Delhi District Court
Abhishek Ghavri Son Of Dr.Gyan Singh vs Gyan Prakash Son Of Nankoo on 5 November, 2012
IN THE COURT OF MS. NIRJA BHATIA :
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL :
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
Suit No.165/2010
Injury Case
Abhishek Ghavri Son of Dr.Gyan Singh,
Resident of :
i) House No.100, LIG Flats, Sarita Vihar, New Delhi-110076.
ii) L-368, Sarita Vihar, New Delhi.
Petitioner
Versus
1 Gyan Prakash Son of Nankoo, (driver)
Resident of :
i) Village Nagariya Mau, PS Sangram Garh,
District Pratap Garh, UP.
ii) B-A-71, Mangol Puri Indl. Area, Phase-II, New Delhi-34.
2 M/s.Sharma Trailor Transport Co. (owner)
Shri Jagdish Chander S/o Bhagwan Das,
1285/86, Sector-6, Bahadur Garh, Distt.Jhajjar, Haryana.
3 ICICI Lombard General Insurance Company Limited,
Space No.315, 3rd Floor, Aggarwal City Mall,
Road No.44, Pitampura, New Delhi.
Respondents
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Date of institution: 01.07.2010
Date of reserving judgment/order: 05.11.2012
Date of pronouncement: 05.11.2012
Suit No.165/2010 (Abhishek Ghavri Versus Gyan Prakash etc. .) Page 1 of 10
AWARD
This judgment cum award shall decide the present petition filed under Section 166 read with Section 140 MV Act, 1988 as amended up to date (hereinafter referred as Act), for grant of compensation in an injury case. 2 The brief facts necessary for decision are that the petitioner, Abhishek Ghavri met with road traffic accident on 12.5.2010 at about 3.00 AM while returning to his house from New Friends Colony in his I-10 car, bearing registration No.DL 3C AL-8664. When he reached opposite CRRI main gate Ashram, a truck trolla, bearing registration No.HR 47 5700 allegedly being driven in rash and negligent manner, suddenly came in front of him and applied the brakes as a result of which his car collided against the rear side of the truck trolla and he suffered grievous injuries. He was removed to Apollo Hospital where his MLC was drawn.
3 The petitioner states that he was employed as Accounts Executive with Dentsu Communication Pvt.Ltd., 8, Vittal Mallya Road, Bangalore and was commanding an income of Rs.17,957/- per month, however, due to the injuries, he suffered extensive loss as he remained bed- ridden for about six months. Besides, an amount of Rs.30,000/- on diet and an amount of Rs.20,000/- towards conveyance have been prayed. He has also prayed for compensation towards loss of income for six months.The petitioner claimed to have undergone innumerable pain qua which the claim of Rs.50,000/- asked for. In lump-sum, in the claim petition, total amount of Rs. 10 lac along with interest have been prayed.
4 Initially, the matter was filed on DAR by the IO. The appearance of the parties was received. The respondents, driver/owner stopped causing appearance and were proceeded ex-parte. The insurance company initially refused to make the offer claiming violation of permit conditions, however, Suit No.165/2010 (Abhishek Ghavri Versus Gyan Prakash etc. .) Page 2 of 10 during the pendency of the proceedings, it was stated that the permit was in order. On being asked to make the offer, the insurance company took a new plea that the accident occurred due to the contributory negligence and an application under Order VI Rule 17 CPC was moved, which was allowed. The WS was taken on record. No amendment and/or modification in the issues were asked for.
5 The issues were framed vide order dated 19.7.2011 to the following extent :
1 Whether the petitioner received grievous injuries in the accident which took place at about 3.00 AM in the night of 12.5.2010 involving Traula bearing registration No.HR 47 5700 due to rash and negligent driving of R-1, owned by R-2 and insured with R-3? OPP 2 To what amount of compensation, the petitioner is entitled to claim and from whom? 3 Relief.
6 The petitioner, Abhishek Ghavri tendered his examination affidavit and was subjected to cross-examination by the counsel for the insurance company whereafter the PE was closed. The insurance company produced no witness and the RE was closed vide separate statement. Arguments have been addressed by the learned counsels for the parties. I have heard the same and have gone through the record of the case. My findings on the issues are as follows :
ISSUE NO.1 : NEGLIGENCE
7 Since, the DAR is instituted consequent to the guidelines issued by Hon'ble High Court in case titled, Rajesh Tyagi Versus Jaivir, FAO No. 842/2003, it was to be treated as one filed under Section 166 MV Act. The Suit No.165/2010 (Abhishek Ghavri Versus Gyan Prakash etc. .) Page 3 of 10 petitioner accordingly was under the obligation to establish on record the factum of negligence on the part of erring driver, Gyan Prakash, in plying the offending truck trolla, bearing registration No.HR 47 5700, rashly and negligently. The FIR in the present case was registered on the basis of information received on telephone by the duty officer in the police station regarding the accident whereupon the IO along with Const.Rakesh reached the spot for investigation and came to know that the injured had been removed to Apollo Hospital for treatment.
8 The facts leading to the accident have later on been disclosed by the petitioner while making statement under Section 161 Cr.PC before the police and at the time of tendering his examination affidavit, disclosing that after meeting his friend at New Friends Colony when he was coming back to his house while plying his I-10 car, bearing registration No.DL 3C AL-8664 and was followed by his friend in his own car. It is stated by the petitioner that when he reached opposite the gate of CRRI at Mathura Road, he found one truck trolla standing in between the road without giving any parking light or indicator. The petitioner states that as it was night time and the truck trolla was standing in between the road, he tried his best in order to save the colliding of his car with the offending truck, but in vain and his car rammed in the truck from the rear side whereafter the erring driver tried to flee from the spot. Since, the car of the petitioner rammed into the offending truck, the erring driver could not succeed in his motive whereafter his friend got stopped the offending truck and removed him to the hospital. The medical documents of Apollo Hospital produced on record by the petitioner are commensurating to the facts stated and show the nature of injury suffered by him on account of trauma caused by the accident.
Suit No.165/2010 (Abhishek Ghavri Versus Gyan Prakash etc. .) Page 4 of 109 It be observed that though the driver/owner though have caused appearance but have chosen not to file the replies denying the allegations made against the erring driver by the petitioner. They have also opted not to lead their own version. Though, the petitioner was cross-examined by the counsel for the insurance company, but nothing adverse came out to dis- credit his statement on the version given by him as mere suggestions have been put to him to establish his negligence in plying his car, which suggestions have categorically been denied by the petitioner. Therefore, I find no reason to disbelieve his testimony. In the circumstances above, the allegations levelled by the petitioner against the erring driver for his rash driving and causing the accident against him, remained unrebutted. 10 Further, the IO during the investigation, prepared the site plan, seized both the vehicles involved in the accident, got conducted their mechanical inspections, reflecting the involvement of the offending vehicle in the accident. The erring driver was arrested and the documents pertaining to the offending vehicle and the DL of the erring driver, were seized. It be observed that the IO being a neutral and a public person, is expected to conduct investigation fairly which fact is not challenged by the driver/owner as there is no allegations of biasness levelled against the IO by the erring driver, in conducting the investigation. In view of the circumstances above, as all the material placed during evidence of the petitioner, corroborates his version, sufficient material has been placed on record to prove the factum of negligence on the part of driver, Gyan Prakash, in plying the offending truck trolla, rashly and negligently and in causing the accident against the petitioner.
11 Even otherwise, it is pertinent to observe that the degree of proof required for proving the negligence on the part of the driver in the Suit No.165/2010 (Abhishek Ghavri Versus Gyan Prakash etc. .) Page 5 of 10 present proceedings, is not as vigorous as is required in proving the guilt of the accused in criminal trial. The intent of the present legislation is benevolent and the entire purpose of the legislation is likely to be defeated if in each case the petitioner is asked to prove beyond reasonable doubt the involvement and negligence on the part of the driver. In reaching to the above opinion, I am guided by the judgment of Kaushnuma Begum and others Versus New India Assurance Limited, 2001 ACJ 421 SC as well as the case reported as National Insurance Company Limited Versus Pushpa Rana, 2009 ACJ 289, wherein it is held that mere involvement of a vehicle is sufficient to establish and hold the claim petition to be maintainable. It is held that even the certified copy of charge-sheet may not be asked for if the petitioner is able to satisfy on record the involvement of the offending vehicle through the copy of FIR and the mechanical inspection report. The issue hence, is decided in favour of the petitioner and against the respondents. ISSUE NO.2: COMPENSATION :
MEDICAL BILLS
12 The petitioner has placed on record the original medical bills, exhibited as Ex.PW1/7 collectively, amounting to Rs.2,79,631/- in respect of the medicines purchased by him and other expenses incurred towards the hospital, due to the injuries suffered by him in the accident. Accordingly, the amount of the same, i.e., Rs.2,79,631/- hence, is awarded in favour of the petitioner towards treatment expenses.
PAIN & SUFFERINGS 13 The petitioner has suffered very grievous injuries. He was brought to the hospital by his friends subsequent to RTA at about 2.45 AM. The discharge summary, Ex.PW1/2 recorded by Dr.Sudhir Kumar Tyagi, Neuro Surgeon, shows that on his admission, the investigation of NCCT Head Suit No.165/2010 (Abhishek Ghavri Versus Gyan Prakash etc. .) Page 6 of 10 and Maxillo-facial reveals communited fractures involving maxillo-facial regions with fracture of left side frontal bone and mandible. He also underwent haemorrhagic contusion bilateral basifrontal region with subarachnoid haemorrhage and pneumocrania. During his stay in the hospital, he was intubated for a day in ICU and managed for head injury. Thereafter, the repair for maxillo-facial fracture and mandibular fracture as well as scalp laceration was received. He underwent open reduction and fixation of mandible and arch wiring was done on him. The accident also impacted his eyes and it was noted that he underwent oedema and subconjunctival haemorrhage. After a period of about nine days, he was discharged. It is also pertinent to observe that he was brought to the hospital in altered sensorium tough he had no history of seizure, but had history of bleeding from nose. 14 Though there is no yard-stick to assess the pain and suffering undergone by the petitioner, however, in view of severeness of the trauma which has undergone by the petitioner and with intention to mitigate the sufferings of the petitioner, an amount of Rs.50,000/- is awarded towards pain & sufferings. (Reliance is placed on Raj Kumar Versus Ajay Kumar, decided on 18.10.2010 in Civil Appeal No.8981/2010 and R.D.Hattangadi Versus Pest Control (India) (P) Ltd., (1995) 1 SCC 551). DIET & CONVEYANCE 15 Though, the petitioner has not filed on record any material to show the actual amount spent on account of diet, but has claimed in the examination affidavit that he incurred expenses of Rs.30,000/- on special diet and more than Rs.20,000/- on conveyance, yet considering the fact that the petitioner suffered communited fractures involving maxillo-facial regions with fracture of left side frontal bone and mandible and remained under long drawn treatment as stated above, an amount of Rs.15,000/- hence, is awarded in Suit No.165/2010 (Abhishek Ghavri Versus Gyan Prakash etc. .) Page 7 of 10 favour of the petitioner towards special diet as he was prescribed liquid diet. Besides, considering the nature of injuries suffered by him in the accident, an amount of Rs.15,000/- hence is awarded in his favour, as he would have required some visits to the hospitals for his recuperation from the injuries as he would have been rendered immobile for which he would have needed special arrangements for his regular follow-ups from the concerned doctor. ATTENDANT'S CHARGES 16 As has been observed in foregoing paragraphs, the petitioner has not been able to manage his regular movements due to suffering from communited fractures involving maxillo-facial regions with fracture of left side frontal bone and mandible as stated above, his routine work must have been affected and would have needed the attendant. Hence, the attendant charges for six months @ Rs.3,000/-, amounting to Rs.18,000/- are awarded in favour of the petitioner.
LOSS OF INCOME 17 The petitioner has claimed that at the time of accident, he was employed as Accounts Executive with Dentsu Communication Pvt.Ltd., Bangalore and was commanding income of Rs.17,957/- per month. The petitioner has filed on record the appointment letter, collectively Ex.PW1/4 besides the salary slip, Ex.PW1/4A reflecting his income @ Rs.16,997/- after deduction of PF. From the aforesaid amount, further deduction of Rs.800/- towards conveyance is to be made. Thus, the total salary of the petitioner is taken as Rs.16,197/-, for the purpose of calculating the loss of income. 18 Keeping in view the medical record produced on record by the petitioner and the injuries suffered by him, loss of income for six months are awarded to the petitioner.
Suit No.165/2010 (Abhishek Ghavri Versus Gyan Prakash etc. .) Page 8 of 1019 Accordingly, the petitioner is awarded an amount of Rs.97,182/- (16,197 X 6 months) towards loss of income.
The total compensation is assessed as under :-
Treatment Expenses Rs.2,79,631/-
Pain & Sufferings Rs. 50,000/-
Diet &Conveyance Rs. 30,000/-
Attendant's Charges Rs. 18,000/-
Loss of Income Rs. 97,182/-
Total Rs.4,74,813/-
Hence, the petitioner is awarded a total amount of Rs.
4,74,813/-.
RELIEF 20 I hereby award amount of Rs.4,74,813/- in favour of the petitioner as compensation with interest @ 9% per annum from the date of filing of the present petition, i.e., 1.7.2010 till the date of realisation of the amount, in favour of the petitioners and against the respondents. 21 The driver, R-1, is the principal tort feasor whereas R-2 and R-3 being the owner and the insurer, are the joint tort feasors, and are jointly and vicariously liable to pay the award amount to the petitioner.
22 The insurance company has initially refused to make the offer claiming the permit violation, however, was later on confirmed to be in order. At that stage, the counsel for the insurance company was asked to make the offer, however, a new plea was raised and it was stated that the petitioner has contributed to the accident. The amendment was allowed and the new plea was taken on record, however, thereafter the insurance company made no offer to get the above defence prosed. No witness was summoned in pursuance of the RE. Even the IO who investigated the matter and filed the charge-sheet against the driver of the truck trolla, was not called to explain Suit No.165/2010 (Abhishek Ghavri Versus Gyan Prakash etc. .) Page 9 of 10 the site plan which was initially claimed to be the material document for moving application of contributory negligence. The circumstances above reflects that the insurance company has not proved the plea of defence though it is raised in the WS. In the circumstances, the plea of the insurance company is to be declined and it is directed to make the payment of the award amount to the petitioner.
23 In view of the above discussion, the insurance company is directed to discharge the liability of the award amount within a period of 30 days from today along with interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay. 24 The award amount shall be deposited in the account of petitioner, Abhishek Ghavri, with State Bank of India and shall be released whereafter to the petitioner. The petitioner is directed to get his account opened through the Nodal Officer, Shri H.S.Rawat (Mobile No.09717044322), after receiving the copy of the award. The copy of the award shall be given to the parties. It is directed that the insurance company shall make an endorsement of the title of the case, suit number, name of the parties and other relevant details while depositing the cheque in the bank. The compliance be made by all concerned.
25 Copy of the order shall be kept for receiving the compliance. File be consigned to the record room after completion of necessary formalities.
Announced in open Court ( NIRJA BHATIA )
Dated : 5.11.2012 PO : MACT-02, (SE)
Saket Courts, New Delhi
Suit No.165/2010 (Abhishek Ghavri Versus Gyan Prakash etc. .) Page 10 of 10