Delhi District Court
Vinod vs Mohd. Akil S/O Sh. Riazuddin on 21 August, 2013
IN THE COURT OF REETESH SINGH,
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST),
KARKARDOOMA COURTS, DELHI.
MACT PETITION NO. 149/09
Date of institution of the case : 21.03.2009
Date on which Award/Judgment was reserved : 21.08.2013
Date on which Award/Judgment was pronounced : 21.08.2013
Unique ID No. : 02402C
IN THE MATTER OF:
Vinod
Son of Sh. Kishan,
R/o Bhopura Kuti, Krishna Vihar, Opp. Nikita Inter College,
Bhopura, Distt. Ghaziabad, U.P.
(Through his father and N/G Sh. Kishan)
......PETITIONER
VERSUS
1. Mohd. Akil S/o Sh. Riazuddin
R/o Noor Nagar, Sihani Gate, Ghazibad Distt.
Ghaziabad, U.P.
2. Naresh Kumar S/o Sh. Guljar Singh
R/o Village Pasvada, PS Kilaparikshit Garh,
Distt. Meerut, U.P.
3. Oriental Insurance Company Limited,
88, Janpath, Connaught Place,
New Delhi.
...... RESPONDENTS
AWARD:-
1. The present petition has been filed by the petitioner, a minor through his father, under the provisions of sections 140 and 166 Motor Vehicles Act, 1988 (hereinafter referred to as the said Act) seeking grant of compensation on account of injuries and permanent disability suffered by the petitioner.MACT NO. 149/09 Page 1/8
2. The case set up by the petitioner is that on 15.01.2009 at around 05.00 PM he was traveling as a pillion rider on bicycle driven by his father. When they reached near 64 Foota road at Sadatpuri Crossing, Seemapuri road, Delhi, at that time a bus bearing registration no. DL-1PK-1255 being driven rashly and negligently by the respondent no. 1 came from behind and hit the cycle. The petitioner fell on the road and sustained injuries described as compound fracture on hip joint, fracture of pelvis, injuries on the back side, abrasions and blunt injuries all over the body. The petitioner was taken by the police to GTB Hospital where he remained admitted between 16.01.2009 to 01.05.2009. It is stated that external rods had to be applied on the leg of the petitioner who also underwent skin grafting 4 to 5 times. It is averred that a testicle of the petitioner was badly damaged.
3. It is stated that the father of the petitioner who was working as beldar could not do any work and lost income at the rate of Rs.5000/- per month for about 8 months during the course of the treatment of the petitioner. It is stated that the petitioner has suffered permanent disability and his marriage prospects have been adversely affected.
It is stated that the petitioner will not be able to get employment in paramilitary services. Petitioner has claimed that Rs.50,000/- was spent on his treatment, Rs.40,000/- on special diet and Rs.40,000/- on conveyance.
4. FIR No. 11/2009, PS Nand Nagri, under sections 279/337 IPC was registered arising out of the said accident.
5. Joint written statement has been filed by the respondent no. 1 and 2 in which the respondents have not denied the accident but have claimed that no negligence was committed by the respondent no. 1. It is averred that it was the father of the petitioner who was negligent and responsible for the accident. It is stated that the vehicle in question was insured with the respondent no.3. In its Written statement, respondent no. 3, has stated that the offending vehicle was insured with it on the date of the accident. ISSUES
6. On the basis of the pleadings, by order dated 31.03.2010 the following issues were framed:-
(i) Whether the petitioner suffered injuries on account of rash and negligent driving MACT NO. 149/09 Page 2/8 of vehicle bearing no. DL-1PA-1255 by respondent no. 1. (OPP)
(ii) Whether the petitioner is entitled to any compensation? If so, to what amount and against whom? (OPP)
(iii) Relief?
7. The father of the petitioner Sh. Kishan examined himself as PW-1 and deposed by way of affidavit Ex.PW1/A. The petitioner examined Sh. Kapileshwar, Statistical Assistant GTB Hospital as PW2, Dr. Lalit Kumar, Senior Resident (Ortho), GTB Hospital as PW3 and Dr. Naveen Sharma, Department of Surgery, GTB Hospital as PW4 and then closed his evidence. The respondent no. 1 and 2 did not appear after filing the written statement and were proceeded ex-parte. The respondents no. 1 and 2 did not cross examine the witnesses of the petitioner. They did not step into the witness box. The respondent no. 3, Insurance Company examined Sh. H. Rai its Deputy Manager as R3W1 who deposed by way of affidavit Ex.R3W1/1. He was not subjected to any cross examination by respondents 1 and 2 who were ex-parte.
8. I have heard the counsel for the parties and perused the record of the case. My findings issue wise are as under:-
ISSUE NO. 19. The petitioner has examined his father as PW-1 and deposed by way of affidavit Ex.PW1/A. His evidence is on the lines of the petition. He was not subjected cross examination by respondent no. 1 and 2 who were ex-parte. He was only cross examined by the counsel for the respondent no.3 which was restricted to the claim towards expenses arising out of the treatment of the petitioner. The respondent no. 1 and 2 themselves did not step into the witness box. Petitioner has placed on record the copy of the FIR arising out of the accident. In the opinion of this Court there is sufficient evidence for the purposes of the present matter to hold that the petitioner suffered injuries due to the involvement of the offending vehicle being driven rashly and negligently by the respondent no. 1. Issue no. 1 is decided in favour of the petitioner and against the respondents.
MACT NO. 149/09 Page 3/8 ISSUE No. 210. In view of issue No. 1 being decided in favour of the petitioner, I hold that the petitioner is entitled to compensation. As regards, the quantum of compensation, petitioner has relied upon the evidence of his father PW1, official from GTB Hospital as PW2, Dr. Lalit Kumar PW3 and Dr. Naveen Sharma PW4.
11. PW1 as recorded above has deposed by way of affidavit that his son suffered compound fracture on hip joint, fracture of pelvis, injuries on the back side, abrasions and blunt injuries all over the body and that he remained hospitalized in GTB Hospital between 16.01.2009 to 01.05.2009. His cross examination was mainly in the line of denials to suggestions given by the counsel for respondent no.3.
12. PW2 proved the MLC and treatment record of the petitioner as Ex.PW2/A (colly). As per the patient discharge summary, the petitioner remained hospitalized between 16.01.2009 to 01.05.2009. During this period the petitioner was treated for having suffered fracture of pelvis, skin grafting for extensive degloving injuries and suturing of scrotal laceration after repositioning of testicle and skin grafting. He was also treated for fracture of tibia by traction and sacroillial joint disruption.
13. PW3 Dr. Lalit Kumar deposed that the petitioner was examined by the medical board of GTB hospital and was found to have suffered 16% permanent locomotor impairment on his right lower limb with his condition not likely to improve. He identified his signatures on the disability certificate Ex.PW1/8 at point A. He deposed that the petitioner could not be fit for athletic activities and that he was not sure whether the petitioner would be fit for appointment in paramilitary services. PW3 was not subjected to any cross examination. PW4 Dr. Naveen Sharma deposed that as per the medical notes on record the petitioner underwent suturing of scrotal laceration after repositioning of testicle and skin grafting. In his cross examination by counsel for respondent no.3 he deposed that the petitioner would not suffer any disability in terms of reproductive or sexual abilities.
14. The Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar reported in (2011) 1 SCC 343 was pleased to hold that that Tribunals ought to assess the MACT NO. 149/09 Page 4/8 permanent disability of the victim in relation to the functional disability suffered in relation to the whole body and not go by the percentage of disability assessed with respect to a particular part of the body. However since the petitioner in the present case is a minor child, I take the disability suffered by the petitioner to be 16% in relation to his entire body.
15. In cases of serious injury, the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar (Supra) observed that where there is specific medical evidence corroborating the evidence of the claimant, compensation ought to be granted under the following heads:-
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(i) Damages for pain, suffering and trauma as a consequence of the injuries.
(ii) Loss of amenities (and/or loss of prospects of marriage).
(iii) Loss of expectation of life (shortening of normal longevity).
16. Applying the principles laid down by the as the Hon'ble Supreme Court in the case of Raj Kumar v. Ajay Kumar (supra) I shall now proceed to assess the compensation to which the petitioner is entitled. The functional disability of the petitioner has already been assessed as 16% in relation to his entire body. As per the petition, the petitioner was aged 15 years on the date of the accident. As per Ex.PW1/5, birth certificate, his date of birth is 03.11.1993. Being minor, his income is to be considered on the basis of clause VI of second schedule appended with section 163A of the M.V. MACT NO. 149/09 Page 5/8 Act i.e. Rs.15,000/- p.a. The petitioner has also become entitled for 50% future increase thereby his income has to be taken as Rs.22,500/- p.a. The maximum multiplier of 15 would be attracted. The compensation payable to the petitioner on account of suffering permanent disability is assessed as under:
(a) Annual income prior to the accident : Rs.22,500/-
(b) Loss of future earning per annum
(16% of the prior annual income) : Rs.3,600/-
(c) Multiplier applicable with reference to age: : 15
(d) Loss of future earnings: ( 3600x 15) : Rs.54,000/-
17. As far as the medical expenses incurred are concerned, the petitioner has placed on record bills amounting to Rs.5050/-. The petitioner has not placed on record any documentary evidence of his expenses towards transportation and special diet. However, the petitioner was in hospital on 16.01.2009 to 01.05.2009. Keeping in view the nature of injuries and permanent disability suffered, I award the following amounts in his favour under the categories mentioned hereunder:-
(I) PECUNIARY DAMAGES
(a) Expenses relating to treatment, hospitalization, Rs.50,000/-
medicines, transportation, nourishing food, and miscellaneous expenditure.
(b) Future medical expenses. NIL
(c) Loss of wages Rs.54,000/-
(II) NON-PECUNIARY DAMAGES
(a) Damages for pain, suffering and trauma
as a consequence of the injuries. Rs.1,00,000/-
TOTAL Rs.2,04,000/-
18. An award of Rs.2,04,000/- is passed in favour of the petitioner and against the respondent no.3 along with interest at the rate of 7.5% per month w.e.f. date of filing of the petition.
MACT NO. 149/09 Page 6/8LIABILITY
19. There is a dispute relating to the liability to bear the assessed compensation. The respondent no.3 insurance company examined its deputy manager as R3W1 who deposed by way of affidavit Ex.R3W1/1. In his examination in chief, R3W1 deposed that as per the verification report of the permit of the offending vehicle the route / permit was valid only from Modinagar to Kalindi Kunj via Muradnagar, Raj Nagar Section-23 ALT Center, Hapur Chungi, Swadesia Litex, Bulandshahar road industrial area, Lal Kuan, Vijay Nagar, CISF More, Kodha Colony, Kalindikunj (Old Bus stand) but the driver of the offending vehicle plying the vehicle on Seemapuri Road, Delhi at the time of the accident. It was deposed that since violation of the route permit amounted to violation of the policy, the insurance company would not have any liability. The insurance policy was exhibited as Ex.R3W1/B. It was further deposed that although notice under Order 12 Rule 8 CPC Ex.R3W1/C was sent to the owner of the vehicle to produce the original permit, the same was not produced. The investigation report regarding the permit was exhibited as Ex.R3W1/E (Colly). The report enclosed the copy of SR26 issued from Ghaziabad Transport Authority in respect of the offending vehicle. R3W1 was not subjected to any cross examination on the part of respondents 1 and 2 as they were ex- parte.
20. In the case of Bajaj Allianz General Insurance Company Ltd. vs. Vibishan Mahto @ Vibhishan Prasad & Ors. MAC App. No. 756/2010 decided on 04.12.2012, the Hon'ble High Court in para no.8 was pleased to hold that cases where the vehicle does not possess a valid permit at all for the area where it was being plied would amount to violation of the conditions of the insurance policy. In the present case as per the evidence of respondent no.3, the vehicle was being plied in an area for which he did not have a permit. In these circumstances, it is therefore held that the liability to bear the assessed compensation will be on the respondents 1 and 2 but the same shall be deposited by the respondent no.3 insurance company with the right to recover the same from the respondents 1 and 2.
MACT NO. 149/09 Page 7/8DISBURSEMENT
21. The respondent no. 3, Insurance Company shall deposit the awarded compensation within thirty days of the award with up to date interest in this Court failing which the petitioner shall be entitled to penal interest at the rate of 12% per annum from the date of the award till the date of deposit.
22. Copy of this award be given free of cost to the petitioner and respondent no. 3, Insurance Company.
23. File be consigned to the Record Room.
Dictated to the Steno and announced in the Open Court today i.e. 21.08.2013 (REETESH SINGH) ADDL. DISTT. JUDGE-01 (NE) KARKARDOOMA COURTS, DELHI MACT NO. 149/09 Page 8/8