Delhi District Court
Ajay Kr vs Roop Narayn Mishra on 21 January, 2025
Ajay Kumar vs Roop Narain Mishra and Ors. Page 1 of71
IN THE COURT OF MS. SHAMA GUPTA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
New No. 449833/16
Old No. 246/2012
UNIQUE ID No.: DLNW01-006566-2016
Ajay Kumar
S/o Sh. Prem Chand
R/o H.No. 527/19, Anaj Mandi,
Bahadurgarh, Haryana ........Petitioner/claimant
Versus
1. Roop Narain Mishra
S/o Sh. Chandra Bhushan Mishra
R/o Village Gaura, PS Haidergarh,
District Barabanki, UP
....... Driver/R1
2. Gemini Equipment & Rentals Pvt. Ltd.
Gemini House, Bus Depot Lane, Deonar,
Mumbai-400088, Maharashtra
Through Authorised Representative
Sh. Ram Dhan Mishra S/o Brahm Nath Mishra,
R/o H.No. 170, Gali No. 5, Jeevan Park,
Samaipur, Delhi
....... Owner/R2
3. ICICI Lombard General Insurance Company Ltd.
315, 3rd Floor, Aggarwal City Mall,
Near M2K, Rani Bagh,
Pitampura, Delhi-110034
........Insurance Company/R3
..... Respondents
DATE OF INSTITUTION : 06.09.2011
DATE OF RESERVING JUDGMENT : 19.12.2024
DATE OF PRONOUNCEMENT : 21.01.2025
Page 1 of71
Ajay Kumar vs Roop Narain Mishra and Ors. Page 2 of71
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED
CLAIMS TRIBUNAL AGREED PROCEDURE TO BE
MENTIONED IN THE AWARD AS PER FORMAT
REFERRED IN THE ORDER PASSED BY THE HON'BLE
DELHI HIGH COURT IN FAO 842/2003 RAJESH TYAGI Vs.
JAIBIR SINGH & ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident 06.07.2011
2. Date of intimation of the accident by the 06.09.2011
investigating officer to the Claims
Tribunal
3. Date of intimation of the accident by the 06.09.2011
investigating officer to the insurance
company.
4. Date of filing of Report under section Not available on
173 Cr.P.C. before the Metropolitan record
Magistrate
5. Date of filing of Detailed Accident 06.09.2011
Information Report (DAR) by the
investigating Officer before Claims
Tribunal
6. Date of Service of DAR on the 06.09.2011
Insurance Company
7. Date of service of DAR on the claimant 06.09.2011
(s).
8. Whether DAR was complete in all Yes
respects?
9. If not, whether deficiencies in the DAR No
removed later on?
10. Whether the police has verified the Yes
documents filed with DAR?
11. Whether there was any delay or No
deficiency on the part of the
Investigating Officer? If so, whether
Page 2 of71
Ajay Kumar vs Roop Narain Mishra and Ors. Page 3 of71
any action/direction warranted?
12. Date of appointment of the Designated 30.08.2016
Officer by the insurance Company.
13. Name, address and contact number of Sh. Sudhir
the Designated Officer of the Insurance Kumar Tyagi, Ld.
Company. Counsel for
insurance
company
14. Whether the designated Officer of the Yes
Insurance Company submitted his
report within 30 days of the DAR?
(Clause 22)
15. Whether the insurance company No
admitted the liability? If so, whether the
Designated Officer of the insurance
company fairly computed the
compensation in accordance with law.
16. Whether there was any delay or N/A
deficiency on the part of the Designated
Officer of the Insurance Company? If
so, whether any action/direction
warranted?
17. Date of response of the claimant (s) to Legal offer not
the offer of the Insurance Company . filed
18. Date of the Award 21.01.2025
19. Whether the award was passed with the No
consent of the parties?
20. Whether the claimant(s) were directed Yes
to open saving bank account(s) near
their place of residence?
21. Date of order by which claimant(s) were 24.05.2018
directed to open saving bank account (s)
near his place of residence and produce
PAN Card and Aadhar Card and the
direction to the bank not issue any
cheque book/debit card to the
claimant(s) and make an endorsement to
this effect on the passbook(s).
Page 3 of71
Ajay Kumar vs Roop Narain Mishra and Ors. Page 4 of71
22. Date on which the claimant (s) 15.11.2018
produced the passbook of their saving
bank account near the place of their
residence along with the endorsement,
PAN Card and Aadhar Card?
23. Permanent Residential Address of the As mentioned
Claimant(s) above
24. Details of saving bank account(s) of the Petitioner Ajay
claimant(s) and the address of the bank Kumar Goel,
with IFSC Code savings bank a/c
No.92572200055
077, Syndicate
Bank, Railway
Road,
Bahadurgarh,
Haryana
IFSC :
SYNB0009257
25. Whether the claimant(s) saving bank Yes
account(s) is near his place of
residence?
26. Whether the claimant(s) were examined Yes
at the time of passing of the award to
ascertain his/their financial condition.
27. Account number/CIF No, MICR 41065170303,
number, IFSC Code, name and branch 110002427,
of the bank of the Claims Tribunal in SBIN0010323,
which the award amount is to be SBI, Rohini
deposited/transferred. (in terms of order Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High
Court in FAO 842/2003 Rajesh Tyagi vs
Jaibir Singh.
JUDGMENT
1. The Detailed Accident Report (hereinafter referred to as DAR) was filed in this case on 06.09.2011, with reference to FIR No. 113/11, U/s 279/337 IPC, PS Bhalswa Dairy, Page 4 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 5 of71 Delhi, in respect of simple hurt, sustained by the petitioner Ajay Kumar Goel, in a road accident, on 06.07.2011, at about 1.45 pm, near Mukarba Chowk Flyover, in front of Khatta Sonipat to Delhi Road, New Delhi. Subsequently, chargesheet was filed by the IO, for the alleged commission of offence U/s 279/338 IPC, against Roop Narain Mishra (hereinafter referred to as 'Respondent no.1/R1/driver).
2. Brief facts of the case, as discernible from the DAR, including the documents annexed with DAR, are that on 06.07.2011, when the petitioner Ajay Kumar Goel (hereinafter referred to as the claimant/petitioner/injured), was going to Azadpur, on his motorcycle, bearing registration no. HR-12G-1264 (hereinafter referred to as the victim's vehicle), he was hit by one truck mounted crane, bearing registration No. HR-55M-3819 (hereinafter referred to as 'offending vehicle'), which was driven in a rash and negligent manner, by its driver Roop Narain Mishra/R1, at Mukarba Chowk Flyover, in front of Khatta Sonipat to Delhi Road, Delhi. It was further alleged that the accident has taken place, as the offending vehicle, while overtaking the victim's motorcycle, had hit the victim's vehicle. It was further alleged that as a result of the accident, the petitioner fell down on the road and sustained multiple injuries. It was further alleged that the petitioner was taken to Babu Jagjivan Ram Memorial Hospital, Jahangir Puri, Delhi (in short BJRM Hospital), where he received treatment, vide MLC bearing No. 28148/2011, as per which, the injuries Page 5 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 6 of71 sustained by the petitioner was opined to be dangerous in nature. After the accident, initially FIR No.113/11, PS Bhalswa Dairy, was registered against R1, for the commission of offence U/s 279/337 IPC however, as per MLC, since the injuries sustained by the petitioner was opined to be dangerous in nature, therefore, chargesheet was filed against the driver/R1, for the commission of offence U/s 279/338 IPC.
3. As per DAR, at the time of accident, R1 was the driver of the offending vehicle, Gemini Equipment & Rentals Pvt. Ltd. (herein after referred as R2/owner of the offending vehicle), was its registered owner and the same was insured with ICICI Lombard General Insurance Company Ltd. (hereinafter referred as R3/insurance company), vide policy no. 5005/0005721/03, valid for the period 09.03.2011 to 08.03.2012.
4. R1 and R2, though appeared at the time of filing of DAR however, R1 and R2 have chosen not to file any written statement, to the DAR/claim petition and consequently, R1 and R2 were proceeded Ex-parte, vide order dated 19.01.2018.
5. ICICI Lombard General Insurance Company Ltd./R3 has filed its reply/written statement, wherein it has taken the defence that the present petition is bad for misjoinder and non-joinder of necessary parties, alleging that the insurance Page 6 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 7 of71 company of vehicle bearing registration no. HR-12G-1264, has not been impleaded as respondent in the present case. It was further stated that policy no. 5005/0005721/03, which was issued by R3, in the name of M/s Gemini Equipment & Rentals Pvt. Ltd., is for vehicle bearing registration no. HR-55M-3819, however, the liability is subject to the terms and conditions of the policy. It was further stated that as per clause no. (v) & (vi) of Special Conditions of the said policy, R3 is not liable to pay any compensation, as any type of transit risks (loss during transit is not covered) and road traffic acts cover (or equivalent), for Motor Vehicle, is excluded under the policy. It was further stated that at the time of accident, the petitioner was plying vehicle bearing No. HR-12G-1264, rashly, negligently, at a very high speed and in a zig-zag manner, in contravention of the traffic rules. It was further stated that the present accident, if any, took place, only due to the negligence on the part of the petitioner. R3 denied that the petitioner was 42 years old, at the time of accident, was running a shop or was earning Rs. 15,000/-per month.
6. From the pleadings of the parties, following issues were framed by the Learned Predecessor, vide order dated 24.10.2013:-
1. Whether on 06.07.2011 at about 1.45 pm, near Mukarba Chowk Flyover in front of Khatta Sonipat to Delhi Road, crane bearing no. HR-55M-3819 which was being driven rashly and negligently by Roop Narayan Page 7 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 8 of71 hit the motorcycle no. HR-12G-1264 of petition and caused injuries to him? OPP
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP.
3. Relief.
7. After framing of issues, opportunities were given to all the parties, to prove their respective averments, by leading evidence in support of the same. In support of his case, the petitioner examined 10 witnesses.
8. The petitioner got himself examined as PW1, by way of evidence affidavit Ex.PW1/A. His deposition qua the accident in question and injuries sustained in the case accident, is reiteration of the facts mentioned in the DAR/claim petition. PW1 further deposed that after the accident, initially he was taken to BJRM Hospital but, on the day of incident itself, he was shifted to Maharaja Agrasen Hospital, Punjabi Bagh, (West), New Delhi, where he remains admitted from 06.07.2011 to 02.08.2011. He further deposed that he has incurred huge expenses on his treatment, which includes charges towards hospitalization, nursing, medicines, special diet, transportation, physiotherapy, specialized mobility equipments, like wheel chair etc.. He deposed that several bills, cash memos could not be preserved, as the whole family members were engaged in taking care of the petitioner. He further deposed Page 8 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 9 of71 that he has received serious injuries in spinal region and was rendered irrecoverably handicapped, due to the accident. He further deposed that he has been diagnosed as a case of "traumatic paraplegia, with neurogenic bowel and bladder, having 52% disability of both lower limbs, with no possibility of recovery. He further deposed that till date, he is under treatment and will continue to get treatment in future, for indefinite period, since the nature of injuries sustained by him is serious in nature. He further deposed that because of the accident in question, sometimes, he is also having memory loss. He further deposed that he has suffered total damage to his life and has been rendered into stage of vegetation and therefore, he is entitled to compensation, that should not only meet his expenses of treatment and medicines but, also compensate his inability, to live ordinary life. He further deposed that till date, he is under treatment, for the illness/disability, developed due to the said accident, including physiotherapy, for which, minimum monthly expenses is Rs. 22,000/- (Rs. 500/- per day on account of physiotherapy, Rs. 500/- per visit of doctor fee, Rs. 6,000/- on account of medicine expenses) and the said treatment shall also continue for a very long period. He further deposed that as per present medical opinion, the said treatment may go on, till his entire life. He further deposed that apart from this, the doctor also advised him to buy machines, for exercise, so that he can do continuous exercise, and he has purchased the said machine on 10.08.2012, for the value of Rs. 3,500/-. He further Page 9 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 10 of71 deposed that at the time of filing of DAR, IO has filed certain medical bills, which are on record. He further deposed that due to the accident, his motorcycle was also badly damaged and he was required to send the motorcycle for repair, to the workshop and the cost of repair was Rs.
20,000/-. He further deposed that at the time of his discharge on 02.08.2011, his condition was very critical.
9. PW1 further deposed that he is educated upto matric. He further deposed that after completing his education, he was doing his business of commission agent of cotton, at Shop No. 28, Anaj Mandi, Bahadurgarh and from the said business, he was earning a sum of Rs. 50,000/- per month, at the time of accident and due to the said accident, his business has been completely ruined. He further deposed that his family consisted of himself, his wife, three sons and mother and they all are dependent upon him, for all purposes, as they are having no source of income. He further deposed that due to the accident, his business has been ruined and his life and the condition of his family members had become worse and miserable and for meeting the expenses of his family members, he had taken loan from here and there, on interest. He further deposed that not only this, study of his children has been badly affected, as his son Krishan Kanhiya failed in class 11th examination, conducted in the year 2011-12. He further deposed that due to overburden and financial crisis, his son was compelled to transfer himself from Science stream to Arts stream and Page 10 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 11 of71 thus, dream of his son of becoming a doctor has shattered. He further deposed that he is helpless for his entire life and he is not in a position to provide better education, good health, good food, good clothing, comforts of life etc., to his family members and therefore, he is entitled for compensation, at-least to the tune of Rs. 6,00,00,000/-.
10. PW1 further led additional evidence by way of affidavit Ex.PW1/B, wherein he deposed that he and his wife were looking at the educational certificate/papers of their son, on 10.01.2019 and fortunately, they found one file, containing his several medical/medicine bills and treatment prescriptions, pertaining to the injury, caused in the accident. He further deposed that due to the accident, many diseases have arisen in his body, for which, he is under treatment, since the day of accident and his treatment, shall continue in future for indefinite period, since the nature of injuries is serious in nature. He further deposed that his doctor Dr. Jaideep Bansal, has also issued certificate in this regard, dated 14.01.2019. He further deposed that monthly expenses over his treatment, special diet and look after, is not less than Rs. 25,000/- per month. He further deposed that he has undergone ultrasound on 02.11.2018 and he annexed the original ultrasound report dated 02.11.2018 and original bill dated 02.11.2018. He further deposed that his treatment is going on at Maharaja Agrasen Hospital, Punjabi Bagh, Delhi, where after taking consultation charges, the concerned doctors have issued some treatment Page 11 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 12 of71 record/prescription, in his presence and also, according to the advise of the doctors in prescriptions, he has purchased medicines from various medical stores and also conducted various medical tests. He further deposed that due to his disability, his business has been ruined, he has suffered heavy loss and now, his position has become worse due to which, he has taken loan from here and there. He deposed that till date, he has taken friendly loan from his relative Shyam Lal on 17.06.2017 and Sh. Vikas Kumar on 21.03.2017, to the tune of Rs. 5,00,000/-, which he has to return but, due to the accident and injury sustained in the accident, he is not able to repay the same. He deposed that under compelling circumstances, he had to sell a portion of his property bearing no. 527/19 (Old No. 28), Anaj Mandi, Bahadurgarh, for survival. He further deposed that though he has placed on record documents of his physiotherapy, issued by Mr. Neeraj Kumar Malik, which were duly verified by the IO, however, in collusion with the respondents, PW4/ Mr. Neeraj Kumar Malik had given contradictory statement and he did so, with the malafide intention, to give benefit to the respondents.
11. In his evidence, PW1 has placed reliance upon Copy of his Election ID card as Ex.PW1/1, Copy of his MLC No. 28148/2011 as Mark-A, Copy of FIR No. 113/2011, PS Bhalswa Dairy as Mark-B, Copy of discharge card/slip dated 02.08.2011 and 24.09.2011 as Ex.PW1/2 & Ex.PW1/3, Copy of medical prescription as Ex.PW1/4 Page 12 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 13 of71 (Colly) (26 pages), Copy of medical bills as Ex.PW1/5 (Colly), Copy of medicine bills/medical bills as Ex.PW1/6 (Colly) (total 43 bills), Transportation bills as Ex.PW1/7 (Colly) (total 22 bills), Copy of disability certificate bearing no. 307, dated 20.05.2013, issued by Disability Board of Dr. BSA Hospital as Ex.PW1/8, Bill dated 10.08.2012, for purchase of Machine for exercise as Ex.PW1/9, Medical Bills, filed with the DAR as Ex.PW1/10 to Ex.PW1/85 respectively, Copies of insurance policy, registration certificate, driving license, superdarinama, arrest memo and vehicle mechanical inspection report as Mark-C to Mark-H, Photograph of petitioner, at the time of discharge, dated 02.08.2011 as Ex.PW1/86, Copy of matric certificate and marksheet as Ex.PW1/87, Copy of Aadhar cards of his family members as Ex.PW1/88 to Ex.PW1/89, Copy of school fees and fee receipt as Ex.PW1/90 and Ex.PW1/91, Certificate dated 14.01.2019, issued by Dr. Jaideep Bansal as Ex.PW1/92, Ultrasound report and ultrasound bill, both dated 02.11.2018 as Ex.PW1/93 and Ex.PW1/94, Medical Booking slip of Central Diagnostics, dated 24.05.2016, 26.05.2016, 27.05.2016, 28.05.2016, 29.05.2016, 30.05.2016, 31.05.2016, 01.06.2016, 16.12.2014, 27.05.2015, 31.11.2016, 11.01.2017, 17.01.2018 and 30.10.2018, as Ex.PW1/95 (Colly) (14 bills), Original treatment record dated 30.08.2014, 29.10.2014, 17.12.2014, 04.02.2015, 15.04.2015, 22.07.2015, 02.12.2015, 27.05.2015, 13.01.2016, 24.02.2016, 06.04.2016, 25.05.2016, 08.06.2016, 21.09.2016, 26.10.2016, Page 13 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 14 of71 30.11.2016, 25.03.2017, 08.08.2018, 31.10.2018, 26.11.2018, 27.11.2018, 17.01.2018, 14.01.2019, as Ex.PW1/96(Colly) (30 pages), Original bills of medicine from Ladli Jee 98-4 Chemist dated 02.10.2015, 20.10.2015, 28.07.2016, 22.02.2017, 29.10.2014, 17.12.2014, 04.02.2015, 15.04.2015, 22.07.2015, 02.12.2015, 27.05.2015, 13.01.2016, 24.02.2016, 06.04.2016, 25.05.2016, 08.06.2016, 21.09.2016, 26.10.2016, 30.11.2016, 30.11.2016, 11.01.2017, 25.03.2017, 17.01.2018, 08.08.2018, 31.10.2018, 19.12.2018, & 14.01.2019, as Ex.PW1/97( already exhibited by PW9 as Ex. PW9/1 (Colly) (27 bills), Original test report dated 16.12.2014, 27.05.2015, 30.11.2016, 11.01.2017, 07.01.2017, 04.01.2017, 17.01.2018, 30.10.2018, 25.11.2018, 19.12.2018 as Ex.PW1/98 (Colly) (20 pages), Original Private OPD receipt of Maharaja Agrasen Hospital, dated 11.01.2017, 25.03.2017, 17.01.2018, 08.08.2018, 31.10.2018, 26.11.2018, 27.11.2018 and 19.12.2018 as Ex.PW 1/98 (Colly) (8 receipt), Original Invoice dated 24.06.2018 as Ex. PW1/100, Original receipt of Maharaja Agrasen Hospital dated 24.02.2016 as Ex.PW1/101, Original bill of supply of Maharaja Agrasen Hospital, dated 26.11.2018, as Ex.PW1/102.
12. PW1 was duly cross-examined by Ld. Counsel for the insurance company/R3, wherein he deposed that he was running a shop of Commission Agent, at Bahadurgarh and Page 14 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 15 of71 he was the proprietor of firm namely Prem Chand Ajay Kumar. He further deposed that the said firm is still running but, he voluntarily deposed that the said firm is not in a working condition. He further deposed that he is not an income tax payee and the said firm is also not an income tax payee. He admitted that he has not filed any document, to show that he was earning Rs. 50,000/- per month, from the business of commission agent. He further deposed that he has a driving license. He further deposed that the doctor never advised him to take physiotherapy treatment, for one month or two months. He further deposed that Dr. Jaideep Bansal advised him to take physiotherapy treatment. He denied the suggestion that the doctor advised him to take physiotherapy treatment for long time. He further denied the suggestion that he has not incurred Rs. 22,000/- per month, on physiotherapy and doctor fees. He further deposed that he has not filed any bill of repair of his motorcycle, with a cost of Rs. 20,000/-. He admitted that he has not got assessed the repair of his motorcycle, from Surveyor, authorized by IRDA. He denied the suggestion that he has mentioned wrong facts in paragraph no. 15 of his affidavit. He further denied the suggestion that he has filed false and fabricated bills of conveyance, physiotherapy and medical treatment. He further denied the suggestion that he had not suffered any loss of income, due to the accident or due to the disability, as his business is still running. He deposed that he had not seen the crane bearing no. HR-55M-3819.He further deposed that the said Page 15 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 16 of71 offending vehicle was coming from behind. He deposed that he cannot tell the speed of the offending vehicle. He further deposed that he was not conscious after the accident and he does not know, who lodged the FIR. He further deposed that police recorded his statement at his residence, Bahadurgarh. He further deposed that he had not accompanied the police, to visit the spot of accident. He further deposed that the police officials has not prepared the site plan at his instance. He admitted that the accident took place, in the middle of the road. He denied the suggestion that he was driving the motorcycle at a very high speed and his motorcycle has skid. He admitted that he was driving his motorcycle, at a speed of 30-35 KM/h, before the accident took place. He denied the suggestion that the driver of the offending vehicle was not rash and negligent, at the time of accident. He deposed that he does not remember that there was a sharp curve in the road, where the accident took place.
13. During the course of his further cross-examination, qua additional affidavit, PW1 deposed that he is 10 th pass. He further deposed that he has read the affidavit Ex.PW1/B but, he does not remember the date, when he has gone through the said affidavit. He admitted that he does not remember the date of its preparation. He denied the suggestion that all the bills relied by him are forged and fabricated. He admitted that he has not filed documents in support his expenses of Rs. 25,000/-, as mentioned in Page 16 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 17 of71 paragraph no. 3 of his affidavit. He denied the suggestion that he had not filed any document, regarding any mental disability, as mentioned in his evidence by way of affidavit. During the course of his cross examination, a question was put to PW1, requiring him to show document from the file, regarding loss of memory/ disability certificate, to which he identified the document as Ex.PW1/92, from the court file. Again question was put to PW1, as to whether Ex.PW1/92, was filed on record, after closing his evidence, to which he answered that it is a matter of record. He admitted that Ex.PW1/92 does not bear his signatures. He further admitted that he had summoned the witness, namely Neeraj Kumar Malik as PW4, in support of his case. A question was put to PW1, as to whether and on what basis, he has stated in paragraph no. 7 of his evidence by way of affidavit Ex.PW1/B, that Mr. Neeraj Kumar Malik was in collusion with the respondents, to which he answered that he had not summoned Neeraj Kumar Malik and the court had summoned the said witness. He deposed that he cannot tell, how Mr. Neeraj Kumar Malik had colluded with the respondents. He further deposed that he has no documentary proof in this regard. He denied the suggestion that he has filed false and fabricated documents.
14. The petitioner further examined Sh. Jagmohan Garg, as PW2, who led his evidence by way of affidavit Ex.PW2/A, wherein he deposed that he is the eye witness in the present case. He has placed reliance upon his Aadhar card as Page 17 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 18 of71 Ex.PW2/1. He deposed that on 06.07.2011, at about 1.45 pm, he was coming from Sonipat to Lawrence Road, Delhi, on his motorcycle, via Mukarba Chowk Flyover. He further deposed that the offending vehicle (crane), bearing no. HR-55M-3819, was coming behind the petitioner, with very excessive speed, driven by R1, negligently, rashly, without following traffic norms and attempting to overtake the petitioner and that the petitioner was driving his motorcycle in the right lane, at a speed of about 30-40 k/hr. He further deposed that at about 1.45 pm, at Mukarba Chowk Flyover, in front of Khatta Sonipat to Delhi Road, the offending vehicle suddenly hit the motorcycle, driven by the petitioner, due to which, the petitioner fell down on the road and sustained multiple injuries. He further deposed that the offending vehicle did not give any signal, during the attempt of overtaking, having knowledge that overtaking at the spot of accident was impossible but, the same is invitation to put the life of other road users at risk, more particularly, when the offending vehicle was plying at high and uncontrollable speed. He further deposed that the petitioner fell down on the road and received multiple injuries, due to the said accident. He further deposed that due to the accident, the petitioner became unconscious and was removed to BJRM Hospital, by the police officials. He further deposed that the police officials recorded his statement, regarding the said accident.
15. PW2 was duly cross-examined by Ld. Counsel for the Page 18 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 19 of71 insurance company/R3, wherein he deposed that on the date of his deposition, he has not brought the summon, as he has not received the same. He further deposed that he does not know Mr. Ajay Kumar Goyal. He further deposed that he had not informed the police, regarding the alleged accident, on 06.07.2011. He further deposed that the injured was not shifted by him to the hospital. He further deposed that when he came from Sonepat, Haryana, he took right turn, to go to Lawrence Road. He further deposed that he does not know, where the accident took place. He again said, he does not remember, where the accident took place. He further deposed that the accident occurred near Khatta and he does not remember other details. He further deposed that he has no knowledge, whether there was heavy traffic and a red light in front of Khatta. He further deposed that the police had prepared some documents but, he does not know details regarding the same. He further deposed that he does not remember the date, when he earlier appeared in the court. He further deposed that he does not remember, when his affidavit was prepared. He admitted that the offending vehicle was on his right side and the same overtook the motorcycle of the injured. He further deposed that he was driving his motorcycle, at a speed of 30-40 Kms per hour and injured was also riding his motorcycle at a speed of 30- 40 Kms per hour. He further deposed that his statement was recorded by the IO, at the spot, at about 2:30-2:45 pm. He denied the suggestion that he was not present at the spot nor he had seen the accident. He further denied the Page 19 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 20 of71 suggestion that the accident took place, due to rash and negligent driving of his motorcycle by the injured Ajay Goyal. He further deposed that he had not mentioned in his complaint, that which portion of the crane had hit the motorcycle of the injured. He further deposed that the accident took place, while the crane cross the motorcycle and the back portion of the motorcycle was struck with the crane. He denied the suggestion that he was not present at the spot. He further denied the suggestion that he was deposing falsely, at the instance of the injured, as they belong to the same place.
16. Petitioner further examined Sh. K.D. Sharma, Record Clerk from Maharaja Agarsen Hospital, Punjabi Bagh, Delhi, as PW3, who deposed that he was a summoned witness and on the date of his deposition, he has brought the summoned record of patient Ajay Kumar. He relied upon the copy of final bill and discharge summary already Ex.PW1/2 and Ex.PW1/3. PW3 was duly cross-examined by Ld. Counsel for the insurance company/R3, wherein he deposed that he has no personal knowledge, regarding the record, brought by him in the court. He further deposed that the doctor, who prepared the discharge summary, has left the services of their hospital but, his address is available in the hospital record. He further deposed that the patient paid Rs.92,040/- only, to the hospital regarding final bill.
Page 20 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 21 of71
17. Petitioner has further recalled PW3, for proving 22 private OPD card receipts, which was Mark-A (Colly), bearing the signatures of Dr. Jaideep Bansal at point A. After going through the said record, PW3 deposed that the record of said receipts is not maintained by Maharaja Agarsen Hospital, Punjabi Bagh, Delhi, as they are of private OPD of Dr. Jaideep Bansal, Neurologist, who has since left the hospital. He further deposed that no record of private OPD or general OPD, is maintained by the said hospital. He further deposed that only record of IPD (Inpatient record) is maintained by the hospital. He was further cross-examined by Ld. Counsel for the insurance company/R3, wherein he admitted that the documents Mark-A were not prepared in his presence or that he has no personal knowledge about the same. He further deposed that charges of General OPD in their hospital is Rs.30/- and the charges of Private OPDs, are Rs. 700, Rs. 800/- and Rs. 1,000/-.
18. Petitioner further examined Sh. Neeraj Kumar Malik, as PW4. He was a summoned witness. He deposed that on the date of his deposition, he has brought the summoned record i.e. the counter receipt book of bills, issued by him, to the patient namely Sh. Ajay Kumar, which are already exhibited as Ex.PW1/41, Ex.PW1/42, Ex.PW1/44, Ex.PW1/45, Ex.PW1/46, Ex.PW1/49, Ex.PW1/50, Ex.PW1/51, Ex.PW1/52, Ex.PW1/53, Ex.PW1/54, Ex.PW1/55. He further deposed that he has provided the services of physiotherapy, to the injured namely Sh. Ajay Page 21 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 22 of71 Kumar continuously.
19. PW4 was duly cross-examined by Ld. Counsel for the insurance company/R3, wherein he deposed that he has not brought his degree, regarding his profession of physiotherapy. He further deposed that he had started physiotherapy, upon the patient, after going through the medical advice, given by the doctor. He admitted that the period of physiotherapy is not mentioned in the discharge slip of Maharaja Agarsen Hospital, which is Ex.PW1/2. He further admitted that the period of physiotherapy is not mentioned on prescription slips, dated 07.03.2012, 14.04.2012, 16.05.2012, 27.06.2012, 22.08.2012, 31.10.2012, 11.01.2012, 18.01.2012, 08.02.2012, 09.01.2013, 17.07.2013, 31.08.2013. He further deposed that he did not prepare any chart, of the period, for which physiotherapy was to be given to the patient. He voluntarily deposed that it cannot be done, as no fix time period can be there for physiotherapy, which depends upon individual condition of each patient. He further deposed that he had maintained the registers, showing the attendance of the patient, while undergoing physiotherapy, however as they were old, hence he was not in a position to produce them. He denied the suggestion that he has not maintained any register, due to which, he was not in a position to produce the same. He further deposed that he has not maintained any record, to show the timings of his visit, to the house of the patient, for physiotherapy. He denied the suggestion that Page 22 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 23 of71 the patient Ajay Kumar is his neighbor.
20. During the course of his cross examination, PW4 was shown bill No. 141 of Sparsh Physio Clinic, already Ex.PW1/53 and question was put to him, that there was cutting on the dates 21.04.2012 to 15.05.2012 and in response to the said question, PW4 has produced and shown bill book, containing the carbon copy of the bills, out of which, carbon copy of bill No. 141 was seen by the Tribunal and it was observed that "there were various differences in the bill Ex.PW1/53 and its carbon copy, as produced by the witness, as after the name Ajay Goyal in Ex.PW1/53, there is a hyphen sign, whereas, it was missing in the carbon copy. Similarly, there is sign of slash with hyphen in the carbon copy, which is missing in Ex.PW1/53, after twelve thousand five hundred only. Similarly, there is cutting in dates while writing '21/4/12 to 15/5/12', which has been mentioned twice in the original receipt Ex.PW1/53, whereas, in the carbon copy of the same, it has surprisingly been mentioned with original pen and not in carbon. Thus, it was observed that the said bill and its carbon copy as produced by the witness, have been fabricated, to suit the case of the petitioner and cannot be relied upon" and the bill book, containing the carbon copy of the receipts, as produced by the witness was accordingly impounded and kept on the court record. Thereafter, PW4 stated that his bill books were lost and he had prepared the carbon copy receipts, after seeing the earlier photostat Page 23 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 24 of71 copies.
21. Thereafter, Ld. Counsel for the insurance co./R3 has also drawn attention of the Tribunal towards bill book No.4, wherein some torn carbon copy receipts were lying. The same was accordingly impounded and kept on record. PW4 further deposed that he has been seeing around 8-9 patients on an average, on each day. He further deposed that he did not maintain any book of accounts, in the year 2012-2013, regarding the amount received from the patients. He denied the suggestion that he has not brought any such book of accounts or that he was not maintaining any such book of accounts, as all the receipts produced by him are fabricated, to support the case of the petitioner. He further deposed that he does not file any income tax return. He further deposed that he has never filed any income tax return.
22. The petitioner further examined Sh. Bharat Singh as PW5.
He was also a summoned witness. He deposed that the patient/petitioner had hired his Max vehicle, bearing registration No. HR55-D-2319, for going to Maharaja Agarsen Hospital, Punjabi Bagh, Delhi. He further deposed that he has issued the bill, regarding charges for the period 07.07.2011 to 01.08.2011, amounting Rs. 52,000/- @ Rs. 2,000/- per day, which was already Ex.PW1/7. PW5 was duly cross-examined by Ld. Counsel for the insurance company/R3, wherein he deposed that the owner of the Page 24 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 25 of71 Max vehicle, bearing registration No. HR-55E-2319, is his real brother namely Sh. Satpal. He admitted that he has prepared the abovesaid receipt, as owner of the vehicle but, he is not the owner of the said vehicle. He further deposed that he has permit of his vehicle from Gurugram to Pataudi. He further deposed that he has no permit to ply his vehicle from Bahadurgarh to Delhi. He further deposed that he has not preserved the receipts of Toll Tax and as such, he is not in a position to produce them in the court. He voluntarily deposed that he was not aware, that he would have to come and depose in the matter. He admitted that he knows that a taxi cannot be plied on any route, for which, there is no permit. He further deposed that he does not know the petitioner Ajay Goyal. He further deposed that he used to take the family of the patient Ajay Goyal, to the hospital from 07.07.2011 to 01.08.2011. He further deposed that he never took the patient Ajay Goyal, to any hospital in his taxi. He denied the suggestion that he had prepared a false bill, to benefit the petitioner.
23. Petitioner further examined Sh. Jitender Kumar as PW6. He was a summoned witness. He deposed that on the date of his deposition, he has brought the summoned record i.e Ex.PW6/1 (colly) (running into 19 sheets). PW6 was duly cross-examined by Ld. Counsel for the insurance company/R3, wherein he deposed that he was the owner of vehicle bearing registration No. 63BT-1032. He further deposed that he has a permit of the abovesaid vehicle, Page 25 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 26 of71 which was valid from 23.08.2012 to 22.08.2013. He further deposed that when a taxi is coming from Haryana to Delhi, then after entering Delhi, the Toll Tax is imposed by MCD, however no State Tax is imposed. He further deposed that it is a State policy and as such, he cannot show any document in that regard. He further deposed that the Toll Tax was paid by the party/passenger. He admitted that in the bills, no name of the consumer has been mentioned and the bills have been shown only paid in cash. He further deposed that he has not written 'Ajay Goyal', on some of the abovesaid bills and he does not know, who has written it on the bills. He denied the suggestion that the said bills were not issued to Ajay Goyal. He further denied the suggestion that all the bills are false and fabricated.
24. Petitioner further examined Dr. Meenakshi Sidhar, HOD Blood Bank and present Chairperson Disability Board, of Dr. BSA Hospital as PW7. She was a summoned witness. She deposed that she has brought the summoned record and after seeing the disability certificate no. 307, dated 20.05.2023 of Dr. BSA Hospital, qua the patient Ajay Kumar S/o Sh. Prem Chand, already Ex.PW1/8, she identified signatures of Dr. Nimit Gupta, Dr. Sanjay Sharma, Dr. Amreshwar Narayan and Dr. Jagat Martolia, at point A to D respectively. She further deposed that she can identify their signatures, as she has seen them writing and signing, during the course of her duty. She further deposed that as per the said disability certificate Ex.PW1/8, the Page 26 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 27 of71 patient has suffered 50% permanent disability, because of left side hemiparesis. She further deposed that hemiparesis here means partial loss of power of left side of the body of the patient. She further deposed that the work, which would involve moving from one place to another, can now be done by the petitioner, only with a great difficulty. PW7 was duly cross-examined by Ld. Counsel for the insurance company/R3, wherein she deposed that if a person suffers a brain hemorrhage or brain stroke, then probably, he might suffer hemiparesis and there can be multiple factors to it. She admitted that in the record brought by her, which was Ex.PW7/3, there is no calculation chart, regarding the calculation of the disability. She further deposed that the muscle charting was done by physiotherapist and thereafter, the doctors saw that muscle charting and gave their report. She further deposed that the chart brought by her, is only showing the muscle strength of patient and it does not mention the difficulty level, which the patient would suffer. She denied the suggestion that the physiotherapist gives his opinion only by idea. She voluntarily deposed that physiotherapist are trained to do so. She admitted that the said certificate was not prepared before her and she is only deposing on the basis of record. She further admitted that she was not the member of the board, which assessed the disability of the petitioner. She denied the suggestion that the disability of patient was not properly assessed, as it is not mentioned in the calculation sheet. She further denied the suggestion that she cannot tell about it, as she is neither Page 27 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 28 of71 an orthopaedician nor neurosurgeon.
25. Petitioner further examined IO SI(Retired) Rajender Singh as PW8. He deposed that he was the IO of the case. He further deposed that he got verified the bills of Sparsh Physio Clinic, from Dr. Neeraj Malik. He further deposed that the said bills were not counter checked or checked or verified by him but, he simply got it verified from Dr. Neeraj Malik. PW8 was duly cross-examined by Ld. Counsel for the insurance company/R3, wherein he admitted that he went for verification to Dr. Neeraj Malik, shown him the bills and Dr. Neeraj Malik signed on the bills and returned the same to him. He further deposed that Dr. Neeraj Malik had not seen any counter slip, before putting his signatures, on the said bills. He deposed that he does not know and cannot say, if the said bills are forged or genuine.
26. Petitioner further examined Sh. Gurdeep Yadav, Proprietor of Ladli Jee 98-4 Chemist, near Maharaja Agarsen Hospital, Delhi as PW9, who deposed that he was a summoned witness. During the course of his examination in chief, PW8 has been shown original medical bills from record, which was already Ex.PW9/1(Colly)(running into 27 sheets) and he admitted that the same has been issued from his chemist shop. He further deposed that Ex.PW1/56 to Ex.PW1/63, except Ex.PW1/57 & Ex.PW1/58, were also issued from his medical store.
Page 28 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 29 of71
27. PW9 was only partly cross-examined by Ld. Counsel for the insurance company/R3, as the cross examination got interrupted, as the petitioner started shouting and using abusive language towards the counsel for the Insurance Company and thereafter, the petitioner failed to summon the said witness again, for conclusion of his cross examination. Thus, the part examination of PW9, cannot be read, in support of the case of the petitioner. During the course of his part cross examination, PW9 deposed that on the date of his deposition, he has not brought any document, to show that he is the proprietor of the above mentioned chemist shop. He admitted that he has not brought certificate U/s 65B of the Indian Evidence Act. He further deposed that he has no diploma in pharmacy. He admitted that as per law, it is necessary for the chemist, to have a degree/diploma in pharmacy, for selling the medicines. He further deposed that he has no knowledge about medicines.
28. The petitioner further examined Dr. Jaideep Bansal, again as PW9, who was a summoned witness. He deposed that he was posted as Senior Consultant Neurologist, at Maharaja Agarsen Hospital, Punjabi Bagh, w.e.f. 2001 to 2019. He further deposed that he had examined patient Ajay Kumar Goel, who had consulted him, on multiple occasions, with history of RTA, with left hemiparesis, with right basal ganglia bleed, on 06.07.2011. He further deposed that he Page 29 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 30 of71 was under his treatment w.e.f. 11.01.2012 onwards. He further deposed that he has seen the original medical prescriptions dated 11.01.2012, 18.01.2012, 18.02.2012, 07.03.2012, 14.04.2012, 16.05.2012, 27.06.2012, 22.08.2012, 31.10.2012, 09.01.2013, 17.07.2013, 31.08.2013, which were already Ex.PW1/4 (Colly), and deposed that the same were in his handwriting and contain his signatures at point A. He further deposed that he has also seen the medical prescriptions of the petitioner, which were already on record as Ex.PW1/96 (Colly). He deposed that he has issued the said prescription slips, after examination of the petitioner, and the same bears his signatures at point A. He further deposed that on 14.01.2019, he has examined the petitioner and issued the certificate, which is already on record as Ex.PW1/92, which bears his signatures at point A. He further deposed that all the above said medical records are true and correct and have been duly issued by him, after examining the petitioner. He further deposed that the petitioner still requires regular follow up treatment and prolonged physiotherapy, although his condition has improved to some extent with treatment.
29. PW9 was duly cross-examined by Ld. Counsel for the insurance company/R3, wherein he denied the suggestion that he had conducted last OPD examination of the patient on 31.08.2013. He voluntarily deposed that thereafter also, Page 30 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 31 of71 he had examined the petitioner and recently, two months ago, the petitioner had consulted him. He denied the suggestion that the disability sustained by the petitioner has got no relation with the neurological problem, suffered by him, in the aftermath of case accident. He admitted that Hemiparesis is a medical condition, which can also occur, due to clotting of blood/brain hemorrhage. He voluntarily deposed that it can also happen due to injury. He admitted that the petitioner had not consulted him, for about two years in year 2020 and 2021 and thereafter, he had again approached him in the year 2022, about two months back. He further deposed that he had not given any estimate of future treatment, in the form of physiotherapy etc., required by the petitioner, as the same is not possible to be disclosed, without monitoring the progress of the petitioner, till such time, a patient is suffering from some bodily deficit or neurological deficit. He deposed that he has not told the patient to stop physiotherapy. He further deposed that he did not specifically write the number of sittings of physiotherapy or the duration of time, in months, years etc., for which a patient must take physiotherapy sittings. He however, deposed that if he told a patient to revisit the hospital, for follow up treatment, after two months and prescribed physiotherapy, for the intervening period, then, he is supposed to take physiotherapy, continuously till next follow up. He deposed that Physiotherapy may also include self exercise. He further deposed that in the present case, the petitioner may require life long self exercise, with Page 31 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 32 of71 intermittent physiotherapy, under supervision of trained therapist. He denied the suggestion that he is in collusion with the petitioner and he is deposing falsely, to support the claim of the petitioner.
30. In its defence, R3/insurance company examined Sh. Nikhil Goswami, Manager Legal as R3W1, by way of evidence affidavit Ex.R3W1/A, wherein he deposed that the offending vehicle was insured in the name of Gemini Equipment & Rentals Pvt. Ltd/R2, vide contractor's plant and Machinery insurance schedule policy no. 5005/0005721/03, for the period commencing from 09.03.2011 to 08.03.2012. He further deposed that a notice U/o XII Rule 8 CPC, dated 11.05.2018, was got issued through their advocate Sh. S.K. Tyagi on 11.05.2018, through registered/speed post, on the last known address of the respondents, requiring them to produce the original driving license of driver, permit, registration certificate and insurance policy of the offending vehicle, which was valid on the date of accident i.e. 08.07.2011. He further deposed that the respondents failed to produce the documents, as per notice dated 11.05.2018. He further deposed that as per clause no. (v) & (vi) of Special conditions of Contractor's Plant and Machinery Insurance Schedule policy - " (v) any type of transit risks are excluded (loss during transit is not covered) and (vi) Road traffic acts cover (or equivalent) for motor vehicle is excluded under the policy". He further deposed that the liability of R3, is subject to the terms and Page 32 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 33 of71 conditions of said policy and any type of transit risk, out of the plant is not covered under the said policy. He further deposed that there is breach of special conditions of the contractor's plant and machinery insurance schedule policy, therefore R3 is not liable to pay any compensation to the petitioner/injured. In his evidence, R3W1 has placed reliance on Contractor's Plant and Machinery Insurance Schedule Policy as Ex.R3W1/1(Colly), Notice U/o XII rule 8 CPC, as Ex.R3W1/2, Postal receipts as Ex.R3W1/3 to Ex.R3W1/5, tracking report as Ex.R3W1/6 and returned envelopes as Ex.R3W1/7 and Ex.R3W1/8. R3W1 was duly cross-examined by Ld. Counsel for the petitioner, wherein he denied the suggestion that the said policy is covering third party risk in a road accident.
31. This Tribunal has heard the final arguments, as advanced by Ld. Counsel for the parties and have carefully perused the record.
32. On appreciation of evidence as adduced, by the parties, in support of their respective versions, the issue-wise findings of this Tribunal are reproduced herein below:
ISSUE No. 1Whether on 06.07.2011 at about 1.45 pm, near Mukarba Chowk Flyover in front of Khatta Sonipat to Delhi Road, crane bearing no. HR-55M-3819 which was being driven rashly and negligently by Roop Narayan hit the motorcycle no. HR-12G-1264 of petition and caused injuries to him? OPP Page 33 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 34 of71
33. The onus of proving this issue, on preponderance of probabilities, was upon the petitioner/claimant. For deciding the present issue, the testimony of PW1 Sh. Ajay Kumar is relevant, being an eyewitness as well as the injured. In the present matter, as per the contents of the FIR as well as DAR, accident in question has taken place, as the petitioner, who was going on his motorcycle, bearing registration no. HR-12G-1264, was hit by a crane, truck mounted bearing registration no. HR-55M-3819, being driven by R1, in a rash and negligent manner and at a very high speed. It was further averred that the offending vehicle had hit the victim's vehicle, while trying to overtake the said vehicle of the victim. To prove the ingredients of rashness and negligence on the part of R1, in driving the offending vehicle, the petitioner got himself examined as PW1. He further examined Sh. Jagmohan Garg as PW2, who was also cited by the IO, as an eye witness of the case accident. Both PW1 and PW2, in their evidence, reiterated the contents of the FIR/DAR, to the effect that the accident in question took place, when the offending vehicle, being driven by R1, was trying to overtake victim's vehicle. They further deposed that at the time of accident, R1 was driving the offending vehicle, at a very high speed, as well as rashly and negligently.
34. In the present matter, chargesheet was also filed against R1, with the allegation of rashness and negligence, on the part of Page 34 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 35 of71 R1, while driving the offending vehicle, resulting in the case accident but, R1 and R2, being driver and owner of the offending vehicle respectively, failed to contest the claim petition/DAR, by filing any written statement in their defence and also failed to cross-examine PW1/petitioner and PW2 Jagmohan Garg, so as to bring forth any falsity, from the deposition of PW1 and PW2, in denial to the factum of rashness and negligence, on the part of R1, in causing the alleged accident.
35. During the course of cross examination of PW1 and PW2, the insurance company/R3 though raised the defence, that the accident in question has taken place, due to rash and negligent driving of the victim's vehicle by the petitioner but, R3 failed to elicit any admission, from the cross examination of PW1, or PW2 so as to prove any rashness or negligence, on the part of the petitioner, which has allegedly contributed to the accident in question. During the course of cross examination of PW1, questions were put to PW1, as to whether, he had seen the offending crane, bearing registration no. HR-55M-3819, to which he deposed that the offending vehicle came from behind and he cannot tell the speed of the offending vehicle and that he was not conscious, after the accident. He admitted that the accident took place in the middle of the road but, he denied the suggestion, that he was driving his motorcycle at a high speed and that his motorcycle got skid. He rather deposed that at the time of accident, the speed of his motorcycle was Page 35 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 36 of71 30-35 km/h. Further, questions were also put to PW2, by Ld. Counsel for R3, wherein he specifically admitted that the offending vehicle was on his right side and it overtook the motorcycle of the injured. By putting such suggestion, the insurance company/R3 has admitted, that the accident has taken place, while the offending vehicle was trying to overtake the motorcycle of the victim. PW2 further deposed that the accident has taken place, when the crane crosses the motorcycle and the back portion of the motorcycle got entangled with the crane. Thus, the said deposition proves rash and negligent driving of the offending vehicle by R1.
36. Even otherwise, since R1 failed to file any written statement and also failed to cross examine PW1 and PW2, despite being granted opportunity therefore, R1 deemed to have admitted, that there was rashness and negligence, on his part, in causing the accident in question. R1 further failed to lead any evidence, so as to prove that he was falsely implicated in this case by the IO, in connivance with the petitioner. Further, R1 also failed to prove that he has ever approached to any higher authority, with respect to his false implication in the present case. Consequently, in view of the unrebutted testimony of PW1 and PW2, it stands duly proved, that the accident in question, in which, the petitioner has sustained injuries, as evident from his medical treatment papers, had taken place, due to rash and negligent driving of the offending vehicle by R1.
Page 36 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 37 of71 Issue no.1 is accordingly decided in favour of the petitioner and against the respondents.
ISSUE No. 2Whether petitioner is entitled to compensation, if so, to what amount and from whom?OPP
37. In view of the findings of this Tribunal, qua issue no.1 regarding negligence of R1, resulting in the occurrence of the case accident, this Tribunal is of the considered opinion that the petitioner/claimant is entitled to compensation, in respect of pain and suffering, medical expenses, special diet charges, conveyance charges and other expenditure, incurred by him, on the account of injuries sustained in the above-mentioned road traffic accident. This Tribunal shall now examine the entire evidence, including the documents of the petitioner/claimant, for the purpose of arriving at a finding, about the quantum of compensation, to which the petitioner/claimant is entitled.
38. Section 168 of the Act enjoins the Claim Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation, which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza Page 37 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 38 of71 nor it should be niggardly.
MEDICAL EXPENSES
39. To prove the expenditure incurred by the petitioner, on his treatment, the petitioner got himself examined as PW1. Though, he has not quantified the exact amount, spent by him, on his treatment however, in his evidence, PW1 has placed reliance on his medical treatment papers, as Ex.PW1/2, Ex.PW1/3 i.e. discharge slip of Maharaja Agarsen Hospital, Punjabi Bagh, dated 02.08.2011 and 24.09.2011, medical prescription Ex.PW1/4 (Colly) (26 pages), copy of medical bills Ex.PW1/5 and Ex.PW1/6 (Colly) (43 bills). The exhibition of the said documents were objected to, by Ld. Counsel for the insurance company, on the ground of mode of proof. Further, by way of his additional affidavit, Ex. PW1/B, the petitioner has placed reliance on 14 medical bills, of various tests, undergone by him, at Central Diagnostics, along with its prescriptions as Ex. PW1/95(colly.), 30 Original treatment record/prescriptions of Dr. Jaideep Bansal as Ex. PW1/96 (colly.), 27 Bills of medicines, purchased from Ladli Jee 98-4 Chemist Shop, which were exhibited by PW9, in his evidence as Ex. PW9/1(colly.), 20 pages of Original test report as Ex. PW1/98(colly.), 8 Receipts of payment of private OPDs of Dr. Jaideep Bansal Ex. PW1/99(colly.), original invoice, as to purchase of Page 38 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 39 of71 medicine Ex. PW1/100, 2 receipts of Maharaja Agarsen Hospital as Ex. PW1/101 and Ex. PW1/102. The exhibition of the said documents were also objected by Ld. Counsel for R3, on the ground of mode of proof.
40. In view of the objections, qua exhibition of documents, as raised by Ld. Counsel for R3, the petitioner has examined Sh. K.D. Sharma, Record Clerk, from Maharaja Agarsen Hospital, Punjabi Bagh, Delhi, as PW3, who verified due execution of documents Ex. PW1/2 and Ex. PW1/3, by the concerned hospital. PW3, during the course of his cross- examination, by Ld. Counsel for R3, deposed that the patient has paid Rs. 92,040/- only, to the hospital, regarding final bill. Thus, the petitioner has duly proved the documents Ex. PW1/2 and Ex. PW1/3.
41. The petitioner further examined Dr. Jaideep Bansal as PW9, who deposed that he has issued the medical prescriptions already Ex.PW1/4(Colly) and Ex. PW1/96 (colly). Thus, by the evidence of Dr. Jaideep Bansal, it has specifically came on record, that after the accident, the petitioner was under
continuous treatment of Dr. Jaideep Bansal. During the course of his cross-examination by Ld. Counsel for R3, no suggestion was put to the said witness, that the aforesaid medical record does not pertain to the petitioner and that the same has not been issued by PW9. Thus, Ex. PW1/4 (colly.) and Ex. PW1/96 (colly.) also stands duly proved. It is also worthwhile to mention here that as Dr. Jaideep Page 39 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 40 of71 Bansal has proved that the prescriptions Ex. PW1/96 (colly), were issued by him, thus, Ex. PW1/23, Ex.
PW1/24, Ex.PW1/25, Ex. PW1/26, Ex. PW1/36, Ex. PW1/37, Ex. PW1/38, Ex. PW1/99 (colly), as well as 6 receipts, which are part of Ex. PW1/6 (colly.) i.e receipts towards payment of charges of private OPD of Dr. Jaideep Bansal, also stands duly proved. By the evidence of Dr. Jaideep Bansal, even the document Ex. PW1/100 i.e amount spent by the petitioner, towards purchase of medicines, as mentioned in the prescription, issued by Dr. Jaideep Bansal, for payment of charges for the tests undergone by him, vide Bills Ex. PW1/95, PW1/101 and Ex. PW1/102, which were mentioned in the said prescription, also stands duly proved.
42. It is also noteworthy that as Dr. Jaideep Bansal has proved that the petitioner has received treatment from him, via private OPDs, and he has issued prescriptions, vide prescription slips Ex. PW1/96 (colly.), therefore, even though, the petitioner has been able to prove only few receipts of payment, vide receipts Ex. PW1/99 however, as the OPD charges are clearly mentioned in the prescription slips Ex. PW1/96 (colly.) therefore, petitioner is entitled for compensation qua the said amount.
43. In his evidence, the petitioner has further placed reliance on bills of physiotherapy, as allegedly issued by Dr. Neeraj Kumar Malik, as Ex.PW1/41, Ex. PW1/42, Ex. PW1/44 to Page 40 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 41 of71 Ex.PW1/46 and Ex. PW1/49 to Ex. PW1/55, the exhibition of which, was also objected by Ld. Counsel for R3, on the ground of mode of proof. Thus, to prove the said documents, the petitioner has examined Sh. Neeraj Kumar Malik, as PW4. In his evidence, PW4 deposed that he has brought counter receipt book of bills, issued by him, to the patient namely Sh. Ajay Kumar, which are Ex.PW1/41, Ex.PW1/42, Ex.PW1/44, Ex.PW1/45, Ex.PW1/46, Ex.PW1/49, Ex.PW1/50, Ex.PW1/51, Ex.PW1/52, Ex.PW1/53, Ex.PW1/54, Ex.PW1/55. He deposed that he had provided the services of physiotherapy, to the injured namely Sh. Ajay Kumar continuously.
44. During the course of cross-examination of PW4, 2 counter receipt books, as brought by him, were impounded, as several variations were noted in the bills, as relied by the petitioner and counter receipts, as produced by PW4. In his evidence, PW4 was shown bill no. 141 of Sparsh Physio Clinic Ex.PW1/53, and it was observed that there was cutting on the dates, as mentioned on the said bill and further variations were also noted in the carbon copy of bills, as brought by PW4, when compared with the bills, as relied by the petitioner, after which, PW4 admitted that his bill books were lost and he had prepared the carbon copy of bills, after seeing the earlier photostat copies. The bill books as impounded by this Tribunal, also found to be containing certain torn sheets, which also proves manipulations. The petitioner has also examined the IO, as Page 41 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 42 of71 PW8, who also admitted in his cross examination, that Dr. Neeraj Malik, verified the bills, as shown by him, to Dr. Neeraj Malik, without seeing any counter slip. Thus, 16 bills of Sparsh Physio Clinic, as allegedly issued by Dr. Neeraj Malik, which were exhibited by the petitioner, as part of Ex. PW1/6 (colly), Ex. PW1/18, Ex. PW1/19, Ex. PW1/41, Ex. PW1/42, Ex. PW1/44 to Ex.PW1/46 and Ex. PW1/49 to Ex. PW1/55, cannot be said to be proved and the petitioner is not entitled for any compensation, qua the said bills.
45. In his evidence, the petitioner has further exhibited the medical bills Ex.PW1/56 to Ex.PW1/63 (except Ex.PW1/57 and Ex.PW1/58), however, Ld. Counsel for R3, has taken objection, qua exhibition of the said medical bills, as to the mode of proof. Thereafter, the petitioner has examined Sh. Gurdeep Yadav, Proprietor of Ladli Jee 98-4 Chemist, near Maharaja Agarsen Hospital, Delhi as PW9, who admitted that the same has been issued from his chemist shop. He has also brought original medical bills, qua the petitioner and exhibited the same as Ex. PW9/1 colly. The bills exhibited by Sh. Gurdeep Yadav, Proprietor of Ladli Jee 98- 4 Chemist, was the same set of bills, which were relied by the petitioner, in his evidence affidavit, as Ex. PW1/97 (colly.).
46. PW9 was only partly cross-examined by Ld. Counsel for Page 42 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 43 of71 the insurance company/R3, as the cross examination got interrupted, as the petitioner started shouting and using abusive language towards the counsel for the Insurance Company and thereafter, the petitioner failed to summon the said witness again, for conclusion of his cross examination. Thus, the part examination of PW9, cannot be read, in support of the case of the petitioner. During the course of his part cross examination, PW9 deposed that on the date of his deposition, he has not brought any document, to show that he is the proprietor of the above mentioned chemist shop. He admitted that he has not brought certificate U/s 65B of the Indian Evidence Act. He further deposed that he has no diploma in pharmacy. He admitted that as per law, it is necessary for the chemist, to have a degree/diploma in pharmacy, for selling the medicines. He further deposed that he has no knowledge about medicines. Thus, Ex. PW9/1 (colly.), 13 bills of Ladli Jee 98.4 Chemist, as allegedly issued by Gurdeep Yadav, which were exhibited by the petitioner, as part of Ex. PW1/6 (colly), Ex.PW1/56 to Ex.PW1/63 (except Ex.PW1/57 and Ex.PW1/58), cannot be said to be duly proved.
47. The petitioner has further placed reliance on certain bills as part of Ex. PW1/6 colly, which includes, final bill of Maharaja Agarsen Hospital of Rs. 93,481/-, and as per the testimony of PW3, petitioner has paid Rs. 92,040/- qua said bill, 1 bill for purchase of equipment from Ken Surgicals, as Page 43 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 44 of71 verified by IO, of Rs. 17,632/-, 1 verified bill of Raj Medicos of Rs. 350/-, 3 bills of Sh. Ganesh Medicos of Rs. 964/-, 1 verified bill of Laxmi Jee Chemist of Rs. 1,641/- 1 bill of central Diagnostics of Rs. 600/-. There has been no cross examination of PW1 or of the IO, that the said documents are fabricated and the verification of said documents were not properly conducted by the IO therefore, the petitioner is entitled to receive compensation qua the said bills.
48. The petitioner has further placed reliance on Ex. PW1/9, which was merely a quotation, without any proof, as to purchase of any equipment therefore, the petitioner is not entitled for any compensation qua Ex. PW1/9. The petitioner has further placed reliance on additional bills i.e Ex. PW1/15, Ex. PW1/16, Ex. PW1/20, Ex. PW1/21, Ex. PW1/22, Ex. PW1/27, Ex. PW1/28, Ex.PW1/29 to Ex. PW1/35, Ex. PW1/39, Ex. PW1/40, Ex. PW1/43, Ex. PW1/47, Ex. PW1/48, Ex. PW1/57, Ex. PW1/58, Ex. PW1/64, Ex. PW1/65, Ex. PW1/70 to Ex. PW1/85, Ex. PW1/94 and there has been no cross examination of PW1 that he has not incurred any expenditure, as mentioned in the said bills therefore, petitioner, is entitled for compensation qua the said bills.
49. In view of the aforesaid discussion and apart from the unproved bills, as discussed above, it has been proved by the petitioner that he has incurred aggregate expenditure of Page 44 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 45 of71 Rs. 1,99,078/-, on his medical treatment. Accordingly, in view of the original medical bills, the petitioner is entitled for compensation of Rs. 1,99,078/-, towards medical expenses. Thus, this Tribunal deems it appropriate to award compensation of Rs. 1,99,078/-, to the petitioner under the head of medical expenses.
SPECIAL DIET AND CONVEYANCE
50. The petitioner had sought compensation, on account of expenditure, incurred by him on special diet and conveyance. However, the petitioner has not quantified the exact expenditure, as incurred by him on special diet and conveyance. He has not placed on record, prescription slip of any doctor, medical practitioner or dietitian, issued in his name (the name of the petitioner), advising him to take any form of special diet or any bill of special diet, such as high protein diet or liquid diet or nutritional supplements for speedy recovery of the injuries sustained in the case accident.
51. Further, though the petitioner has placed on record certain bills, so as to prove expenditure incurred by him, on conveyance, during his treatment period and he exhibited the same as Ex. PW1/7 and 19 bills, as part of Ex. PW1/6 (colly.). However, Ld. counsel for the insurance company vehemently argued that receipt Ex.PW1/7, issued by PW5 Page 45 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 46 of71 Bharat Singh, was a manipulated document, and thus cannot be considered, while granting compensation to the petitioner.
52. In his evidence, PW5 deposed that the petitioner has hired his Max vehicle, bearing registration no. HR55-D-2319, for going to Maharaja Agarsen Hospital, Punjabi Bagh, Delhi and he had issued bills for the same, for the period 07.07.2011 to 01.08.2011, which was for an aggregate amount of Rs. 52,000/- i.e @ Rs.2,000/- per day. But, during the course of his cross-examination by Ld. Counsel for R3, PW5 deposed that his brother Satpal was the owner of the said vehicle. He further admitted that he issued the receipt, as owner of the said vehicle, however, he is not the owner of the said vehicle. He further deposed that he has no permit to ply the said vehicle, from Bahadurgarh to Delhi. He further deposed that he does not know the petitioner, Ajay Goyal. He further deposed that he used to take the family of the patient Ajay Goyal to hospital in his taxi. Thus, by the evidence of PW5, it stands duly proved that the petitioner never used the vehicle of PW5, for his own conveyance and the bill Ex. PW1/7, even if raised, was only for the purpose of taking the family members of the petitioner, from Bahadurgarh to Delhi. Even otherwise, execution of bills Ex. PW1/7 by PW5, is also doubtful, in view of the cross examination of PW5, as conducted by Ld. Counsel for R3, as PW5 admitted that he was not the owner of the said vehicle and there is no permit qua the said Page 46 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 47 of71 vehicle, to ply his vehicle from Bahadurgarh to Delhi. In view of the above said observations, it stands duly proved that the petitioner failed to prove any expenditure, on his conveyance, as mentioned in Ex. PW1/7.
53. Ld. counsel for the Insurance company/R3 has also argued that travelling bills Ex.PW6/1 (Colly), as allegedly issued by PW6 Sh. Jitender Kumar, are also forged and fabricated. In his evidence, PW6 Jitender Kumar exhibited bills Ex.PW6/1 (Colly) (running into 19 sheets), as the bills for taking Ajay Goyal from Bahadurgarh to Maharaja Agarsen Hospital, Punjabi Bagh, Delhi. But, during the course of his cross-examination by Ld. Counsel for R3, PW6 admitted that in the bills, no name of the consumer has been mentioned and the bills have been shown only paid in cash. He further deposed that he has not written 'Ajay Goyal', on some of the abovesaid bills and he does not know, who has written the said name on the bills. Perusal of bill Ex.PW6/1 (Colly) reveals that there were six bills, wherein name "Ajay Goyal" was mentioned and in the remaining bills, no name was mentioned. However, as PW6 has testified that he has not raised any bill, after mentioning the name of the customer therefore, the said deposition proves that the petitioner has fabricated certain bills, by mentioning his name thereon, to claim compensation. Further, on perusal of remaining un-named bills, which are part of Ex.PW6/1 (Colly), it cannot be ascertained, as to who has used the alleged vehicle. Thus, it can be safely concluded that the Page 47 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 48 of71 petitioner failed to prove due execution of bills Ex.PW6/1 (colly) therefore, the same cannot be taken into consideration, while determining the compensation, under the head of expenditure, incurred by the petitioner, on conveyance.
54. Thus, it can be safely concluded that the petitioner failed to prove that he has incurred any expenditure on special diet or conveyance. But, even the absence of proving the same, the requirement of special diet and conveyance, if any faced by the petitioner, during his treatment period, has to be ascertained, in accordance with the nature of injuries sustained by the petitioner.
55. In this context, a perusal of court record reveals that as per the medical treatment papers of the petitioner Ex.PW1/2, Ex.PW1/6 (colly), as well as MLC filed by the IO, along with the DAR Mark-A, the petitioner has sustained grievous injuries, due to the accident and initially, he was taken to BJRM Hospital, Jahangir Puri, Delhi and thereafter, the petitioner got shifted to Maharaja Agarsen Hospital, Punjabi Bagh, Delhi, where he remains admitted from 06.07.2011 to 30.07.2011 and from 22.09.2011 to 24.09.2011. Further, as evident from his treatment papers, even thereafter, the, petitioner was continuously under treatment from Maharaja Agarsen Hospital, Punjabi Bagh, Delhi, Brahm Shakti Hospital, Medanta Hospital and various other hospitals and clinics.
Page 48 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 49 of71
56. Besides this, the petitioner has examined Dr. Meenakshi Sidhar, HOD, Blood Bank and Chairperson of Disability Board, BSA Hospital, Delhi as PW7, who proved on record disability certificate of the petitioner, bearing No. 307, dated 20.05.2013, as Ex.PW1/8, as per which, the petitioner had sustained 50% permanent disability, because of left side hemiparesis. She deposed that hemiparesis means partial loss of power of left side of body of the patient. She further deposed that the work, which would involve moving from one place to another, can now be done by the petitioner, only with a great difficulty.
57. Perusal of the said disability certificate reveals that the petitioner has sustained 50% permanent disability, because of left side hemiparesis, due to the injuries sustained in the case accident and due to the same, the petitioner was having difficulty, in moving from one place to another. As per documents on record, the petitioner has been taking continuous treatment from the date of accident i.e. 06.07.2011 till 14.01.2019. Accordingly, in view of the nature of injuries sustained by the petitioner, as well as after considering the period of his hospitalization, coupled with 50% physical permanent disability, because of left side hemiparesis, sustained by the petitioner, the period of treatment cum recuperation, in case of the petitioner is ascertained to be about 90 months. Consequently, this Tribunal is of the opinion that during his treatment cum recuperation period, the petitioner must have incurred Page 49 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 50 of71 expenses, in procuring special diet, for speedy recovery, as well as in travelling from his residence to hospital and vice versa. Accordingly, a lump sum amount of Rs.1,00,000/-, is granted under this head to the petitioner, which includes Rs. 50,000/- each, towards special diet and conveyance respectively.
ATTENDANT CHARGES
58. The petitioner had sought compensation, on account of attendant charges. He has however, not specified the exact amount of money, spent by him towards attendant charges. The petitioner has further failed to place on record any receipt, as to any payment being made by him, to any agency, from which, he had hired any attendant or any document, to show credit of any amount to any attendant or agency. He had also failed to examine any attendant, allegedly hired by him, during the said period. However, taking into consideration the fact that the petitioner has duly proved that as a result of the accident, he has sustained grievous injuries, with 50% permanent disability, because of left side hemiparesis, which involves difficulty to the petitioner, from moving from one place to another and as his treatment cum recuperation period has already been assessed to be about 90 months, therefore, this Tribunal is of the opinion that the petitioner must have felt compelled to avail services of a medical attendant or a family member, as an attendant for self care activities, such as, bathing, Page 50 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 51 of71 dressing up, using the rest room, etc., during his treatment cum recuperation period of 90 months. Accordingly, this Tribunal deems it appropriate to award a lump sum amount of Rs.1,00,000/-, as compensation to the petitioner, under this head, towards attendant charges.
COMPENSATION DUE TO PERMANENT DISABILITY/ LOSS OF FUTURE EARNING CAPACITY DUE TO DISABILITY
59. The petitioner has claimed compensation on account of loss of income, due to the permanent disability sustained by the petitioner, in the case accident.
60. Perusal of the court record reveals that as per disability certificate bearing No. 307, dated 20.05.2013 as already Ex.PW1/8, as per which, the petitioner had sustained 50% permanent disability, because of left side hemiparesis.
61. The Hon'ble Delhi High Court in its order passed in case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors, FAO 842/2003, date of order 09.03.2018 has inter alia held that same percentage of permanent disability may have different impact upon earning capacity of different individuals based upon the nature of their work. Relevant extract of observations made in para no.6.4 and 6.5 of the judgment passed by Hon'ble High Court of Delhi in the above named case is reproduced hereinbelow:
"6.4 The same permanent disability may result in different Page 51 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 52 of71 percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, education and other factors. 6.5. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps:
(i) The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life).
(ii) The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age.
(iii) The third step is to find out whether :
a) The claimant is totally disabled, earning any kind of livelihood, or
b) Whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or
c) Whether he was prevented all restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."
62. In the light of above cited observations made by Hon'ble High Court of Delhi, in the decided case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors (supra), it can be safely concluded that same percentage of permanent disability can have different impact on functional capacity and earning potential of an individual depending upon the nature of his job. Therefore, the functional disability has to be ascertained, taking into consideration its impact on the work of the claimant.
63. In the present matter, the petitioner/PW1 deposed that prior Page 52 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 53 of71 to the accident, he was doing his business as commission agent of cotton, at Shop No. 28, Anaj Mandi, Bahadurgarh and was earning Rs. 50,000/- per month and due to the disability, his business has been completely ruined. Though, along with DAR, the IO has placed on record, copy of license allegedly granted to the petitioner's firm, for sale and purchase of agriculture produce, which was initially issued on 22.08.2007 and renewed upto 31.03.2016 however, the petitioner failed to produce original of the same and has also not placed reliance on the same, in his evidence. Further, he has not been able to prove his income of Rs. 50,000/- per month, at the time of case accident by placing on record any document. The petitioner had further placed on record, copy of pronotes to prove the factum that he had borrowed money on interest from various persons however, the petitioner failed to prove the same, by summoning the persons, from whom, he borrowed the said amount. Therefore, the license as well as receipts of pronotes, cannot be taken into consideration, for assessment of his income.
64. The petitioner has however proved on record by the evidence of PW7, i.e Chairperson Disability Board that the petitioner had sustained 50% permanent disability, because of left side hemiparesis. During the course of her evidence, PW7 further deposed that hemiparesis means partial loss of power of left side of body of the patient. She further deposed that work which would involve moving from one Page 53 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 54 of71 place to another, can now be done by the petitioner, only with a great difficulty.
65. In his evidence, PW1/petitioner deposed that prior to the accident, he was working as a commission agent of cotton but, he failed to substantiate the said deposition, by placing on record any document or by examining any witness, for whom, he was allegedly working for commission of cotton. Thus, the factum of petitioner working as a commission agent, cannot be said to be proved by the petitioner. But, even if the deposition of petitioner is accepted to be true on its face value, then also, it is for the petitioner to prove, the nature of his work, as to whether the said work involves moving from one place to another or can be performed by sitting in the office. As per deposition of PW7, with the disability, the petitioner would face great difficulty in moving from one place to another, however, taking into consideration the evidence led by the petitioner, it cannot be ascertained, whether his work involves moving from one place to another. Thus, on appreciation of evidence that has come on record, considering the affect of disability of the petitioner, on the functional capacity of the petitioner, to continue his previous work, this Tribunal deems it appropriate to assess the functional disability of the petitioner, qua his whole body and the effect of permanent disability on his actual earning capacity as 25%.
66. Perusal of the record reveals that the petitioner is a Page 54 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 55 of71 matriculate, from Board of School Education, Haryana, and by the said certificate, PW1 has also proved his date of birth as 08.08.1969. Further, as per Aadhar card of the petitioner, at the time of accident, the petitioner was residing at 19/527, Anaj Mandi, Bahadurgarh, Jhajjar, Haryana. Accordingly, the petitioner is entitled to minimum wages, payable to a matriculate in Haryana, as on the date of occurrence of the case accident. The minimum wages of a semi-skilled in State of Haryana was Rs.188.61 per day. Accordingly, it would be reasonable and just to consider the income of the petitioner, as Rs.5,658.3/- per month, on the date of occurrence of the case accident in question i.e. on 06.07.2011.
Addition of Future Prospects.
67. In respect of entitlement of the petitioner to addition of future prospects in his monthly income, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017, wherein, the Hon'ble Apex Court interalia held as under:-.
61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of Page 55 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 56 of71 actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30% , if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/-
respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied)
68. Reference is also made to the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 & Prem Chand vs Shamim Husain & Ors, MAC.APP. 1003/2017 decided on October 11,2018 by Hon'ble Delhi High Court.
Page 56 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 57 of71
69. The Hon'ble Delhi High Court in the case of Sanjay Oberoi (Supra), after referring to the judgment of the Constitution bench of Hon'ble Supreme Court of India, in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017 granted element of future prospects of increase in the income, in a case where the income of the petitioner was notionally assessed on the basis of minimum wages with functional disability @ 10%.
70. As per matriculation certificate of the petitioner, his date of birth is 08.08.1969 and the accident in question had occurred on 06.07.2011, therefore the age of the injured at the time of accident was 41 years, 10 months and 29 days. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the petitioner would be entitled to an addition of 25% of the established income, as he was above the age of 41 years, at the time of his accident. The monthly income of the petitioner is thus calculated as Rs. 5,658.3/- + 25% of 5,658.3/-, which comes to Rs.5,658.3/-+3,648.48/- = Rs.7,072.875/-.
71. The age of the petitioner at the time of accident was about 41 years 10 months and 29 days. In the said circumstances, the relevant multiplier has to be calculated as per the judgment passed by Hon'ble Supreme Court of India in the case of Sarla Verma vs Delhi Transport Corporation, 2009 ACJ 1298. As per the guidelines laid down in Sarla Verma Page 57 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 58 of71 case by Hon'ble Supreme Court of India, multiplier of 14 is to be applied for computing compensation payable to a victim of Road Traffic Accident aged between 41 to 45 years. The compensation is accordingly assessed towards loss of earning capacity at Rs. 2,97,060.75/- (rounded off to Rs.2,97,061/-) [(Rs.7,072.875/- per month x 12 months x 14 (age multiplier) x 25/100 (functional disability)].
Loss of Amenities of Life.
72. In the present matter, the petitioner has duly proved that as a result of the accident, he has sustained grievous injuries, with 50% permanent disability, because of left side hemiparesis and as his treatment cum recuperation period has already been assessed to be about 90 months accordingly, it can be safely concluded that the petitioner must have suffered loss of enjoyment of life and its amenities, due to permanent disability sustained by him, which is 50%, on account of having met with the case accident and therefore, this Tribunal deems it appropriate to grant a total sum of Rs. 1,00,000/-, as compensation to the petitioner, under the said head of loss of amenities of life.
Pain and Suffering
73. The petitioner has claimed compensation on account on account of trauma suffered by him, due to the injuries sustained in the case accident. In the present matter, the petitioner has duly proved, that as a result of the accident, Page 58 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 59 of71 he has sustained grievous injuries, with 50% permanent disability because of left side hemiparesis and as his treatment cum recuperation period has already been assessed to be about 90 months accordingly, this Tribunal is of the opinion that the petitioner must have suffered acute pain and mental agony, during his treatment and on account permanent disability suffered by him. Accordingly, a lump sum amount of Rs. 2,00,000/-, is granted in favour of the petitioner under the said head.
Loss of Income
74. Petitioner in his evidence by way of affidavit Ex. PW1/A, has deposed that prior to the accident, he was doing business as commission agent of cotton in Anaj Mandi, Bahadurgarh but, he has failed to prove either his income or occupation. Further, in paragraph No. 66, his monthly income is already assessed as Rs. 5,658.3/-and since the treatment-cum-recuperation period of the petitioner has already determined to be 90 months. Accordingly, a sum of Rs. 5,09,247/- (Rs.5,658.3/- x 90 months) is awarded in favour of the petitioner, as compensation under the head of loss of income.
75. Accordingly, the over all compensation which is to be awarded to the petitioner comes to Rs. 15,05,386/- which is tabulated as below Sl. No Compensation Award amount Page 59 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 60 of71
1. Pain and suffering Rs. 2,00,000/-
2 Special diet & Conveyance Rs. 1,00,000/-
3. Attendant Charges Rs. 1,00,000/-
4. Medical Expenses Rs. 1,99,078/-
5. Loss of income Rs.5,09,247/-
6. Loss of amenities of life Rs. 1,00,000/-
7. Loss of future earning capacity Rs. 2,97,061/-
Total Rs. 15,05,386/-
(Rupees Fifteen lacs Five thousand Three Hundred and Eighty Six only)
76. In respect of entitlement of the petitioner to interest on the awarded amount, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) of the back the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. Therefore, in the interest of justice, in the present case also, this court is of the opinion that the claimant/petitioner is entitled to interest @ 7.50% per annum, from the date of filing of DAR/petition i.e. w.e.f 06.09.2011, till realisation of the compensation amount.
77. The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
LIABILITY
78. In the case in hand, during the course of arguments, it was Page 60 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 61 of71 argued by Ld. Counsel for the insurance company/R3 that the offending vehicle was insured in the name of Gemini Equipments and Rentals Pvt. Ltd./R2, vide Contractor's Plant and Machinery Insurance Schedule, policy No. 5005/0005721/03, for the period 09.03.2011 to 08.03.2012 and as per clause no. (v) & (vi) of policy, the accident in question is excluded from the terms and conditions of the insurance policy, because as per terms and conditions of the insurance policy, any type of transport risk were excluded and road traffic act cover (or equivalent) for motor vehicle is also excluded.
79. It was argued by Ld. Counsel for R3, that since the accident has taken place by the offending vehicle, which was a truck and the insurance policy with R3, was only pertaining to the crane, under the head of plant and machinery, therefore, they are not liable to pay any compensation to the petitioner, in view of the exclusion clause. It was further argued that the offending truck was not insured with R3, at any point of time.
80. Per contra, it was argued by Ld. Counsel for the petitioner that the R3 cannot be permitted to raise the objection, as the accident in question has taken place, with the offending vehicle, which was a crane mounted on a truck and as per the insurance policy of the offending vehicle, the same was covering the third party liability. Therefore, it is contended that R3 is liable to pay entire compensation to the Page 61 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 62 of71 petitioner.
81. Perusal of the record reveals that though in the description of the insurance policy, it was mentioned that the same was Policy regarding Contractor's Plant and Machinery however, as per annexure-1, the description of insured vehicle was mentioned as CHOWGULE crane UR-V503, Engine No. XPE002624Y, Chassis No. XPR155923 and the said engine number and chassis number was pertaining to the truck. Thus, mentioning of the engine number and chassis number against the crane, itself shows that even at the time of issuance of the insurance policy, the crane was fixed with the truck, and it was meant to ply on the road, in the same manner. Thus, the crane fixed on the truck, comes within the category of motor vehicle as per the definition of Motor Vehicle Act. Therefore, R3 cannot be permitted to deny its liability, by taking recourse of clause (v) and (vi).
82. In view of the foregoing discussion, it can be safely concluded that at the time of accident, the offending vehicle was plying on the road, with a valid insurance policy. Since the offending vehicle was insured with R3, at the time of accident, therefore, R3 is liable to pay the entire compensation amount to the petitioner.
83. Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Page 62 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 63 of71 Ors., ICICI Lombard General Insurance co./R3 is directed to deposit the awarded amount of Rs. 15,05,386/- within 30 days from today within the jurisdiction of this Tribunal at State Bank of India, Rohini Courts Branch, Delhi along with interest at the rate of 7.5% per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioner and his advocates and to show or deposit the receipt of the acknowledgment with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with the name of the claimant mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
84. Statement of petitioner in terms of clause 29 of MCTAP was recorded on 15.11.2018 regarding his savings bank A/c with endorsement of MACT claims SB A/c, no loan, cheque book & ATM/debit card. I have heard the petitioner and learned counsel for the petitioner/claimant regarding the financial needs of the injured/petitioner and in view of the observations made by the Hon'ble Supreme Court of India in the judgment passed in the case of General Page 63 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 64 of71 Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered:-
85. Keeping in view the facts and circumstances of the case, and clause 32 of MCTAP, regarding protection of the award amount, it is hereby directed that on realization, an amount of Rs. 5,05,386/- be released to him in his MACT Claims SB A/c no. 92572200055077 with Syndicate Bank, Railway Road, Bahadurgarh, Haryana as per rules, that is, the branch near his place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in the form of FDRs of equal amount for a period of one month to 50 months respectively with cumulative interest without the facility of advance, loan and pre-mature withdrawal without the prior permission of the Tribunal.
86. The aforesaid award amount shall be disbursed to the claimant through the Motor Accidents Claims Tribunal Annuity Deposit (MACAD) Scheme formulated by Hon'ble Delhi High Court vide order dated 07.12.2018 in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003. However, till the time MACAD Scheme becomes fully operational and to ensure that the petitioner is not put to any undue inconvenience, the fixed deposits shall be subject to Page 64 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 65 of71 following conditions:-
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim, that is, the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
Page 65 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 66 of71
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
RELIEF
87. As discussed above, ICICI Lombard General Insurance Company Limited/R3 is directed to deposit the award amount of Rs. 15,05,386/- with interest @ 7.50% per annum from the date of filing of DAR/petition, that is, 06.09.2011 till realization within the jurisdiction of this Tribunal at SBI, Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioner and his advocate failing which the R3 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days.
88. R3 is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimants and complete details in respect of calculations of Page 66 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 67 of71 interest etc. in the court within 30 days from today.
89. A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
90. Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the granted time.
91. In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (022-22741336/9414048606) {other details-Personal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai-400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
92. A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders Page 67 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 68 of71 passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
93. In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the statement of petitioner was also recorded on 15.11.2018. The record would show that the relevant documents including copy of aadhar card, PAN card, copy of bank pass book and form 15G of the petitioner have already been supplied to the ld counsel for insurance co. on 15.11.2018 itself.
94. Form IVB which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules. Digitally signed by SHAMA SHAMA GUPTA Date:
GUPTA 2025.01.21 21:36:59 +0530 Announced in open court (SHAMA GUPTA) on 21st January, 2025 P.O. MACT N/W Rohini Courts, Delhi Page 68 of71 Ajay Kumar vs Roop Narain Mishra and Ors. Page 69 of71 FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident: 06.07.2011
2. Name of injured: Ajay Kumar Goyal
3. Age of the injured: About 41 years, 10 months and 29 days at the time of accident.
4. Occupation of the injured: Business as commission agent
5. Income of the injured: Rs. 5,658.3 per month.
6. Nature of injury: Grievous
7. Medical treatment taken by the injured: 90 months
8. Period of hospitalization: As per record.
9. Whether any permanent disability ? If yes, give details: Yes.
50% Permanent Physical Disability
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs.1,99,078/-
(ii) Expenditure on conveyance Rs.50,000/-
(iii) Expenditure on special diet Rs.50,000/-
(iv) Cost of nursing/attendant Rs.1,00,000/-
(v) Loss of earning capacity Rs.2,97,061/-
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Ajay Kumar vs Roop Narain Mishra and Ors. Page 70 of71
(vi) Loss of income Rs.5,09,247/-
(vii) Any other loss which may require N/A
any special treatment or aid to the
injured for the rest of his life
12. Non-Pecuniary Loss:
(I) Compensation for mental and N/A
physical shock
(ii) Pain and suffering Rs.2,00,000/-
(iii) Loss of amenities of life Rs.1,00,000/-
(iv) Disfiguration N/A
(v) Loss of marriage prospects N/A
(vi) Loss of earning, inconvenience, N/A
hardships, disappointment,
frustration, mental stress, dejectment and unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and 50% Permanent Physical nature of disability as permanent or Disability temporary
(ii) Loss of amenities or loss of N/A expectation of life span on account of disability
(iii) Percentage of loss of earning 25% capacity in relation of disability
(iv) Loss of future income - (Income X Rs.2,97,060.75/- (rounded % Earning capacity X Multiplier) off to Rs. 2,97,061/-) [(Rs.
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Ajay Kumar vs Roop Narain Mishra and Ors. Page 71 of71
7072.875/- per month x12
months x 14(age multiplier)
x 25/100 (functional
disability)].
(v) Future Medical Expenses N/A
14. TOTAL COMPENSATION Rs. 15,05,386/-
15. INTEREST AWARDED 7.50%
16. Interest amount up to the date of Rs. 10,20,839.88 (interest stopped w.e.f.
award 08.03.2018 to 08.07.2022 vide order dated 04.04.2019)
17. Total amount including interest Rs. 25,26,225.88 (rounded off to Rs. 25,26,226)
18. Award amount released Rs.5,05,386/-
19. Award amount kept in FDRs Rs. 20,20,840/-
20. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) clause 29 of MCTAP (Clause29)
21. Next date for compliance of the 20.02.2025 award. (Clause 31) Digitally signed by SHAMA SHAMA GUPTA Date: GUPTA 2025.01.21 21:37:08 +0530 Announced in open court (SHAMA GUPTA) on 21st January, 2025 P.O. MACT N/W Rohini Courts, Delhi Page 71 of71