner's evidence was closed.
10. Respondent no.3, Insurance company has examined one witness to controvert the claim of the petitioner.
11. R3W1 Rattan Lal, Record Clerk, Oriental Insurance Company Limited stated that the Insurance Company had got issued a notice under Order 12 Rule 8 CPC to produce original policy and the Suit No.458/08 Page 6/16 national permit of the vehicle bearing registration no.DL 1GA 8016 Ex.R3W1/1. He proved the Insurance Policy as Ex.R3W1/5. He staed that the Insurance Company is not liable to pay compensation as the original permit or its copy was not produced. He also stated that the petitioner has filed a false disability certificate allegedly issued from the Chief Medical Officer, Azamgarh. He has proved the Investigators Report as Ex.R3W1/6 to Ex.R3W1/8.
12. Thereafter, respondents evidence was closed.
13. Final arguments were heard on behalf of Ld.Counsel for petitioner as well as for the respondent. After hearing arguments and having gone through the record, I record my findings on issues settled as follows:
14.ISSUE NO.1:
Whether petitioner Dinesh Tiwari received grievous injuries due to rash and negligent driving of vehicle no.DL 1GA 8016 by respondent no.1?
The petitioner has filed on record copy of FIR as well as photocopy of the challan. Police investigation has concluded that the accident in this case has taken place due to rash and negligent driving of respondent no. 1 who is driver of the offending vehicle bearing registration no.DL 1GA 8016 and who is accused in the criminal case Suit No.458/08 Page 7/16 filed by the police. Though the petitioner has not filed certified copies of criminal case record, however, this fact is not disputed by the Insurance Company.
The petitioner has also stated on oath that the accident in this case has taken place due to rash and negligent driving of respondent no. 1 as has been discussed above in the testimony of PW-1 i.e. injured.
It is therefore prima facie clear that the accident in the case had taken place with the offending vehicle driven by respondent no.1 due to his rash and negligent driving causing serious injuries to the petitioner.
Hence, issue no.1 is decided against the respondents.
15.ISSUE NO.2:
Whether petitioner is entitled to any compensation? If so, what amount and against whom?
Since, issue no.1 has been decided in favour of the petitioner that he had suffered injuries with the offending vehicle, the petitioner is entitled to compensation under the Motor Vehicle Act.
16.MEDICINES AND MEDICAL TREATMENT.
As per medical treatment record of Lok Nayak Hospital, the petitioner was admitted in the hospital on 23/09/2004 and was discharged on 04/12/2004. He had suffered blunt trauma of the abdomen with fracture of the left femur. Surgery was conducted and the wound that he had suffered on his left thigh and near his private parts Suit No.458/08 Page 8/16 was operated upon. Further as per discharge summary of University Hospital (Sir Sunder Lal Hospital) BHU, he has remained admitted in the hospital from 28/06/2005 to 20/07/2005 with the history of non union of the fracture. Surgery was again conducted and the fracture was attended to. He was referred to Urologist for further management. He was again admitted in Vijay Orthopaedics Hospital, Azamgarh from 24/10/2005 to 04/11/2005, where surgery was again conducted and internal nailing was conducted to unite the left shaft femur. He was advised to walk with the help of clutches. There is no further medical treatment record available on the judicial file. Despite repeated opportunity given for eight times, the petitioner did not examine any doctor.
However, after evidence was closed, permission was sought by the petitioner to be examined by a Medical Board for assessment of the disability suffered by him. Five opportunities were granted. Despite such opportunities being given again, the petitioner did not take steps to examine the concerned doctor. However, since a letter had been issued to the Medical Superintendent, LNJP Hospital for medical examination for assessment of disability suffered by the petitioner by the Tribunal, a letter dated 17/04/2010 was received directly in the Court which is on the judicial file according to which it is reported that the petitioner has suffered long stricture of posterior urethra from Bulb of Urethra to Bladder Neck (complete obliteration). However, it cannot be quantified because of unavailability of any guidelines for calculation of such disability as per the gazette of India.
Suit No.458/08 Page 9/16In a nutshell, there is no document on record to reflect as to whether the petitioner is still under any type of treatment and the exact nature of medical problem if at all suffered by the petitioner at present. The opinion of the Medical Board of LNJP Hospital is on the record according to which the petitioner has not suffered any orthopaedic disability and the injuries he has suffered on his private parts cannot be quantified in terms of disability.
The petitioner has admitted that there is no record that he has to undergo any future operation of the private parts.
It will not be out of place to mention here that the petitioner has filed on record a fake disability certificate issued from Azamgarh which as per the Investigators report has been found to be fake and not issued from the said hospital. The Insurance Company is at liberty to take any action against the petitioner for filing a false and fabricated certificate on judicial record.
The record regarding the petitioner having undergone surgery twice as he had suffered fracture of the left femur have been proved on record. The petitioner has filed on record medical bills in the sum of Rs.30,755/-. Therefore, I am inclined to grant a sum of Rs.31,000/- to the petitioner Dinesh Tiwari towards cost of medicines and medical treatment.
17.LOSS OF FINANCIAL CAPACITY DUE TO DISABILITY.
As I have already discussed above that the petitioner has filed on record a fake disability certificate issued from Azamgarh which as Suit No.458/08 Page 10/16 per the Investigators report has been found to be fake and not issued from the said hospital. Therefore, I am not inclined to grant any amount to the petitioner under this head.
18.LOSS OF WAGES.
The petitioner has stated that after the accident he was remvoed to Shivam Hospital, Meerut, UP where he had remained admitted for two days and thereafter he was shifted to Lok Nayak Hospital on 23/09/2004 where he had remained admitted till 04/12/2004. He had sustained injuries on his left thigh, near his private parts and was operated upon for the same. Further he had remained admitted in Lok Nayak Hospital and thereafter his treatment was continued. He was thereafter admitted at University Hospital (Sir Sunder Lal Hospital) BHU from 28/06/2005 to 20/07/2005 where he was operated upon on 08/07/2005. He was again admitted in Vijai Orthopaedics Hospital from 24/10/2005 to 04/11/2005 for another operation on his left leg/Femur. There is no further medical treatment record available on record. However, considering the nature of injuries sustained by the petitioner, I am of the opinion that the petitioner must not have been able to work for three more months. Therefore, I am inclined to grant loss of wages to the petitioner for eighteen months.
The petitioner has stated that he was working as a driver and was earning Rs.5,000/- per month towards salary and also used to get Rs.2,500/- per month for overtime. However, he has not filed any documentary proof on record regarding his income or qualification.
Suit No.458/08 Page 11/16Therefore, I am inclined to take minimum wages of unskilled labourer to assess the loss of income of the petitioner.
On the date of accident of the petitioner i.e. 21/09/2004, minimum wages of unskilled labourer were Rs.2,894.90 (Round figure Rs.2,900/- per month.
Therefore, the loss of income for eighteen months will be Rs.2,900/- x 18 which comes to Rs.52,200/-. Thus, I award a sum of Rs.52,200/- to petitioner on account of loss of wages.
19.LOSS OF AMENITIES OF LIFE.
Since it is clear from the opinion of the Medical Board that the petitioner has suffered long stricture of posterior urethra from Bulb of Urethra to Bladder Neck (complete obliteration) and the petitioner states that he still has difficulty in urination, unfortunately there is no medical record to show as to whether this condition will continue for life and whether it will have any other affect on his married life or not. Neither it has been pleaded by the petitioner. However, since the petitioner has suffered long stricture of posterior urethra from Bulb of Urethra to Bladder Neck (complete obliteration), I am inclined to grant a sum of Rs.30,000/- to the petitioner towards loss of amenities of life.
20.PAIN AND SUFFERING.
The petitioner has undergone surgery twice. His left shaft femur was fractured. He has also suffered injuries to his private parts. It was reported in the letter received from Medical Superintendent, LNJP Suit No.458/08 Page 12/16 Hospital that the petitioner has suffered long stricture of posterior urethra from Bulb of Urethra to Bladder Neck (complete obliteration) which caused discomfort to urination. Therefore, the petitioner has suffered immensely. Therefore, I award a sum of Rs.40,000/- towards pain and suffering to the petitioner.
21.CONVEYANCE AND SPECIAL DIET.
Considering the prolonged treatment and the nature of injuries suffered by the petitioner, I award a sum of Rs.8,000/- as compensation towards conveyance and Rs.8,000/- towards special diet to the petitioner.
22. In view of my finding on issue no.1 and 2, the petitioner Dinesh Tiwari is awarded following compensation:-
Medicines and medical treatment Rs.31,000/-
Loss of financial capacity
due to disability Rs.Nil.
Loss of wages Rs.52,200/-
Loss of amenities of life Rs.30,000/-
Pain and Suffering Rs.40,000/-
Conveyance & Special Diet Rs.16,000/-
Total Rs.1,69,200/-
Suit No.458/08 Page 13/16
23. Therefore, petitioner is entitled to compensation of Rs.1,69,200/-. Petitioner is also entitled to interest at the rate of 7.5% per annum from the date of filing of petition i.e. 11/01/2005 till its realization.
Out of the said compensation, a sum of Rs.50,000/- be given in cash to petitioner and remaining amount be deposited in the form of FDR with any nationalized bank for the period of five years without the facility of advance/loan or withdrawal. However, petitioner will be entitled to monthly or quarterly interest as applicable.
24.LIABILITY TO SATISFY THE CLAIM.
Ld.counsel for respondent no. 3, Insurance Company stated that the Insurance Company is not liable to pay any compensation since the copy of permit has not been filed by respondents no.1 and 2.
I have heard arguments and have gone through the case file. Since, respondents no.1 and 2 were proceeded ex-parte, hence they have neither not stepped in the witness box nor they have produced the permit before the Court or before the Insurance Authorities. No evidence was lead to controvert the claim of the Insurance company. Therefore, since the permit was not produced by respondents no.1 and 2, I am inclined to grant recovery rights to the Insurance Company.
Respondent No.1 being driver, respondent no.2 being owner and respondent no.3 being insurer of the offending vehicle are jointly and severally liable to make payment of compensation to the petitioner.
Suit No.458/08 Page 14/1625. Respondent No.3, Insurance Company is directed to directly deposit the award amount with the Nodal Officer of State Bank of India, Tis Hazari Court Branch, Delhi within 30 days. Insurance Company/driver/owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, the notice of the deposit to the claimant and the calculation of interest in the Court within 30 days from today.
In case the Insurance Company fails to do so, General Manager of Insurance Company will file reasons for non-compliance.
In case of further delay, the Insurance Company will deposit the cheque alongwith the cost of Rs.5,000/- without any further directions as per Judgement of New India Assurance Company Ltd. Vs. Kashmiri Lal, 2007 ACJ 688. Nazir will report to the undersigned if the cheques in this case are not received within 30 days of passing of this Judgement. Nazir to note the particulars of the award amount etc. in his register today. Copy of the order be given dasti to respondent no.3 for compliance and copy of this order and information be also sent to General Manager of Insurance Company.
The petitioner will file two sets of photographs alongwith their specimen signatues out of which one set be sent to the Nodal Officer of the Bank alongwith copy of the award by the Nazir and the second set shall be retained in the Court for further reference. The photographs be got stamped and be sent to the Bank. The proof of residence and details of the bank account be also provided by the petitioners within seven days to the Nazir.
Suit No.458/08 Page 15/16File be consigned to Record Room.
Announced in open court (SWARANA K.SHARMA)
on 20/07/2010. JUDGE : MACT : DELHI
Attested copy prepared by the Reader
and given to Ahlmad today itself
Suit No.458/08 Page 16/16