Delhi District Court
Rakesh Sharma vs Sh. Puneet Singh on 5 April, 2008
1
IN THE COURT OF SH. J.P.S MALIK, PO-MACT,
PATIALA HOUSE COURTS, NEW DELHI.
PETITION NO.:- 379/05
DATE OF INSTITUTION:- 4.10.05
IN THE MATTER OF:-
Rakesh Sharma, s/o Sh. J.N. Sharma,
r/o 882/25, Chinioth Colony,
Rohtak (Haryana).
...Petitioner
Versus
1. Sh. Puneet Singh, s/o Sh. Harjeet Singh,
r/o 106, Udai Park opp. Niti Bagh,
New Delhi.
2. Sh. Harvinder Singh, s/o not known,
r/o 106, Udai Park opp. Niti Bagh,
New Delhi.
3. The National Insurance company Ltd.,
Bhikaji Cama Place, New Delhi.
...Respondents
Arguments heard on : 3.4.2008 Date of decision: 5.4.2008 AWARD This is a petition u/s 166/140 of M.V Act filed by the petitioner, Rakesh Sharma for compensation for the injuries received by him in an accident on 5.3.05, at about 1:30PM at IIT flyover, opposite Police colony, outer ring road, New Delhi.
2. The facts as per the claim petition filed are that on 5.3.05, 2 petitioner was travelling as a pillion rider on motorcycle no.DL-4S-AA-4435 which was being driven by one Mr. Gyan Prakash and they were returning from Greater Kailash side. Further, it is stated that at about 1:30PM, when they reached near IIT flyover, opposite Police Colony, outer ring road, they were hit by a car no.DL-9CA-6863 coming from the side of Munirka. It is alleged that car was being driven by R1 rashly and negligently at a very high speed. After the accident, petitioner was taken to AIIMS because of the injuries received by him in the accident. Petitioner was working as a draftsman with Delhi Jal Board and remained on leave for a period of three months. The car was owned by R2 and was insured with R3/ Insurance company.
3. Notice of the claim petition was issued to all three respondents. WS was filed on behalf of R3/ Insurance company. Both, R1 and R2 were served by registered post and when they failed to appear, the proceedings were directed to be taken ex parte against both of them, as per order dated 31.8.06.
4. In the light of pleadings of the parties, following issues were framed:
ISSUES:
1. Whether petition sustained injuries on 5.3.05 on account of rash and negligent driving of Honda City car no.DL-9CA-6863 on the part of R1-Puneet Singh?
2. To what amount of compensation the petitioner is entitled to and 3 from whom?
3. Relief.
5. In evidence of petitioner, three witnesses have been examined. PW-1, Ct. Uday has proved the FIR no.123/05, P.S. Hauz Khas,copy of which is Ex. PW1/1 registered in the case after the accident. Charge sheet was filed in the matter and it was deposed by PW-1 that R1 was convicted in the criminal proceedings vide order dated 17.8.05 and was fined Rs.500/-. PW-2, Sh. J.V.S.Giri, LDC, Delhi Jal Board has proved the salary certificate of the petitioner, Rakesh Sharma as Ex. PW2/1 and his leave record as Ex. PW2/2. As per the testimony of PW-2, petitioner remained on medical leave from 5.3.05 to 7.4.2005 and also availed 11 days earned leave from 11.4.05 to 21.4.05. The petitioner also filed his affidavit of evidence and was cross examined on behalf of R3/ Insurance company as PW-3. No witness was examined in evidence of R3/ Insurance company.
6. Arguments were heard on behalf of the petitioner as well as on behalf of R-3/insurance company and I hold as under:
7. ISSUE NO.1 R1 and R2 being the driver and owner of the offending vehicle have chosen to abstain from the proceedings despite service by registered post. Through his affidavit of evidence filed by the petitioner, petitioner Rakesh Sharma has deposed that on 5.3.05 he was travelling on motorcycle 4 no. DL-4S-AA-4435 as a pillion rider which was being driven by Mr. Gyan Prakash. The petitioner further deposed that motorcycle was being driven by Mr. Gyan Prakash at a slow speed and on the correct side of the road while they were coming from the side of Greater Kailash. Further, it is deposed that when they reached at IIT flyover, opposite Police Colony, outer ring road, they were hit by a car no.DL-9CA-6863 which was being driven by R1 at a fast speed. Petitioner further deposed that accident was caused due to rash and negligent driving of car no.DL-9CA-6863 by R1 and there is no challenge to the testimony of PW-3, Rakesh Sharma in the cross examination conducted on behalf of R3/ Insurance company which remains unchallenged and unrebutted. MLC, Ex. PW3/1 has been proved by the petitioner showing that he received injuries on his right elbow.
8. ISSUE NO.2 & 3
As regard the actual amount of compensation, the petitioner continued to receive treatment at AIIMS for about a month and as per certificate dated 7.4.05, was declared fit to resume his duties after having recovered from his illness. Submissions made on behalf of petitioner were that though he has been paid for the leave period by his employer but he is entitled to be compensated for the period of leave as he was working as a draftsman with Delhi Jal Board and was drawing salary of Rs.12,417/- per month and remained on medical leave from 5.3.05 to 7.4.05 and on earned leave from 11.4.05 to 21.4.05. Petitioner was declared fit to resume his duties 5 on 8.4.05, as per certificate, Ex. PW3/6 and the earned leave availed of by the petitioner from 11.4.05 to 21.4.05 are in no way related to the injuries received by the petitioner. On behalf of petitioner reliance was placed on the case decided by Hon'ble High Court of Madhya Pradesh reported as United India Insurance company Ltd. vs. Shyam Kumar and others, 2006 ACJ 2092 wherein it was held that injured is entitled to compensation for leave lost on the ground that he could not utilise the lost leave for some other purpose and further reliance was placed on another case decided by Hon'ble High Court of Madras reported as Revathi Rajasekaran and another vs. Vijayakumaran and another, 2002 ACJ 1925 wherein it was held that injured who has been paid leave salary by his employer is entitled for loss of leave for the leave period on the ground that leave accumulated is encashable. In the present case, petitioner has availed medical leave from 5.3.05 to 7.4.05 which is neither encashable nor would have been utilised for any other purpose by the petitioner except illness. The case law being relied upon on behalf of petitioner is not applicable to the facts of the present case and I accordingly hold that petitioner is not entitled to be compensated for the medical leave availed of by him from 5.3.05 to 7.4.05.
9. Petitioner was treated at AIIMS and no document has been placed on record by the petitioner except three bills of medicines having been purchased totalling for a sum of Rs.202/- and that amount is allowed to the petitioner.
6
10. Further, a composite compensation of Rs.10,000/- is allowed to the petitioner on all counts.
11. Accordingly, an award for a sum of Rs.10,202/- alongwith simple interest @ 9% per annum from the date of filing of the petition i.e 4.10.05 till realisation is passed in favour of the petitioner and against R1 and R2, who are jointly and severally liable to pay the compensation amount.
12. Since the offending vehicle was duly insured with R-3/National Insurance Company Ltd., R-3 is liable to indemnify R-2 for the claim of the petitioners and is directed to deposit the award amount within a period of one month from today.
Order dictated and announced (J.P. S.MALIK) in the open court on 5th April, 2008 Judge MACT/New Delhi