Delhi District Court
Suit No.: 312/2016 Preetam Bagga @ Pintu vs Sharma Trading Co. & Ors. 1 Of 15 on 9 August, 2018
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
Suit No. 312/16
Unique Case I.D. No.: MACT/24492/2013
Preetam Bagga @ Pintu
S/o Sh. Ram Lal Bagga
R/o H. No. X-1381, Gali No. 4,
Rajgarh Colony, Delhi-110031
..... Injured
VERSUS
1. Sharma Trading Corporation
R/o Opposite Bal Bhawan, OBC Bank,
Kharkhoda Road, Sampla, Distt. Rohtak,
Haryana
..... Owner
2. TATA AIG General Insurance Co. Ltd.
1st Floor, Lotus Towers, Community Centre,
New Friends Colony, New Delhi-110025
..... Insurer
3. Gian Singh
S/o Sh. Chanal Singh
C/o Opposite Bal Bhawan, OBC Bank,
Kharkhoda Road, Sampla, Distt. Rohtak,
Haryana
Permanent Add:
Kunj Nagar, PS Chanoli,
Distt. Narain, Anchal Chintog,
Nepal
.... Driver
..... Respondents
Date of Institution : 07.08.2013
Date of Reserving : 25.07.2018
Date of Judgment : 09.08.2018
JUDGMENT
Suit No.: 312/2016 Preetam Bagga @ Pintu vs Sharma Trading Co. & Ors. 1 of 15 PLEADINGS:
1. Mr. Preetam Bagga @ Pintu (the petitioner) suffered 'fracture tibia right, dislocation hip right, fracture 1 st, 2nd, 3rd and 4th metatarsal right' and consequent, permanent physical disability to the extent of 48% in relation to right lower limb in a motor vehicular accident that occurred at about 8.00 a.m. on 23.09.2012 near Assaudha Chowki, Opp. H.P. Petrol Pump, Rakba Gaon, Bahadurgarh, Haryana, while he alongwith his associates was traveling in Maruti Van No. DL 9 CE 0566 (the car), when light goods vehicle described as Eicher Canter bearing registration No. HR-46C-6975 (the canter) allegedly driven in a rash and negligent manner by the respondent No. 3 had hit the car. The said accident was the subject matter of investigation vide FIR No. 364/12 under section 279/337/304-A of the Indian Penal Code, 1860 (IPC) registered at PS Sadar, Bahadurgarh, Distt. Jhajjar, Haryana. The petitioner instituted an accident claim case under section 166 of the Motor Vehicles Act, 1988 (MV Act) for seeking compensation impleading, inter alia, the registered owner and driver of the canter as the respondent No. 1 and 3. The respondent No. 2 is the insurer of the canter.
2. The respondent No. 1 and 3, in their joint written statement, denied the accident and involvement of the canter in the accident. They contended that the respondent No. 3 was driving the canter on its side and the car in the process of overtaking another vehicle came in front of the said vehicle and met with an accident.
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3. The respondent No. 2 / insurer, in its written statement, conceded that the canter was insured with it in the name of the respondent No. 1. It pleaded breach of terms and conditions of the insurance policy on the ground that the respondent No. 3 was not holding a valid and effective driving license to drive the canter.
ISSUES:
4. On the pleadings, following issues were framed:
(i) Whether the petitioner has suffered injuries in road side accident on 23.09.2012 involving vehicle i.e. EICHER CANTER bearing registration No. HR-46C-6975 being driven allegedly in a rash and negligent manner by the respondent No. 1?
(ii) To what amount of compensation, if any, the petitioner is entitled to and from whom?
(iii) Relief.
PETITIONER'S EVIDENCE
5. PW-1 Dr. Rajnand Kumar, Sr. Resident (Orthopedics), GTB Hospital, Delhi proved disability certificate Ex.PW1/A.
6. PW-2 Abhishek Sharma, Marketing Manager, Kosmos Superspeciality Hospital, Anand Vihar, Delhi proved discharge summary with clinical notes Ex.PW2/A, operation notes Ex.PW2/B and medical bills Ex.PW2/C.
7. The petitioner appeared as PW-3. He filed evidence by way of affidavit Ex.PW3/A. He relied on driving license Ex.PW3/1, voter I-card Ex.PW3/2, photograph of injury Ex.PW3/3, discharge slip of Kosmos Superspeciality Hospital Ex.PW3/4, treatment record Ex.PW3/5, physiotherapy and medicine bills of Rs. 37,916/- Ex.PW3/6.
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8. The petitioner relied on academic certificates Ex.PW3/8, I-card issued by Lal Quarter, Traders Association Ex.PW3/9, mark-sheet issued by Prayag Sangeet Samiti Ex.PW3/10, disability certificate already Ex.PW1/A, medical bills of Kosmos Hospital of Rs. 1,45,850/- already Ex.PW2/C and copy of FIR Mark 'X'.
RESPONDENT'S EVIDENCE:
9. R2W1 Ankit Tripathi, Manager (legal), TATA AIG GIC Ltd. filed affidavit Ex. R2W1/1 in evidence. He relied on notice under Order 12 Rule 8 CPC Ex.R2W1/A issued to the registered owner and the driver, postal receipt Ex.R2W1/B, copy of insurance policy Ex.R2W1/C, copy of the judgment dated 12.04.2017 in the case titled as 'Laxmi & Ors. versus Sharma Trading Company & Ors.' by MACT, Pilot Court, KKD Courts, Delhi Ex.R2W1/D and copy of evidence in the said case Ex.R2W1/E. FINAL ARGUMENTS:
10. I have heard arguments of Sh. G.S. Bisht, Advocate for the petitioner and Sh. V.K. Gupta, Advocate for the respondent No. 2 / insurer and perused the evidence, oral and documentary, on the file of the tribunal.
ISSUE NO. 1:
11. In an action instituted on the principle of fault liability under section 166 of MV Act, proof of rash and negligent driving of the offending vehicle is sine qua non. In a claim under tort liability, the standard of proof is not akin to a criminal case. The petitioner is not obliged to adduce evidence to prove negligence of the driver of the offending vehicle beyond reasonable doubts.
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12. The petitioner appeared as PW-3. He deposed, on the strength of affidavit Ex.PW3/A, the sequence of events leading to the occurrence. He deposed that on 23.09.2012 at about 8.00 a.m., he alongwith his associates was returning from Jind, Haryana to Delhi in Maruti Van bearing registration No. DL 9 CE 0566 after performing jagran. He deposed that Ashok was driving the Maruti Van in slow speed. He categorically deposed that when the Maruti Van reached near Assaudha Chowki on NH-10, Opp. H.P. Petrol Pump, Rakba Gaon, PS Sadar, Bahadurgarh, Haryana, an Eicher Canter bearing registration No. HR-46C-6975 came from opposite direction and hit the Maruti Van with considerable force and dragged it. He categorically deposed that the canter was moving on the wrong side of the road. The respondent No. 1 and 3, in their joint written statement, denied the involvement of the canter in the accident. They attributed accident of the Maruti Van with an unknown vehicle. However, the respondent No. 1 and 3 have not challenged the evidence of the petitioner. The respondent No. 2 / insurer cross-examined the petitioner. However, it has not elicited anything from his cross-examination which can render him not worthy of credit. Evidence of the petitioner finds corroboration from the criminal case record. The criminal case was registered at 10.30 a.m. on 23.09.2012 within 2 ½ hours from the time of the accident. The manner of the accident and the involvement of the canter are detailed in the statement contained in the FIR. The respondent No. 3 has not explained as to why he could not avoid the collision. The respondent No. 2 has also not examined him to prove the contrary.
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13. From the evidence of the petitioner duly corroborated by the criminal case record, it is proved that the respondent No. 3 was driving the canter on the wrong side of the road and while driving so, it had caused the accident with the Maruti Van which was moving on its correct direction. The accident was caused due to rash and negligent driving of the canter.
14. According to treatment record Ex.PW2/A, the petitioner suffered multiple fracture in his right leg and eventually, he was assessed to have suffered permanent physical disability to the extent of 48% in relation to right lower limb vide disability certificate Ex.PW1/A.
15. It is, therefore, proved that the petitioner suffered grievous injury and consequent, permanent physical disability in a motor vehicular accident caused by rash and negligent driving of the canter by the respondent No. 3.
16. Accordingly, issue No. 1 is decided in favour of the petitioner and against the respondents.
ISSUE NO. 2:
17. The petitioner suffered grievous injury and consequent, permanent disablement in the accident arising out of rash and negligent driving of the canter by the respondent No. 3. He is entitled to just and reasonable compensation. PAIN AND SUFFERING:
18. According to treatment record Ex.PW2/A, the petitioner was diagnosed to have suffered 'fracture proximal tibia right, dislocation hip right, fracture 1 st, 2nd, 3rd and 4th metatarsal right'. He received treatment as an indoor patient in Kosmos Hospital, Vikas Marg from 23.09.2012 to 29.09.2012.
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19. The petitioner underwent open reduction internal fixation (ORIF) and k-wire was implanted for fixation of fracture dislocation 1st and 2nd metatarsal. Plate and screws were implanted for fixation of fracture tibial condyle. Eventually, the petitioner was assessed to have suffered permanent physical disability to the extent of 48% in relation to right lower limb.
20. In view of the nature of injuries, number of multiple fractures, surgical procedures and period of treatment, the petitioner is awarded an amount of Rs. 1,00,000/- under the head of 'pain and suffering'.
LOSS OF AMENITIES:
21. The petitioner was assessed to have suffered 48% permanent disability in relation to right lower limb by the medical board constituted at GTB Hospital, Delhi vide disability certificate Ex.PW1/A. The petitioner was examined by the tribunal. The petitioner is not able to place his complete right foot on the ground. He has slight deformity at knee of right foot. The petitioner has deposed, in his affidavit Ex.PW3/A, that he cannot run or walk swiftly. The physical disability suffered by the petitioner is permanent and it is likely to affect his quality of life and enjoyment of ordinary comforts of life. Accordingly, he is awarded an amount of Rs. 50,000/-, as claimed in the computation by the petitioner, towards 'loss of amenities'. MEDICAL EXPENSES:
22. PW-2 Abhishek Sharma, Marketing Manager, Kosmos Superspeciality Hospital, Anand Vihar, Delhi proved medical expenses in the sum of Rs. 1,45,850/- vide medical bill Ex.PW2/C. Suit No.: 312/2016 Preetam Bagga @ Pintu vs Sharma Trading Co. & Ors. 7 of 15
23. The petitioner proved physiotherapy and medical bills in the sum of Rs. 37,916/- vide medical bills Ex.PW3/6. It may be noted that the bills of Kosmos Hospital are excluded as they are already included in the medical bills Ex.PW2/C. Accordingly, he is awarded an amount of Rs. 1,83,766/- (rounded of) Rs. 1,85,000/- under the head of 'medical expenses'. LOSS OF INCOME:
24. The petitioner, in his petition or affidavit Ex.PW3/A, has not stated the period during which he could not work for gain or involve in any gainful employment. According to treatment record Ex.PW2/A, the petitioner was under active treatment till 29.09.2012. He visited Kosmos Superspeciality Hospital till 25.12.2012. In view of the nature of the injuries and consequent disablement, he deserves to be awarded loss of income for six months.
25. The case of the petitioner is that he is a graduate entrepreneur and running a footwear shop in the name and style of M/s Anant Footwear at B-1/2, Krishna Nagar, Main Market, Delhi and also doing the business of renting and installation of DJ's heavy music and public address system and marriages, functions concerts, Jagran etc. He pleaded that he was earning Rs. 18,000/- to Rs. 20,000/- per month from footwear shop and Rs. 8,000 to Rs. 10,000/- per month from music and public address systems. The petitioner has not led any evidence to prove that he was running a footwear shop in the name and style of M/s Anant Footwear at B-1/2, Krishna Nagar, Main Market, Delhi. He has not led any evidence to prove his income from the said business.
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26. The petitioner has not led any evidence that he was doing the business of renting and installation of DJ's heavy music and public address system and marriages, functions concerts, Jagran etc. He has not led any evidence that he was earning Rs. 8,000/- to Rs. 10,000/- per month from the said business.
27. In the absence of any evidence on the aspect of avocation and income of the petitioner, the Tribunal is constrained to assess his income on the benchmark of prevalent minimum wages as applicable in Delhi.
28. The petitioner has placed his academic certificates Ex.PW3/8 (colly). The petitioner did senior secondary. However, he could not pass B.A. examination. Therefore, his monthly income is notionally assessed on the benchmark of prevalent minimum wages as payable to matriculates i.e. Rs. 8,525/- per month in Delhi. Accordingly, he is awarded (8,525 x 6) Rs. 51,150/- (rounded of) Rs. 52,000/- under the head of 'loss of income for six months'.
LOSS OF FUTURE INCOME:
29. The petitioner was examined by the medical board constituted at GTB Hospital, Delhi. He was assessed to have suffered 48% permanent physical disability in relation to right lower limb. PW-1 Dr. Rajnand Kumar, Sr. Resident (Ortho) the member of the board proved disability certificate Ex.PW1/A. In his cross-examination, he stated that he cannot comment upon the physical disability in relation to whole body and the impact of the disability on the functional ability of the petitioner.
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30. The petitioner, in his affidavit Ex.PW3/A, has stated that he cannot run or walk swiftly. The petitioner, though claimed that he was doing the business of footwear shop and renting and installation of DJ's in functions and public rallies, has not led any evidence to prove his avocation. The functional disability is assessed on the basis of the impact of the medical disability on the capacity and efficiency of the claimant keeping in view his avocation and nature of duties. The medical disability suffered by the petitioner cannot be treated as functional disability.
31. The petitioner suffered 48% permanent disability in relation to right lower limb. He can walk. He can indulge in any avocation. He can do the business of footwear shop as it does not require swift walking and running. He can install music system in marriages and public functions. However, the permanent disability suffered by him would affect his capacity and efficiency to certain extent. Accordingly, functional disability of the petitioner is considered as 25%.
32. The age of the petitioner was 29 years at the time of the accident. His date of birth is mentioned as 07.04.1983 in driving license Ex.PW3/1 and matriculation certificate Ex.PW3/8. Therefore, multiplier of 17 as applicable to age group between 26 to 30 years would be attracted.
33. The petitioner is a self-employed person. He was below the age of 40 years. In view of judgment in National Insurance Company Ltd. vs Pranay Sethi and Ors., SLP (C) 25590/2014 decided on 31.10.2017, there shall be addition of income to the extent of 40%.
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34. Thus, the loss of future income due to disability is computed as [Rs. 8,525 x 140 / 100 x 25 / 100 x 12 x 17] Rs. 6,08,685 (rounded off) Rs. 6,09,000/-.
SPECIAL DIET AND CONVEYANCE:
35. The petitioner, in his affidavit Ex.PW3/A, has not claimed that he incurred any expense on special diet and conveyance. He has not led any evidence to prove that he was prescribed any special diet. He has not led any evidence that he purchased protein rich or nutritious diet. He has not led any evidence that he engaged any conveyance and incurred expenses thereon. In view of the nature of the injury and the visits made by him to the hospital, he is awarded Rs. 10,000/- each towards special diet and conveyance.
ATTENDANT CHARGES:
36. The petitioner, in his affidavit Ex.PW3/A, has not stated that he engaged any attendant or incurred any expense thereon. However, in his computation for compensation, he claimed an amount of Rs. 30,000/- towards attendant charges. In the absence of any evidence to prove that any attendant was engaged or any expense was incurred, the petitioner will not be entitled to attendant charges. (See: Daisy Kuriakose versus Sanjay Kumar & ors., MAC APP No. 513/2008 decided on 26.04.2016).
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37. The compensation awarded to the petitioner is computed, as under:
Sl. No Head of compensation Amount
1. Pain and suffering Rs. 1,00,000/-
2. Loss of amenities Rs. 50,000/-
3. Medical expenses Rs. 1,85,000/-
4. Loss of income for six months Rs. 52,000/-
5. Loss of future income Rs. 6,09,000/-
6. Special diet and conveyance Rs. 20,000/-
Total Rs. 10,16,000/-
LIABILITY:
38. The respondent No. 2 / insurer is seeking exoneration on the ground that the respondent No. 3 was not holding a valid driving license. It examined R2W1 Ankit Tripathi, Manager (legal) in support of its plea. He relied on driving license verification report Ex.R2W1/E that issuance of driving license on booklet was discontinued in the State and any driving license purported to have been issued by any authority in Nagaland on booklet form on 30.10.2009 is not genuine.
39. The respondent No. 3 is holding driving license bearing DL No. 10951/TV/Z/2011 issued by District Transport Officer, Nagaland on 11.03.2010 for the category of motorcycle and LMV having validity up to 28.07.2014. District Transport Officer, Zunheboto, Nagaland vide letter dated 18.01.2017 communicated that the said driving license was found in office record but has not been converted to smart card (Sarthi Application). It further stated that as per the notification of Transport Commissioner, Nagaland, any driving license other than smart card shall be treated as invalid. It further stated that the holder must immediately get it converted into smart card.
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40. It is therefore, proved that the said driving license was issued by the office of District Transport Officer, Zunheboto, Nagaland. It was a valid license. It would cease to have its validity if it is not converted into smart card. There is no evidence that District Transport Officer, Zunheboto, Nagaland communicated the notification dated 01.08.2014 to the respondent No. 3. Moreover, such notification cannot make a valid driving license invalid retrospectively. The tribunal does not find that the respondent No. 1 / insured has breached any term and condition of insurance policy. The respondent No. 2 / insurer is liable to pay compensation to the petitioner. INTEREST:
41. The petitioner has not prosecuted the case diligently. The petition was filed on 05.08.2013. It was adjourned for filing of requisite documents till 26.09.2014. Thereafter, the petitioner failed to take steps for issuance of notices of the petition to the respondents. On 22.12.2014, the petitioner impleaded the respondent No. 3 and taken steps for effecting service of the petition upon the respondents. Accordingly, the right of the petitioner to have interest will commence from 22.12.2014. It is seen that during the inquiry, the petitioner demonstrated negligence in the effective prosecution of the accident claim. However, keeping in view the fact that this is an accident claim case, the tribunal is not depriving him interest for the intervening period. For the sake of reference, the proceedings contained in the order-sheet dated 07.08.2015, 11.12.2015, 22.02.2016 and 26.04.2016 may be referred.
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42. The petitioner is awarded compensation in the sum of Rs. 10,16,000/- alongwith interest @ 9% per annum from 22.12.2014 till the date of award. The respondent No. 2 / insurer shall deposit the award amount with the tribunal within 30 days and otherwise, the award amount will carry interest @ 9% per annum from 22.12.2014 till realization.
MODE OF DISBURSAL:
43. Amount of Rs. 2,16,000, out of Rs. 10,16,000 alongwith accrued interest, will be released to the petitioner and balance amount of Rs. 8,00,000/- will be secured in the form of fixed deposit receipts for the period, as under:
Sl. No. Amount Period of FDR
1. Rs. 1,00,000/- 3 months
2. Rs. 1,00,000/- 6 months
3. Rs. 1,00,000/- 9 months
4. Rs. 1,00,000/- 12 months
5. Rs. 1,00,000/- 15 months
6. Rs. 1,00,000/- 18 months
7. Rs. 1,00,000/- 21 months
8. Rs. 1,00,000/- 24 months
44. Copy of award be supplied to the respondent No. 2 / insurer for compliance.
45. File be consigned to record room.
SANJAY Digitally signed by SANJAY SHARMA Location: East District, Karkardooma Courts, Delhi SHARMA Announced in the open Court Date: 2018.08.10 14:05:18 +0530 Sh. Sanjay Sharma Dated: 09th August, 2018 Presiding Officer MACT (East) Karkardooma Court, Delhi Suit No.: 312/2016 Preetam Bagga @ Pintu vs Sharma Trading Co. & Ors. 14 of 15 Suit No. 312/16 09.08.2018 Present : The petitioner in person.
None for R2 / Insurance Co.
Vide separate judgment, award is passed. To come up for compliance on 08.11.2018.
Sanjay Sharma PO MACT (East)/KKD Delhi/09.08.2018 Suit No.: 312/2016 Preetam Bagga @ Pintu vs Sharma Trading Co. & Ors. 15 of 15