Delhi District Court
Santosh vs Rakesh Kumar on 10 May, 2018
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
Suit No. 303/16
Unique Case I.D No.: 0240 2C04 4396 2015
Santosh
S/o Sh. Pujan Saha
H. No. 200, Gali No. 4,
New Lahore, Shastri Nagar,
Gandhi Nagar, Delhi-110031
..... Petitioner
VERSUS
1. Rakesh Kumar
S/o Sh. Kanhaiya Lal
R/o H. No. G-82, Street No. 2/3,
Shastri Park, Delhi-110053
..... Driver
2. Raghubir Enterprises
Through its Proprietor
Sh. Raghubir Singh Jain
R/o H. No. 1397/21-A, Katra Nagin Chand, Chandni Chowk,
Delhi-110006
..... Registered owner
3. Bajaj Allianz General Insurance Co. Ltd.
Block-4, 7th Floor, DLF Tower,
15, Shivraj Marg, New Delhi-110015
..... Insurer
..... Respondents
Date of Institution : 22.07.2015
Date of reserving : 18.04.2018
Date of Judgment : 10.05.2018
JUDGEMENT
Suit No.: 303/2016 Santosh vs Rakesh Kumar & Ors. 1 of 16 PLEADINGS:
1. Mr. Santosh, (the petitioner), 27 years, born on 23.09.1988, suffered 'lisfranc fracture' and consequent, permanent physical impairment to the extent of 28% in relation to right lower limb in a motor vehicular accident that occurred at 06.30 p.m. on 23.06.2015 on Raja Ram Kohli Marg, near Petrol Pump, Geeta Colony, Delhi, while he was riding motorcycle bearing registration No. DL 7SW 5641 (the motorcycle) with his wife Smt. Saroj and her colleague Smt. Alka as pillion riders on his way to Shastri Nagar from Gandhi Nagar, when the car described as Honda City bearing registration No. DL 1CM 0405 (the car) allegedly driven by the respondent No. 1 in a rash and negligent manner had hit the motorcycle. The petitioner instituted an accident claim case in the wake of detailed accident report (DAR) submitted by HC Champat Singh, Investigating Officer, on the basis of the evidence collected during the investigation of the corresponding criminal case being FIR No. 373/15, initially, registered under section 279/337 of the Indian Penal Code, 1860 (IPC) at PS Geeta Colony impleading, inter alia, the driver, registered owner and insurer of the car as the respondents.
2. The respondent No. 1 / driver and the respondent No. 2 / owner of the car, in their joint written statement, denied the involvement of the car in the accident. They attributed negligence to the petitioner as he was riding with two pillion riders. They contended that the petitioner could not maintain the balance of the motorcycle and met with an accident.
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3. The respondent No. 3 / insurer offered an amount of Rs. 56,038/- comprising Rs. 25,000/- towards 'pain and suffering', Rs. 10,000/- towards 'special diet and conveyance', Rs. 17,264/- towards 'loss of income for 2 months' calculated on the basis of prevalent minimum wages for unskilled workers and Rs. 10,000/- towards 'attendant charges' after deducting Rs. 6,226/- on account of 'contributory negligence' to the extent of 10% on the part of the petitioner on the ground that three persons were riding the motorcycle in violation of section 128 of the MV Act.
ISSUES:
4. On the pleadings, following issues were framed:
(i) Whether the petitioner has suffered injuries in road side accident on 23.06.2015 involving vehicle i.e. Car bearing registration No. DL-1CM-0405 being driven allegedly in a rash and negligent manner by respondent No. 1?
(OPP)
(ii) Whether the petitioner is entitled for any compensation, if so, to what amount and from whom? (OPP)
(iii) Relief.
PETITIONER'S EVIDENCE:
5. PW-1 P.M. Nair, Accounts Manager, M/s Prime Automation (Himgiri Yamaha), C-42, Main Road, Opp. Swaran Cinema, Krishna Nagar, Delhi-110051 stated that the petitioner joined the firm as a motor mechanic in the month of July, 2014. He stated that the last drawn salary of the petitioner was Rs. 9,500/- p.m. besides incentives approx. Rs. 4,000/- to 5,000/- p.m. He stated that the salary was paid to the petitioner in cash. He produced salary certificate Ex.PW1/1 and salary vouchers for the month of March, 2015 to June, 2015 Ex.PW1/2 (colly.) and calculation of incentives for the said months Mark 'X'.
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6. PW-2 Dr. Amit Sharma, Senior Resident (Orthopedics), Lok Nayak Hospital, Delhi provided treatment to the petitioner. He deposed about the nature of the injuries, loss of gait and need of future treatment. He proved discharge summary Ex.PW2/1.
7. The petitioner appeared as PW-3. He filed evidence by way of affidavit Ex.PW3/A. He described the manner of the accident. He relied on treatment record Ex.PW3/1, medical bills Ex.PW3/2, copy of FIR Ex.PW3/3, driving license Ex.PW3/4 and aadhaar card Ex.PW3/5. He stated that he was driving the motorcycle with two pillion riders.
8. PW-4 Dr. Vedpal Yadav, Assistant Professor (Orthopedics), Lok Nayak Jai Prakash Hospital, Delhi proved disability certificate Ex.PW4/A, calculation chart Ex.PW4/B and registration card containing photograph of the petitioner Ex.PW4/C. FINAL ARGUMENTS:
9. I have heard arguments of Sh. H.S. Singh, Advocate for the petitioner and Sh. Jayant Rawat, Advocate for the respondent No. 3 / insurer and perused the written arguments and examined the evidence on the file of the tribunal.
ISSUE NO. 110. Proof of negligence is necessary before the owner or the insurance company, as the case may be, is held liable for payment of compensation. In a claim under tort liability, the standard of proof of culpability is not proof beyond reasonable doubts. The evidence is tested on touchstone of preponderance of probabilities.
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11. The petitioner, in order to discharge burden of proof, appeared as PW-3. He deposed, on the strength of affidavit Ex.PW3/A, the sequence of events leading to the accident. He deposed that on 23.06.2015 at about 06.30 p.m., he alongwith his wife Smt. Saroj and her colleague Smt. Alka was moving on motorcycle bearing registration No. DL 7SW 5641 from Gandhi Nagar to Shastri Nagar. He categorically deposed that when he reached at Geeta Colony flyover, the car bearing registration No. DL 1CM 0405 driven by the respondent No. 1 came from wrong side and had hit the motorcycle. It may be noted that there is no challenge to his deposition. The respondent No. 1, though denied involvement of the car in the accident, did not cross-examine him. The respondent No. 3 / insurer did not cross-examine him, on the aspect of rash and negligent driving of the offending vehicle. The evidence of the petitioner remained unchallenged and unrebutted. The respondent No. 1 neither stated nor deposed as to why he could not avoid the collision. In the facts and circumstances of the case, the respondent No. 1 was primarily responsible for the accident.
12. However, it cannot be brushed aside lightly that the petitioner was riding the motorcycle with two pillion riders in violation of section 128 of the MV Act. It may be noted that the petitioner is the author of the case FIR. He relied upon the case FIR Ex.PW3/3. The case FIR was lodged promptly at 10.45 p.m. on 23.06.2015 within 3 hours from the time of the accident. The sequence of events, as narrated in the case FIR, cannot be discarded.
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13. According to the case FIR Ex.PW3/3, when the petitioner reached under the flyover leading to Raja Ram Kohli Marg, the respondent No. 1 came in high speed from the side of Laxmi Nagar Pusta and turned his car towards Raja Ram Kohli Marg and had hit right side of the motorcycle. Site Plan of the place of the accident would reveal that the place of the accident was the middle of the road. At that time, the petitioner was going straight and the respondent No. 1 was taking right turn. Therefore, it cannot be said that the petitioner had no time to take notice of the incoming car. The petitioner should have controlled the speed of the motorcycle approaching a crossing. Obviously, the petitioners was riding with two pillion riders and he could not respond instantly as there is very little space for the driver of the motorcycle having two pillion riders to maneuver his actions. Therefore, there was element of contributory negligence on the part of the petitioner to the extent of 10% in causing the accident.
14. According to MLC, the petitioner was admitted in Lok Nayak Hospital, Delhi at 7.46 p.m. on 23.06.2015. He was examined to have suffered 'injury over the right foot, tenderness with expose tendons'. He was eventually found to have suffered 'grievous' injury and consequent, permanent disability to the extent of 28% in relation to right lower limb.
15. It is proved that the respondent No. 1 was primarily responsible in causing the accident leading to the grievous injury to the petitioner. However, the petitioner was also negligent to the extent of 10%. Issue No. 1 is, accordingly, answered.
Suit No.: 303/2016 Santosh vs Rakesh Kumar & Ors. 6 of 16 ISSUE NO. 2:
16. The petitioner suffered grievous injury and consequent, permanent disability in the accident arising out of rash and negligent driving of the car by the respondent No. 1. He is entitled to just and reasonable compensation. PAIN AND SUFFERING:
17. As noted in MLC, the petitioner was examined to have suffered 'injury over the right foot, tenderness with expose tendons'. PW-2 Dr. Amit Sharma, Senior Resident (Orthopaedics), Lok Nayak Hospital, Delhi provided medical treatment to the petitioner. He proved discharge summary Ex.PW2/1. According to discharge summary Ex.PW2/1, the petitioner suffered crush injury over dorsum left foot with tendons exposed. He also suffered fracture dislocation of first, second and third metatarsal joint right foot. He was diagnosed to have suffered 'lisfranc fracture right foot'. The petitioner received treatment from Lok Nayak Hospital, Delhi from 23.06.2015 to 02.07.2015. He underwent wound debridement and k-wire fixation.
18. In view of the prolonged treatment, nature of the injuries and consequent, physical disablement, the petitioner is awarded an amount of Rs. 1,00,000/- under the head of 'pain and suffering'.
MEDICAL EXPENSES:
19. The petitioner proved medical expenses in the sum of Rs. 33,270/- vide medical bills Ex.PW3/2. Accordingly, the petitioner is awarded an amount of Rs. 35,000/- under the head of 'medical expenses'.
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20. The case of the petitioner is that he was employed as a motor mechanic with M/s Prime Automation (Yamaha) and drawing salary in the sum of Rs. 15,000/- per month. The petitioner, in his affidavit Ex.PW3/A, has not stated the period during which he could not work or engage in any gainful activity. In view of the nature of injury, period of admission and impact of injury, the petitioner deserves to be granted loss of income for 6 months.
21. The petitioner examined PW-1 P.M. Nair, Accounts Manager, M/s Prime Automation (Himgiri Yamaha), to prove his employment and salary. He stated that the petitioner joined the firm as a motor mechanic in the month of July, 2014. He stated that the last drawn salary of the petitioner was Rs. 9,500/- p.m. besides incentives approx. Rs. 4,000/- to 5,000/- p.m. He stated that the salary was paid to the petitioner in cash. He produced salary certificate Ex.PW1/1 and salary vouchers for the month of March, 2015 to June, 2015 Ex.PW1/2 (colly.) and calculation of incentives for the said months Mark 'X'.
22. PW-1 P.M. Nair, in his cross-examination, stated that he has not placed his authorization to depose before the Tribunal. He stated that he has not placed attendance register, leave record, medical record and appointment letter. He stated that the firm does not maintain any separate file of its employees. He stated that he has not placed statement of account of the firm reflecting the payments, as stated in salary vouchers Ex.PW1/2. He stated that salary vouchers Ex.PW1/2 do not bear signature of authorized person of the firm.
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23. PW-1 P.M. Nair, in his cross-examination, stated that salary vouchers Ex.PW1/2 do not contain stamp or seal of the firm. He stated that he has not brought the cash register regarding the entries pertaining to salary vouchers Ex.PW1/2. He stated that Mark 'X' (colly) do not bear signature of authorized representative of the firm or the stamp or seal of the firm. He stated that he has not placed his I-card showing that he is working with the firm.
24. On holistic examination of the evidence of PW-1 P.M. Nair, it is evident that besides the salary certificate Ex.PW1/1, salary vouchers for the month of March, 2015 to June, 2015 and hand written document Mark 'X', there is no corresponding record to substantiate the employment and salary of the petitioner. There is no evidence that there is a firm in the name of M/s Prime Automation Himgiri (Yamaha) at C-42, Main Road, Swaran Cinema, Krishna Nagar, Delhi-110051. There is no evidence that PW-1 P.M. Nair was employed as an Accounts Manager with the said firm. There is no evidence that PW-1 P.M. Nair was authorized by the said firm to appear and depose before the Tribunal. There is no evidence in the form of account books, attendance register, cash register and ESI contribution to prove the employment and salary of the petitioner. The evidence of PW-1 P.M. Nair is not sufficient to arrive at the conclusion that the petitioner was employed with M/s Prime Automation on monthly salary of Rs. 9,500/- per month. Hand written notes regarding payment incentives to the extent of Rs. 4,000 to 5,000/- per month Mark 'X' cannot be considered in arriving gross income of the petitioner.
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25. In Maniram & Anr. versus Ritu Pal & Ors, MAC APP. 298/2013 decided on 07.04.2016, the claimants contended that the deceased was employed as a clerk with Chetak Roadways at salary of Rs. 7,500/- per month. In order to prove said employment and earning, PW-3 Shish Ram, Branch Manager of Chetak Roadways was examined. The witness had not brought any record of the company corroborating the claim of employment, including cash book, ledger book, salary register or attendance register which could show that the deceased was a regular employee and receiving wages. The Tribunal did not accept the testimony of PW-3 Shish Ram and decided to follow minimum wages. In the appeal, Hon'ble High Court of Delhi observed that there was no error in the approach of the Tribunal.
26. In Jagmal Singh Yadav versus The Oriental Insurance Co. Ltd. & Ors., MAC APP. 214/2010 decided on 21.01.2016, the witness did not produce the record of the salary paid to the employees or receipts of the salary, thus, paid or the attendance register maintained by the firm. Hon'ble High Court held that evidence of the witness could not have been relied upon to write the finding that the deceased was earning an amount of Rs. 10,200/- per month from private employment.
27. In Oriental Insurance Co. Ltd. versus Sangeeta Devi & Ors, MAC APP 165/2011 decided on 22.02.2016, the claimants examined witness to prove the employment of the deceased. Hon'ble High Court held that in the absence of record of such employment including salary register, attendance register etc. mere oral words cannot be believed.
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28. The Tribunal, is of the considered opinion, that the evidence of PW-1 P.M. Nair on the aspect of employment and salary of the petitioner cannot be acted upon in the absence of corroboration from salary register, cash register, account books and attendance register.
29. The petitioner has stated that he is a motor mechanic. He has not proved any diploma or certificate regarding training or course in the vocation of motor mechanic. The monthly income of the petitioner is notionally assessed as Rs. 10,010/-, it being the prevalent minimum wages of semi-skilled workers.
30. Accordingly, the petitioner is awarded an amount of Rs. (10,010 x 6) = 60,060/- (rounded of) Rs. 61,000/- under the head of 'loss of income for 6 months'.
LOSS OF FUTURE INCOME:
31. The petitioner was examined by a medical board constituted at Lok Nayak Hospital for assessment of nature and extent of permanent physical disability. The medical board assessed permanent physical disability of the petitioner to the extent of 28% in relation to right lower limb. PW-4 Dr. Ved Pal Yadav, Assistant Professor (Orthopaedics), Lok Nayak Hospital, Delhi proved disability certificate Ex.PW4/A and calculation chart Ex.PW4/B. He stated that the petitioner has suffered stiffness in range of motions which would prevent him from carrying out daily routine activities. He stated that the petitioner being a mechanic would not able to squat while repairing any motor vehicle. According to calculation chart Ex.PW4/B, the petitioner has suffered loss of range of movement and muscular strength at right ankle and foot.
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32. In the case of 'Vinod Kumar versus Mehtab & Anr., MAC APP. 1011/2006 decided on 25.02.2016, the claimant was a motor mechanic. He suffered disability to the extent of 22 ½ % in relation to left lower limb. The Tribunal assessed the functional disability to the extent of 12%. Hon'ble High Court held that functional disability of the claimant should have been assessed to the extent of 18%.
33. Applying the said analogy to the said case, the functional disability of the petitioner is assessed to be 23%.
34. The petitioner was 27 years old. His date of birth is mentioned as 23.09.1988 in his driving license Ex.PW3/4 and aadhaar card Ex.PW3/5. Therefore, multiplier of 17 as applicable to the age group between 26 to 30 years would be attracted.
35. The petitioner is a self-employed person. He was below 40 years on the date of accident. Following the dispensation in the judgment of a Constitution Bench of the Supreme Court rendered on 31.10.2017 in SLP (C) 25590/2014, National Insurance Company Ltd. Vs. Pranay Sethi and Ors., there shall be addition of income to the extent of 40%.
36. Thus, the loss of future income due to disability is computed as [Rs. 10,010 x 140 / 100 x 23 / 100 x 12 x 17] Rs. 6,57,536.88 (rounded off) Rs. 6,58,000/-. LOSS OF GAIT / DISFIGUREMENT:
37. The petitioner has suffered loss of gait / disfigurement to his right foot. He is awarded an amount of Rs. 1,00,000/- as compensation for loss of gain / disfigurement.
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38. The disability suffered by the petitioner in relation to right lower limb would affect his capacity and efficiency to perform daily routine activities like squatting, cross leg sitting and running. The disability sustained by the petitioner would have effect on his quality of life and enjoyment of ordinary comforts of life. Therefore, the petitioner is awarded an amount of Rs. 1,00,000/- under the head of 'loss of amenities'. SPECIAL DIET AND CONVEYANCE:
39. The petitioner has not led any evidence to prove that he was prescribed any special diet. He has not led any evidence that he purchased protein rich diet. He has not led any evidence that he engaged any conveyance and incurred expenses thereon. However, in view of the prolonged treatment as an indoor patient and nature of treatment, he is awarded Rs. 10,000/- each towards special diet and conveyance. ATTENDANT CHARGES:
40. The petitioner has neither claimed nor proved that he engaged any attendant or incurred any expense thereon. The respondent No. 3 / insurer has offered an amount of Rs. 10,000/- towards attendant charges. Accordingly, the petitioner is awarded an amount of Rs. 10,000/- under the head of 'attendant charges'.
FUTURE MEDICAL EXPENSES:
41. PW-2 Dr. Amit Sharma stated that the petitioner may require further treatment / surgery. In that view, the petitioner is awarded an amount of Rs. 25,000/- under the head of 'future medical expenses'.
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42. The compensation awarded to the petitioner is computed, as under:
Sl. No. Head of compensation Amount
1. Pain and suffering Rs. 1,00,000/-
2. Medical expenses Rs. 35,000/-
3. Loss of Income for 6 months Rs. 61,000/-
4. Loss of future income Rs. 6,58,000/-
5. Loss of gait / disfigurement Rs. 1,00,000/-
6. Loss of amenities Rs. 1,00,000/-
7. Special diet and conveyance Rs. 20,000/-
8. Attendant charges Rs. 10,000/-
9. Future medical expenses Rs. 25,000/-
Total Rs. 11,09,000/-
LIABILITY:
43. The respondent No. 3 / insurer neither pleaded nor proved breach of any term and condition of insurance policy. The respondent No. 3 / insurer is liable to indemnify the liability of the respondent No. 2 / insured.
AWARD
44. The petitioner is awarded compensation in the sum of Rs. 9,98,100/- (after deducting 10% of the award amount on account of contributory negligence) alongwith interest @ 9% per annum from the date of filing of the petition (22.07.2015) till the date of award. The respondent No. 3 / insurer shall deposit the award amount with the tribunal within 30 days and otherwise, the award amount will carry interest @ 9% per annum from the date of filing of the petition till realization. [See: judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.] Suit No.: 303/2016 Santosh vs Rakesh Kumar & Ors. 14 of 16 45 An amount of Rs. 98,100/- will be released to the petitioner and balance amount of Rs. 9,00,000/- alongwith accrued interest will be secured in the form of fixed deposit receipts, as under:
Amount of FDR Period of FDR
Rs. 1,50,000/- 6 months
Rs. 1,50,000/- 12 months
Rs. 1,50,000/- 18 months
Rs. 1,50,000/- 24 months
Rs. 1,50,000/- 30 months
Rs. 1,50,000/- 36 months
Interest component 48 months
Copy of award be supplied to the petitioner and the respondent No. 3 / insurer for compliance. File be consigned to record room.
Digitally signed by SANJAY SANJAY SHARMA
Location: East District,
Karkardooma Courts, Delhi
SHARMA Date: 2018.05.10 17:19:12
+0530
Announced in the open Court Sh. Sanjay Sharma
Dated: 10th May, 2018 Presiding Officer MACT (East)
Karkardooma Court, Delhi
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Suit No. 303/16
10.05.2018
Present : Sh. H.S. Singh, Advocate with the petitioner.
Sh. Jayant Rawat, Advocate for R3 / Insurance Co.
Vide separate judgment, award is passed. To come up for compliance on 09.08.2018. The petitioner / Santosh has his savings bank A/c No. 33015180673 (IFSC:
SBIN0013763) in State Bank of India, Geeta Colony, Delhi. It is stated by the petitioner that the concerned bank has freezed his bank account pursuant to order of the Tribunal and not permitting him to withdraw cash amount. In that view, Branch Manager, State Bank of India, Geeta Colony, Delhi is directed to permit the petitioner to withdraw the amount from his bank account after filling cash withdrawal slips. Dasti.
Sanjay Sharma PO MACT (East)/KKD Delhi/10.05.2018 Suit No.: 303/2016 Santosh vs Rakesh Kumar & Ors. 16 of 16