Delhi District Court
Vikas Dhingra vs . Naresh Kumar Gupta on 10 February, 2012
Vikas Dhingra Vs. Naresh Kumar Gupta
1
IN THE COURT OF SHRI SANJIV JAIN : PRESIDING OFFICER : MACT02
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
In Suit No. 651/10
Vikas Dhingra @ Vickey
S/o Sh. Birbal
R/o 220, Vinobapuri,
Lajpat NagarII,
New Delhi.
...... Petitioner
Versus
Naresh Kumar Gupta
S/o Sh. R K Gupta
R/o G79, Lajpat NagarI,
New Delhi.
......Respondents
Date of Institution : 24.12.2005
Date of reserving of judgment/order : 24.01.2012
Date of pronouncement : 10.02.2012
J U D G M E N T :
1. This petition u/s. 166 & 140 of the M.V. Act, 1988 as amended upto date (hereinafter referred to as Act) has been filed by Vikas Dhingra Suit No. 651/10 Page No.1/17 Vikas Dhingra Vs. Naresh Kumar Gupta 2 claiming a compensation of Rs. 5,00,000/ for the injuries sustained by him in an accident which took place on 07.04.05 at about 8.40 PM near gate no. 3, Jal Vihar Road, Lajpat Nagar, New Delhi.
2. The case of the petitioner in brief is that on 07.04.05 at about 8.40 PM he was coming home on a scooter bearing no. DL 3S AF 2079. When he reached near gate no.3, Jal Vihar, Lajpat Nagar, a scooter bearing no. DL 3S R 2545 came from the opposite side being driven by respondent at a fast speed and hit his scooter. He fell down on the road and sustained multiple injuries including fracture in his skull near left eye. He was removed to Ashwani clinic. Since his condition was serious, he was taken to AIIMS. He was 22 years of age, a student of BCA however this accident put a question mark on his career prospects. It was stated that the petitioner has spent about Rs. 50,000/ on his treatment which is still undergoing. He has become blind from one eye. His marriage prospects have also affected due to this disability.
3. Notice of the petition was given to the respondent. He denied that he Suit No. 651/10 Page No.2/17 Vikas Dhingra Vs. Naresh Kumar Gupta 3 was driving the scooter rashly and negligently. Rather he alleged that due to rash and negligent driving of his scooter by the petitioner, he met with the accident and remained hospitalised for more than four days. He alleged that a false case was got registered against him by the petitioner to cover up his mistake.
4. From the pleadings, following issues were framed vide order dated 14.09.2006 : i. Whether the petitioner suffered injuries in an accident which took place on 07.04.05 at about 8.40 PM involving scooter bearing no. DL 3S R 2545 driven and owned by respondent no.1?
ii. Whether the petitioner is entitled for compensation, if so, to what extent and from whom?
iii. Relief.
5. Parties were thereafter called upon to substantiate their case by leading evidence.
6. The petitioner tendered his affidavit in evidence Ex.PW1/A, copy of his Suit No. 651/10 Page No.3/17 Vikas Dhingra Vs. Naresh Kumar Gupta 4 Icard, CBSE certificate, MLC, OPD cards, school certificate, examination receipt, disability certificate, medical bills and the charge sheet Ex.PW1/A1 to Ex.PW1/12. He stated that his scooter was not insured at the time of accident, however, he had a valid license. His brother had given the information to the police. He was discharged from AIIMS on 09.04.05 and thereafter treated by some Ayurvedic doctor. He was in the fifth semester of BCA at the time of accident.
7. Respondent also appeared in the witness box as RW1 and tendered his affidavit Ex.RW1/1 stating that the petitioner has filed a false case against him. He stated that on 07.04.05 at about 8.30 PM when he was going to Kasturba Niketan on his scooter at a normal speed, the petitioner came from the opposite direction on his scooter at a high speed and hit his scooter. He stated that he was on his left side. Rather the petitioner turned his scooter on his right side. He stated that he was admitted in Mata Channan Devi hospital at Janakpuri and discharged on 12.04.05. He could not move from bed for two months. He stated that he has also filed a criminal complaint against the petitioner. He placed on record the copy of the complaint, Suit No. 651/10 Page No.4/17 Vikas Dhingra Vs. Naresh Kumar Gupta 5 discharge summary, statement of witnesses and order sheets Ex.R1W1 (colly.). He stated that the speed of the scooter was about 3035 kmph. just before the accident. He also examined Sh. B R Bhalla as RW2 and Dr. Shefali Bhasin as RW3.
RW2 is the eyewitness of the accident. He stated that he was walking after dinner. Near Jal Vihar he saw the respondent coming towards Kasturba Niketan on a scooter at a normal speed. In the meantime another person came from Kasturba Niketan side on his scooter at a high speed driving it on the wrong side. He suddenly turned his scooter to his right side and dashed the scooter of the respondent. He stated that due to rash and negligent driving of scooter DL 3S AF 2079, respondent sustained injuries on his head and forehead. He stated that the respondent was on the left side of the road. It was a single road. The road was not so busy. He stated that at the time of taking right turn, the speed of the scooter of the petitioner was 3040 kmph. He denied that he did not see the accident.
RW3 proved the discharge summary of the respondent Ex.RW1/1 Suit No. 651/10 Page No.5/17 Vikas Dhingra Vs. Naresh Kumar Gupta 6 stating that he was hospitalised in Mata Channan Devi hospital in ICU from 08.04.05 to 11.04.05. He had head injuries. He spent a sum of Rs. 13023/ which amount was paid from the mediclaim policy.
8. Dr. Mohit Jain from Dr. Rajender Prasad Centre, AIIMS was examined by the Court as CW1. He proved the disability certificate Ex.CW1/1 issued by the hospital where it was opined that the petitioner has 30% visual disability which is nonprogressive. He stated that this visual disability usually does not cause much discomfort except less field vision during driving or depth perception. He can do routine functions comfortably and do personal driving. This visual disability will not affect on his working on computers.
9. I have heard the arguments advanced by Ld. counsel Sh. Sanjeev Malik for the petitioner and Sh. Sanjay Kumar for the respondent and perused the record.
I S S U E N O . 1
10. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving in a petition Suit No. 651/10 Page No.6/17 Vikas Dhingra Vs. Naresh Kumar Gupta 7 under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal is simply to quantify the compensation which is just rational and reasonable on the basis of inquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs. New India Assurance Co. Ltd. 2001 ACJ 421 SC.
11. The petitioner examined as PW1 has stated that he was going on his scooter on the correct side of the road. Near Jal Vihar, gali no.3, the offending scooter being driven in a rash and negligent manner came from the opposite side and hit his scooter. He fell down on the road and sustained injuries. He stated that the accident had occurred due to the absolute negligence on the part of the driver of the scooter bearing no. DL 3S R 2545. He filed the copy of the charge sheet Ex.PW1/12, FIR Ex.PW1/13, seizure memo of the scooter Ex.PW1/14, mechanical inspection report Ex.PW1/15 and the arrest memo of the respondent Suit No. 651/10 Page No.7/17 Vikas Dhingra Vs. Naresh Kumar Gupta 8 Ex.PW1/16. Perusal of the charge sheet reveals that the case was registered on the statement of Sh. Kul Bhushan. He had stated that he and his friend Ajay Arora were strolling on the road. A scooter no. DL 3S AF 2079 came from the side of MCD office in front of the gate, which was hit by the scooter bearing No.DL 3S R 2545 which came from inside the Jal Vihar Colony. He stated that the scooter was being driven at a fast speed in a rash and negligent manner. He had stated that the injured Vinod Dhingra was his neighbour and the accused Naresh Gupta also lives in Lajpat Nagar area whom they know from before.
12. In this case the petitioner neither examined Kul Bhushan nor Ajay Arora who were allegedly present at the time of accident. There is no denial from this fact that there was a headoncollision of two scooters. The respondent and his witness examined as RW1 and RW2 have deposed on the contrary. They have stated that the respondent / RW1 was coming on his correct side at a normal speed rather PW1 was coming at a fast speed and near the scooter of RW1, he all of a sudden turned his scooter to his right and hit his scooter. They alleged that the Suit No. 651/10 Page No.8/17 Vikas Dhingra Vs. Naresh Kumar Gupta 9 accident had occurred due to rash and negligent driving by PW1. RW1 has also filed a complaint in the Court U/s 200 Cr.P.C. He placed on record the proceedings of the Court Ex.RW1/1. Both petitioner and respondent sustained injuries as evident from the discharge summary placed on record. Looking into the evidence on record and the documents, I find it a case of contributory negligence. The speed of both the vehicles were almost the same. There was a headon collision. It was a single road. Had both been vigilant, possibility of accident could have been avoided. Facts and circumstances show that both petitioner and respondent were blame worthy in the proportion of 50% 50%.
13. Viewed thereof, I am of the opinion that the petitioner has suffered injuries in the accident partly because of his own negligence and partly because of the negligence of respondent. Issue no.1 is decided accordingly.
I S S U E N O . 2
14. The petitioner has claimed Rs. 5,00,000/ as compensation in respect of the injuries sustained by him. In a road accident a person is entitled Suit No. 651/10 Page No.9/17 Vikas Dhingra Vs. Naresh Kumar Gupta 10 to compensation for the pecuniary and nonpecuniary damages.
15. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "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 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 non pecuniary 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 ie. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of Suit No. 651/10 Page No.10/17 Vikas Dhingra Vs. Naresh Kumar Gupta 11 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."
Let me assess the compensation which the petitioner is entitled for under different heads.
COMPENSATION FOR EXPENSES INCURRED ON MEDICAL TREATMENT
16. PW1 has stated that from the spot he was taken to Ashwani clinic at Lajpat Nagar and thereafter to AIIMS. He remained admitted in the hospital from 07.04.05 to 09.04.05. At the time of discharge, he was advised bed rest and to come at Dr. Rajendra Prasad hospital for treatment of his eye. He proved the MLC Ex.PW1/1 and stated that he sustained grievous injuries in his left eye. He visited many places for his treatment. He placed on record the OPD cards Ex.PW1/2 to Ex.PW1/4. He stated that he incurred Rs. 1.0 lakh on his treatment. He placed on record the bills and the OPD cards Ex.PW1/10 to Ex.PW1/11. CW1 has stated that due to the injuries the petitioner has Suit No. 651/10 Page No.11/17 Vikas Dhingra Vs. Naresh Kumar Gupta 12 suffered from 30% visual disability which is non progressive. On the MLC the injuries were opined grievous. The bills placed on record are of the amount Rs. 5,938/. Looking into the injuries and his followup, I award a sum of Rs. 15,000/ on account of medical expenses which he might have incurred during his treatment.
COMPENSATION FOR PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
17. Testimony of PW1 shows that due to the accident, he sustained injuries on the portion below his left eye. He has 30% visual disability nonprogressive. He remained admitted in the hospital for 03 days and followed up his treatment as an OPD patient. He also took Ayurvedic treatment. His treatment is still continuing. Looking into the injuries and the facts and circumstances of the case, I award a sum of Rs. 30,000/ towards pain & sufferings.
COMPENSATION FOR SPECIAL DIET, ATTENDANT CHARGES AND CONVEYANCE CHARGES :
18. PW1 has stated that due to the accident he remained admitted in the Suit No. 651/10 Page No.12/17 Vikas Dhingra Vs. Naresh Kumar Gupta 13 hospital for 03 days. He had fracture below the portion of left eye. He remained bed ridden for long. He could not pursue his studies and lost about one year. He is still on medication. Taking into consideration, the multiple injuries and all the facts, I award a sum of Rs. 20,000/ towards special diet, conveyance and attendant charges. COMPENSATION FOR LOSS OF STUDIES / INCOME:
19. The petitioner was pursuing his BCA. He was in fifth semester. He lost one year of his studies. He was hard working and brilliant. The injuries made him visually disabled. CW1 has stated that this disability would not cause much discomfort to the petitioner but he would have less field vision during driving and depth perception. He has to avoid professional driving. The disability is nonprogressive. He was 23 years of age at the time of accident. Although CW1 has stated that the petitioner can do routine functions comfortably, can do personal driving and this disability would not affect his work on computers but he has also stated that he would have less field vision. I am of the view that this disability would have some effect on his future and marriage prospects. I therefore award a sum of Rs. 50,000/ towards loss of Suit No. 651/10 Page No.13/17 Vikas Dhingra Vs. Naresh Kumar Gupta 14 studies / income and future prospects and Rs.25,000/ as compensation towards marriage prospects.
20. Thus the total compensation in favour of the petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 15,000/
PAIN & SUFFERINGS &
ENJOYMENT OF LIFE : Rs. 30,000/
SPECIAL DIET, ATTENDANT &
CONVEYANCE CHARGES : Rs. 20,000/
LOSS OF STUDIES/INCOME / : Rs. 50,000/
FUTURE PROSPECTS
LOSS OF MARRIAGE : Rs. 25,000/
PROSPECTS
===========
: Rs. 1,40,000/
It has come on record that petitioner was paid interim compensation vide order dated 17.01.2007) which amount is to be deducted from the total compensation.
L I A B I L I T Y
21. As the offending vehicle was being driven and owned by respondent therefore, primary liability to compensate the petitioner remains with Suit No. 651/10 Page No.14/17 Vikas Dhingra Vs. Naresh Kumar Gupta 15 that of respondent. The vehicle is stated to be not insured. Thus, he is liable to compensate the petitioner. Being a case of contributory negligence, the respondent is liable in proportion of 50%.
R E L I E F
22. In view of my findings I award a sum of Rs.70,000/ {(50% of Rs.
1,40,000/) Rs.25,000/ (Interim compensation) = Rs.45,000/} as compensation with interest @ 9 % per annum from the date of filing the petition till the date of its realization in favour of the petitioner and against the respondent on account of his liability.
23. Respondent is directed to pay the awarded amount by way of cheque in favour of the petitioner, to be deposited in this Tribunal, within a period of 30 days of this order failing which he shall be liable to pay future interest @ 12% per annum on the awarded amount till its realization (for the delayed period). He shall intimate the petitioner about depositing the cheque in terms of the award at the address of petitioner mentioned in title of this award, so as to facilitate the petitioner to withdraw the same.
Suit No. 651/10 Page No.15/17
Vikas Dhingra Vs. Naresh Kumar Gupta 16
24. Copy of this Judgment be given to the parties for compliance.
25. Nazir attached to the Tribunal of undersigned is directed to issue notice to the petitioner immediately on deposit of the cheque of the awarded amount by the Respondent in this Tribunal so as to facilitate him to get the same released.
26. File be consigned to Record Room.
Announced in the Open Court on 10th Day of February, 2012 (SANJIV JAIN) Presiding Officer : MACT02 South District : Saket Courts New Delhi : 10.02.2012 Suit No. 651/10 Page No.16/17 Vikas Dhingra Vs. Naresh Kumar Gupta 17 Vikas Dhingra Vs. Naresh Kumar Gupta Suit No. 651/10 10.02.2012 Present: Ld. Counsel for the parties.
Vide separate order of even date a compensation of Rs. 57,500/ (50% of Rs. 1,15,000/) alongwith interest @ 9% per annum from the date of filing the petition till realization of the amount is passed in favour of petitioner.
Copy of the award be given to the parties.
File be consigned to Record Room.
(SANJIV JAIN) Presiding Officer : MACT02 South District : Saket Courts New Delhi : 10.02.2012 Suit No. 651/10 Page No.17/17