Delhi District Court
Mukesh Kumar Bhardwaj vs Bijender Singh on 7 February, 2012
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IN THE COURT OF SURINDER KUMAR SHARMA
JUDGE MACT EAST
KARKARDOOMA COURTS, DELHI
MACT Suit No. 1256/08
Mukesh Kumar Bhardwaj
S/o Sh. Ram Kishan Bhardwaj
R/o 1/7140, Gali Post Office Wali
Shivaji Park, Shahdara
Delhi. ... Petitioner
Vs.
Bijender Singh
S/o Sh. Sothal Singh
R/o Village Basaunt
Post Jahagirabad
Bulandshahar ( U.P.) ( Driver)
2. Umed Singh
S/o Sh. Sadhu Ram
R/o C8, Sri Ram Nagar
Ghaziabad ( U.P.) (Owner)
3. The National Insurance Co. Ltd.
Branch Office ( 361201)
65, Navyug Market,
Ghaziabad ( U.P.) (Insurer)
.... Respondents
MACT Suit No. 1256/08 Page 1 /15
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Date of Institution : 20.08.2005
Date of Arguments : 23.01.2012
Date of Award : 07.02.2012
Award
This is a petition U/ss 166/140 of Motor Vehicle Act 1988 (hereinafter called the Act) filed by the petitioner for grant of compensation.
Briefly stated the facts of the case as averred in the claim petition are that on 11.7.2005 at about 3.00 p.m. the petitioner was going from his factory towards Galaxy Cinema Hall in Ghaziabad, U.P. for taking lunch, then a Tata 407 bearing No. UP14F4101 came from Dabur side being driven by the Respondent No.1 at a very high speed, in rash and negligent manner and it hit the petitioner from the back side. As a result of this, he received grievous injuries. The petitioner was taken to Chandra Laxmi Hospital, Vaishali, Ghaziabad, where he was medically examined and admitted there. As per the petitioner the accident took place due to negligence on the part of Respondent No.1. The petitioner has prayed for an award of Rs.5,00,000/ along with the interest @ 18% p.a. MACT Suit No. 1256/08 Page 2 /15 3 The notice of the claim petition was issued to the Respondents.
The Respondent No. 1 and No. 2 contested the claim and filed written statement submitting therein that no accident as alleged was ever caused on the said date by the Respondent No.1 while driving Tata 407 bearing No. UP14F4101.
It was further submitted that on the day of accident, the offending vehicle Tata 407 bearing No. UP14F4101 was insured with the Respondent No.3 The National Insurance Company Ltd.
The Respondent No. 3 The National Insurance Company Ltd. contested the claim and filed Written Statement wherein Respondent No. 3 admitted that the offending vehicle Tata 407 bearing No. UP14F4101 was insured with it in the name of Umed Singh for the period from 19.01.2005 to 18.01.2006. However, the Respondent has denied the allegations regarding the accident.
On 02.12.2006, on the pleadings of the parties, following Issues were framed by my Ld. Predecessor :
1. Whether petitioner proves that he suffered injuries in the road accident dated 11.7.2005, near Galaxy MACT Suit No. 1256/08 Page 3 /15 4 Cinema Hall, Ghaziabad, U.P. due to rash and negligent driving of Respondent No.1 involving vehicle No. UP14F4101 ?
2. Whether the petitioner is entitled for any compensation, if so, to what amount & from whom?
3. Relief.
Vide order dated 27.8.2010 passed by my Ld. Predecessor, Respondent No.1 and No. 2 were proceeded ex parte.
In support of his case, the petitioner has examined six witnesses including himself as PW1. He filed his evidence by way of affidavit which is Ex. P1 wherein he reiterated the averments as made by him in his claim petition.
PW2 Ram Kishan Bhardwaj has also filed his evidence by way of affidavit which is Ex. P2. He is an eye witness of the accident. In his affidavit, he has supported the case of the petitioner regarding the accident. He stated that the accident took place due to the rash and negligent driving of vehicle bearing No. UP14F4101 which was being driven by Respondent No.1 Bijender Singh. He made complaint to the MACT Suit No. 1256/08 Page 4 /15 5 police regarding the accident and a case FIR No. 133/05 u/s 279/338 IPC was registered at Police Station Link Road, Ghaziabad, U.P. PW3 Dr. R.C. Sharma Medical Officer, Institute of Human Behaviour & Allied Sciences, Shahdara brought the summoned record pertaining to petitioner Mukesh Kumar Bhardwaj. The copy of the same is Ex. PW3/1.
PW4 Dr. Sandeep Govil, Senior Resident Psychiatric Department, IHBAS, Shahdara, Delhi has stated that he has examined patient Mukesh Kumar Bhardwaj in the year 2006, twice. He has knowledge about the injuries of the patient. Initially the patient met with an accident in the year 2005 and had received fracture of the right occipital bone with scalp haematoma with bifrontal hemorrhagic contusion with surrounding edema with small extra axial bleed in left frontal region continuing into anterior falx with subarachnoid hemorrhage. He further stated that disability due to this behavioural abnormalities are there and the same need to be quantified after detailed assessment and disability board's opinion.
MACT Suit No. 1256/08 Page 5 /15 6
PW5 P.K. Tyagi is the Proprietor of of Sarv Shri Raman Label Ind. Mukehsh Kumar Bhardwaj joined the services under him in April 2005 as DTP Operator and he worked under him till he met with an accident i.e. 11.7.2005. The petitioner was drawing Rs.13,500/ per month. Ex. PW1/2 was issued by him. He further stated that the petitioner is unable to work due to the injuries suffered by him in the accident. He produced the photo copies of the registration certificate of commercial tax pertaining to his organization which is Ex. PW5/A, Saral Form and his income along with audited report of his income is Ex. PW5/B. Another Saral Form pertaining to year 200506 is Ex. PW5/C. The examination of this witness was deferred and thereafter he never turned up for his statement. Therefore, his incomplete statement cannot be read in evidence.
PW6 Dr. Harish Mansukhani, Chief Medical Officer, LBS Hospital, New Delhi proved the disability certificate of the petitioner Mukesh, which is Ex. PW1/C. In support of its case, Respondent No.3 has examined on Sh. Gopal Nagraj Sr. Assistant as R3W1. He filed his evidence by way of affidavit which is Ex.R3W1/1. MACT Suit No. 1256/08 Page 6 /15 7
I have heard Sh. S.K.Pandey Advocate for the Petitioner & Sh. S.P.S. Chauhan Advocate for Respondents No.3/ Insurance Company. I have also perused the file.
My findings on the Issues are as under :
Issue No.1.
It was submitted by Ld. Counsel for the petitioner that the accident took place due to rash and negligent driving of the offending vehicle. It was further submitted that a FIR bearing No. 133/2005 regarding the accident was registered against the driver i.e. Respondent No. 1 at Police Station Link Road Ghaziabad, U.P. on the statement of PW2 Ram Kishan Bhardwaj. The certified copies of the said criminal case record are placed on record. It was further submitted by Ld. Counsel for the petitioner that PW1 is injured and PW2 is an eye witnesses of the accident and they have fully supported the case regarding the rash and negligent driving of the offending vehicle by Respondent No.1.
The perusal of the statements of the petitioner/injured PW1 Mukesh Kumar Bhardwaj and PW2 Ram Kishan Bhardwaj reveal that they have stated that the MACT Suit No. 1256/08 Page 7 /15 8 accident took place due to the rash and negligent driving of the offending vehicle TATA407 bearing No. UP. 14F4101. Nothing could come out in their cross examination which could shake their credibility on this point. The driver of the offending vehicle i.e. Respondent No. 1 has not led any evidence to show that he was not rash and negligent in driving and the accident has not taken place due to his negligence.
In a judgment reported as National Insurance Company Ltd. Vs. Pushpa Rana and others 2009 ACJ287 the Hon'ble High Court of Delhi has observed that certified copies of criminal court, such as FIR, recovery memo and mechanical inspection report of vehicle are sufficient proof to reach the conclusion that driver was negligent, proceedings under M.V. Act are not akin to proceedings in a civil suit and hence, strict rules of evidence are not required to be followed in this regard.
PW1 and PW2 have categorically stated in the court that accident took place due to the rash and negligent driving of Respondent No.1.
Therefore, from the statement of petitioner/injured MACT Suit No. 1256/08 Page 8 /15 9 PW1 Mukesh Kumar Bhardwaj and PW2 Ram Kishan Bhardwaj who is an eye witness of the accident and in view of the record of the criminal case registered at Police Station Link Road, Ghaziabad vide FIR No. 133/2005 regarding the accident, it is proved that the petitioner Mukesh Kumar Bhardwaj sustained injuries in the accident occurred on 11.07.2005 due to the rash and negligent driving of vehicle TATA 407 bearing No. UP14 F 4101 which was being driven by Respondent No.1 The issue is decided accordingly.
Issue No. 2 :
In issue No.1 above, it has been held that the petitioner Mukesh Kumar Bhardwaj has sustained injuries in the accident due to rash and negligent driving of vehicle TATA 407 bearing No. UP14F 4101, so, the petitioner is entitled for compensation.
It was submitted by Ld. Counsel for the petitioner that the injured has suffered serious head injury and he has suffered 31 % permanent disability in respect of four limbs. It was further submitted that the injured was immediately admitted in Chandra Laxmi Hospital, Vaishali, U.P. and he remained MACT Suit No. 1256/08 Page 9 /15 10 admitted there till 20.7.2005. It was further submitted that the petitioner is still under treatment and has not fully recovered from the head injuries. It was further submitted that the petitioner is sufferings from mental problems. It was further submitted that the petitioner has suffered permanent disability in the mode of loss of memory and loss of natural behaviour. It was further submitted that the petitioner has already spent Rs.1,50,000/on his treatment and he likely to spend Rs. 2,00,000/ approximately or more on his future treatment as he is under treatment.
The perusal of the statement of injured/petitioner PW1 Mukesh Kumar Bhardwaj shows that he has stated that he has spent Rs. 1,50,000/ on his medical treatment and he is still under treatment of the hospital. He filed his medial record of the hospitals including prescription reports and the medical bills. He filed medical bills for about Rs. 39000/ Therefore, in view of the above discussion, the expenditure incurred by the petitioner on his treatment is estimated as Rs.40,000/ In view of the nature of injuries including the head injury sustained by the petitioner for which the petitioner MACT Suit No. 1256/08 Page 10 /15 11 remained hospitalized in hospitals, the amount of compensation on account of pain and suffering is assessed as Rs. 10,000/.
The petitioner has not filed any documentary proof regarding the special diet. However, as the petitioner remained hospitalized in the hospital & he has also received permanent disability for 31 % in relation to all four limbs, so, the compensation on account of special diet is assessed as Rs. 10,000/ As the petitioner remained in the hospitalized for a long period and he received grievous injuries including permanent disability, so the compensation on account of conveyance is assessed as Rs.10,000/.
PW1 Mukesh Kumar Bhardwaj has stated in his affidavit that earlier to the accident, he was working with Raman Label Factory, Ghaziabad, U.P. as DTP computer operator and and was earning Rs. 13,000/ per month. He further stated that he used to do the work of computers with Shiv Balaji Laser Graphics, Moojpur and used to earn Rs.10,000/ per month. The petitioner has examined Sh. P.K. Tyagi Proprietor of Sarav Raman Label Ltd. to support his version. He proved the salary MACT Suit No. 1256/08 Page 11 /15 12 certificate as Ex. PW1/2. This witness was partly cross examined by Ld. Counsel for the R1 and R2 and his further cross examination was deferred. Thereafter this witness was not produced for further cross examination. Therefore, the statement of PW5 P.K. Tyagi cannot be read in evidence. Hence, the petitioner has failed to prove that he was earning Rs.13000/ per month or Rs. 10,000/ per month. As per the Minimum Wages Act, at the relevant time, the minimum wages for unskilled worker was Rs. 3044.90 per month, say Rs 3045/ per month. In my view loss of income of the petitioner of three months can be given to the petitioner. So, his loss of income comes out Rs.9135/. So, I calculate loss of income as Rs. 9135/ .
The petitioner has examined Dr. Harish Mansukhani, Chief Medical Officer, LBS Hospital. He proved the Disability Certificate of injured Mukesh which is Ex. PW1/C. He stated that the injured is suffering from 31 % permanent disability in relation to all four limbs. As the petitioner has suffered 31% disability, so he would not be able to earn as much as he would have earned if he was not disabled on account of the accident. The disability of loss of working capacity in the present case can MACT Suit No. 1256/08 Page 12 /15 13 be taken as 30% The petitioner was 29 years at the time of accident. Therefore, the multiplier of 18 has to be applied. Therefore, future loss of income of the petitioner will be Rs.914 x 12 x 18 = Rs.1,97,424/.
In view of the facts and circumstances of the present case, the compensation on account of loss of future prospects is estimated as Rs.25,000/ Therefore, in view of the above, I calculate the amount of compensation payable to the petitioner as under :
Expenditure on treatment : Rs.40,000/
Pain and Sufferings : Rs.10,000/
Special diet : Rs.10,000/
Conveyance : Rs.10, 000/
Loss of Income : Rs. 9135/
Future Loss of Income : Rs. 1,97,424/
Loss of future prospects : Rs. 25,000/
& amenities of life
Total : Rs. 3,01,559/
In this case admittedly, the offending vehicle was insured by Respondent no. 3 The National Insurance Company MACT Suit No. 1256/08 Page 13 /15 14 Ltd.
It was contended by Ld. Counsel for Respondent No. 3 Insurance Company that in this case there is a violation of the permit as owner of the offending vehicle was not having valid route permit at the time of accident. In this regard, the Respondent No.3 has examined Sh. Gopal Nagraj Sr. Assistant of the Respondent3. He filed his affidavit Ex. R3W1/1 in support of his evidence. But in his cross examination he has stated that he did not know the contents of his affidavit. Hence, the evidence of R3W1 has no value. Therefore, this plea of the Insurance Company cannot be accepted.
Therefore, the Respondent No. 3 The National Insurance Company Ltd. is liable to pay compensation to the petitioner.
Issue No.: 3 ( Relief ) In view of the findings on the Issues above, a compensation of Rs.3,01,559/ is granted to the petitioner Mukesh Kumar Bhardwaj along with interest at the rate of 7.5 % p.a. till the date of its realization and the same is to be paid by the Respondent No. 3 The National Insurance Company Ltd. MACT Suit No. 1256/08 Page 14 /15 15
Copy of this Award be supplied free of cost to the parties.
No order as to costs.
Announced in Open court 7th February 2012 ( Surinder Kumar Sharma ) Judge MACT,East District Karkardooma Courts, Delhi MACT Suit No. 1256/08 Page 15 /15