Delhi District Court
Sh. Rakesh Kumar vs Sh. Shakir Ahmed on 7 May, 2015
Rakesh Kumar V. Shakir Ahmed
IN THE COURT OF MR. RAJENDER KUMAR SHASTRI: PO:MACT1
(NORTH): ROHINI: DELHI
Suit No. 925/09
Sh. Rakesh Kumar
S/o. Late Sh. Ram Avtar
R/o. A 12, Aman Vihar,
Hari Enclave, Kirari, Delhi.
.... Petitioner
Vs.
1. Sh. Shakir Ahmed
S/o. Sh. Allaudin
R/o 185 Shaha Nathan,
Meerut Distt. UP .
2. The New India Assurance Co. Ltd.
Branch Office at 201/205, Metro Plaza,
Delhi Road, Meerut, UP
.....Respondents.
Present: Petitioner in person.
None for respondent no. 1
Mr. R. K. Mittal, Advocate for respondent no.2
(New India Assurance Co. Ltd. )
DATE OF INSTITUTION : 03.07.2009
JUDGMENT RESERVED ON : 22.04.2015
DATE OF JUDGMENT : 07.05.2015
JUDGMENT
1. As per case of the petitioner, he is driver by profession. In the Suit no. 925/09;FIR 303/09 page1 of pages 11 Rakesh Kumar V. Shakir Ahmed intervening night of 23/04/200924/04/2009, he was going to Ghonda, UP from Delhi, driving his truck. When he reached near Barreily, another truck bearing no. HR 38B 0210 being driven in a rash and negligent manner came from Barreily side and hit him. He suffered grievous injuries including fracture on right arm and right leg. He was removed to a hospital at Barreily from where, he was shifted to Sanjay Gandhi Memorial Hospital, Delhi. He remained hospitalised in this hospital from 28.04.2009 to 21.05.2009 and FIR no. 303/09 was registered in PS Meerganj, Barreily for offence punishable u/s. 279/338/427/304A IPC.
2. Contending that resp. no. 1 is the owner of the offending truck and said vehicle as insured with resp no.2. Petitioner claimed a sum of Rs. 30,00,000/ (rupees thirty lacs) as compensation alongwith 18% interest from the date of filing of petition till actual realisation of the amount. According to the petitioner, he did not know the name of the driver. It was for resp. no. 1 to tell his name.
3. Respondent no. 1 filed written statement, but did not disclose the name of the diver. Plea of resp. no. 1 was very vague. He simply mentioned that he did not admit the contents and petitioner be put up to strict proof.
4. Respondent no. 2 did not deny the fact that the offending Suit no. 925/09;FIR 303/09 page2 of pages 11 Rakesh Kumar V. Shakir Ahmed vehicle was insured with it but claimed that same was not responsible to pay any compensation as driver of the offending vehicle was not holding any valid and effective driving licence at the time of the accident.
5. On the basis of pleading of the parties, following issues were framed on 28.07.2010.
(i) Whether the petitioner received injuries in the road side accident occurred in the intervening night of 23/24.04.2009 at Bareilly, UP due to rash and negligent driving of resp. no. 1/driver of the offending vehicle no. HR 38 B 0210? OPP.
(ii) Whether the petitioner is entitled to compensation as prayed for, if so, to what extent and from which of the respondents? OPP.
(iii) Relief.
6. In order to prove his case, petitioner examined himself as PW1 and Sh. Naresh Chander, the medical record officer as PW2. None from respondents opted to adduce any evidence.
7. I have heard petitioner in person and Ld. Counsel appearing on behalf of resp. no.2. My findings issuewise as under: ISSUE NO.1
8. Petitioner in his affidavit reiterated facts of his case. According to him, while driving his truck, he was going from Delhi Suit no. 925/09;FIR 303/09 page3 of pages 11 Rakesh Kumar V. Shakir Ahmed to Ghonda a truck no. HR 38B 021 came from Barreily side being driven rashly and negligently. It hit him without blowing any horn. He suffered injuries including fracture on right arm and leg. He was removed to Barreily hospital and then shifted to Sanjay Gandhi Hospital. FIR no. 303/09 was recorded in this regard in PS Meerganj, Barreily, UP. Medical record of petitioner put on file proves injuries suffered by him. Petitioner is injured and hence, is natural eye witness of the accident.
9. I have no reason to disbelieve his testimony. More over,the plea of the petitioner that the accident in question was caused due to rash and negligent driving of respondent no. 1 was not rebutted by evidence led by respondents particularly, respondent no. 1 i.e. the driver. The latter filed vague and evasive reply /written statement. He did not deny said claim of petitioner specifically. Considering all this, I have no hesitation in coming to conclusion that said accident took place due to rash and negligent driving of truck bearing no. HR38B021 by respondent no. 1 i.e Shakir Ahmed. This issue is decided in favour of petitioner and against the respondents.
ISSUE NO.2
10. Apart from deposition of petitioner as PW1, the injuries Suit no. 925/09;FIR 303/09 page4 of pages 11 Rakesh Kumar V. Shakir Ahmed suffered by him are well established from the statement of Sh. Naresh Chander (PW2) is medical record officer from Baba Saheb Ambedkar Hospital. According to said witness, Rakesh Kumar i.e. petitioner was admitted in their hospital , OPD ticket Ex.PW2/B, certificate from B, copy of which is Ex.PW2/C, copy of disability certificate is Ex.PW2/A, copy of Xray /special investigation report, is Ex.PW2/F. When it is well proved that petitioner suffered injuries, same is well within his rights to claim compensation.
11. As per petitioner, due to accident in question, he suffered grievous injuries including fracture of right arm and right leg. According to disability certificate well proved from statement of PW2, petitioner suffered 56 % permanent physical impairment. According to medical board who gave certificate, there is no likelihood of petitioner to be improved. It is urged by ld. Counsel for petitioner that what to say of 56% permanent disability, petitioner has become crippled and 100 % incapable to do his job i.e. driving and hence, he will not be able to earn anything. True, arm and leg primarily right are tools of a driver, without which same can not function. In such a circumstance, petitioner has become incapable permanently atleast to drive vehicle, a job, doing which he was eking out his livelihood.
Suit no. 925/09;FIR 303/09 page5 of pages 11 Rakesh Kumar V. Shakir Ahmed
12. Although, petitioner claims that he was earning Rs. 10,000/ as a driver. There is no other evidence except deposition of petitioner (PW1) to verify said fact. No reasons to disbelieve that petitioner was working as a driver. Even otherwise, from the facts of the case, it is well established that he was driving a truck at the time when offending vehicle i.e. another truck hit him. A driver can be taken as a skilled worker having skill to drive. The minimum wage of a skilled labourer at the relevant time was Rs. 4,358/ per month. To calculate loss of income for a person for his entire life, in my opinion, it will not be proper to take minimum wage of a particular time when accident took place. This Tribunal can take notice of the fact that perhaps due to inflation or devaluation of rupee, minimum wage of workers are increasing constantly. For example, as mentioned above, at the time of accident, minimum wage of skill labourer was Rs. 4,358/ w.e.f. 01.02.09. It was increased to Rs. 4,377/ w.e.f. 01.08.09 and again to Rs. 6,448/ w.e.f. 01.02.10 and then Rs. 7,410/ from 01.02.2011 and kept on increasing, same are Rs.10,998/ w.e.f. 01.04.15 . Even if, 50% of minimum wage is added due to inflation or devaluation of rupee, same comes to Rs. 4,358/ + 2179= 6,537/ i.e. much below minimum wage of present time i.e. Rs. 10,998/ . Petitioner is stated Suit no. 925/09;FIR 303/09 page6 of pages 11 Rakesh Kumar V. Shakir Ahmed to be aged 37 years. Seeing his status and circumstances, if it is presumed that he would have worked till the age of 60 years i.e. retirement age of most of government servants, he would have worked for 23 more years. Having his average income of Rs. 6,537/ per month, he would have earned Rs. 6,537x23x12= 18,04,212/.
13. As mentioned above, according to medical board, petitioner has suffered 56% permanent disability, even if, it is presumed that his working capacity has been reduced to 56%, due to accident in question and not 100% as claimed by counsel for petitioner, partial loss of income can be calculated as Rs. 6537x56/100 i.e. comes to Rs. 10,10,358/72p.
14. This amount is allowed to the petitioner as loss of future income. Petitioner has claimed Rs.1,20,000/ i.e. loss of income for one year (during treatment) at the rate of Rs. 10,000/ per month. As discussed earlier, there is no evidence to show that petitioner was earning Rs. 10,000/ per month. Even if, during this period of one year, his income is taken as minimum wage of a skilled labourer i.e. Rs. 4,358/ per month , loss of his income during the period of treatment of one year, comes to Rs. 4,358 x 12= Rs. 52,296/.
15. The petitioner has claimed to have spent a sum of Rs. Suit no. 925/09;FIR 303/09 page7 of pages 11 Rakesh Kumar V. Shakir Ahmed 10,664/ on medicines. Medical bills are put on file. The amount of which comes to Es. 10,423.28 p.m. This amount is granted to the petitioner.
16. Apart from all this, petitioner has claimed a sum of Rs. 20,000/ as costs of special diet and conveyance charges during treatment. This amount does not appear unreasonable for a person having suffered injuries, like the petitioner. Same is also allowed to him. Considering the severity of injuries having suffered by the petitioner, the same is also allowed a sum of Rs. 2 lakhs for pain and suffering and 2 lakhs for loss of enjoyment of life, making a total of Rs. 14,93,077/72p., detail of which is given as under:
1. Loss of future income Rs. 10,10,358/
2. Loss of income during Rs. 52,296/ treatment period
3. Medical bills Rs. 10,423/
4. Special diet &Conveyance Charges Rs. 20,000/
5. Pain & suffering Rs. 2,00,000/
6. Loss of enjoyment of life Rs. 2,00,000/ Total compensation Rs. 14,93,077/
17. It did not remain in dispute that offending vehicle was insured with respondent no. 2. The latter is held responsible to pay amount of compensation. As mentioned above, according to respondent no. 2/New India Assurance Company Ltd., driver of offending vehicle was not having Suit no. 925/09;FIR 303/09 page8 of pages 11 Rakesh Kumar V. Shakir Ahmed a valid and effective licence at the time of accident. This fact was not proved on record as none from the respondents opted to lead any evidence. Even then,respondent no. 2 is free to take any action against other respondent i.e. respondent no. 1, if feels that the latter was responsible to make payment, having violated any terms and conditions of insurance policy. This issue is decided in faour of petitioner and against the respondents. RELIEF:
18. Petition in hands is allowed. Respondent no. 2 is directed to pay a sum of Rs. 14,93,077/ to the petitioner as compensation within 30 days from today alongwith interest @ 9% per annum from the date of filing of this petition till realisation of amount. 50% of this amount to be invested in fixed deposits for a period of 2, years with any nationalised bank.
File be consigned to record room.
ANNOUNCED IN THE OPEN (RAJENDER KUMAR SHASTRI) Court on 07.05.2015 PO,MACT NORTH,ROHINI, DELHI Suit no. 925/09;FIR 303/09 page9 of pages 11 Rakesh Kumar V. Shakir Ahmed Suit NO. 925/09 07.05.2015:
Present: Petitioner in person
None for respondent no. 1
Mr. R. K. Mittal, Advocate for respondent no.2 (New India Assurance Co. Ltd. ) Vide separate Judgment, dictated and announced in the court today, petition is disposed of .
File be consigned to Record Room.
Copy of this order/judgment be given dasti to the petitioner as well as respondents, free of costs.
PO,MACT-1 (N),ROHINI, DELHI/07.05.2015 Suit no. 925/09;FIR 303/09 page10 of pages 11 Rakesh Kumar V. Shakir Ahmed Suit No.925/09 29.04.2015.
Present : Proxy counsels for parties.
Arguments heard.
To come on 07.05.2015 for orders.
PO,MACT1(N)ROHINI,
DELHI / 29.04.2015.
Suit no. 925/09;FIR 303/09 page11 of pages 11