Delhi District Court
Sh.Tarsem Singh vs Mr. Harish Sood on 26 April, 2011
IN THE COURT OF MS. SWARANA KANTA SHARMA:
JUDGE : MACT : (CENTRALDISTRICT) : DELHI.
SUIT NO. 759/08
Unique Case ID No.02401C1468842008
1. Sh.Tarsem Singh,
S/o Sh. Foza Singh,
R/o C11C, New Flats,
Paschimpuri, New Delhi .......Petitioner
Versus
1. Mr. Harish Sood,
S/o Mr.Rishipal Sood,
R/o 4095/8, Chandigarh Road, Ludhiyana (Punjab)
2. The New India Assurance Co.Ltd.
5th Floor, TowerII, Jeevan Bharti Building,
124, Connaught Place, New Delhi
Tilak Nagar, New Delhi110018 .......(Insurer)
Suit No.759/08 Page 1/12
.......
RESPONDENTS
Date of Institution of the suit : 10.12.2008
Date of reserving judgment/order : 26.04.2011
Date of pronouncement : 26.04.2011
JUDGMENT
1. The present claim petition has been filed by the petitioner u/s.163A of Motor Vehicle Act 1988.
2. Brief facts giving rise to the present claim petition are that on 24.06.2008 at about 11:29 am petitioner was driving Tanker bearing registration no.HR37A2601 and had met with an accident and had sustained serious injuries.
3. On the pleadings of the parties, following issues were settled:
(i) Whether the petitioner had suffered grievous injuries in road traffic accident on 24.06.2008 due to rash and negligent driving of vehicle bearing no. HR37A 2601 by respondent no.1?
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(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
4. During the course of arguments, it was pointed out that issue no. 1 needed to be amended as in issue no. 1, it was mentioned that the the petitioner had suffered grievous injuries in road traffic accident on 24.06.2008 due to rash and negligent driving of vehicle bearing no. HR37A 2601 by respondent no.1 instead of mentioning that accident had taken place due to use and involvement of a motor vehicle since the claim has been filed under Section 163A of M.V.Act. In view of the submissions of Ld. Counsel for the petitioner, issue no. 1 was amended as under : "Whether the petitioner had suffered grievous injuries in road traffic accident on 24.06.2008 due to use and involvement of the vehicle bearing registration No. HR37 A 2601 by Respondent no.1?
5. During the course of proceedings, respondents no.1 was proceeded exparte vide order dated 14.09.2010.
6. Petitioner has examined two witnesses in support of his claim.
PW1 Dr. Navneet Rustogi. Junior Specialist, Orthopedics, Guru Gobind Singh Government Hospital has proved the disability Suit No.759/08 Page 3/12 certificate of petitioner as Ex.PW1/A. On being crossexamined by proxy counsel for respondent no.2, Insurance Company he stated that the disability suffered by the petitioner is qua the right lower limb and not qua the entire body.
7. PW2 Sh. Tarsem Singh, who is petitioner himself has tendered in evidence his examinationinchief by way of affidavit Ex.PW2/A wherein he has stated that on 24.06.2008 at about 11:29 am petitioner was driving Tanker bearing registration no.HR37A2601 and had met with an accident and had sustained serious injuries.
He further stated that he had sustained injuries i.e. closed Comminuted fracture Distal 3rd region Tibia with Segmental Fracture Fibula (right Side), closed Fracture Shaft of Femur Mid third region (right side), soft Tissue injury right lower limb, head injury, injuries on right shoulder, one tooth was broken and he had suffered other multiple injuries all over body. He was taken to Dayanand Medical College hospital, Ludhiyana, Punjab where he had remained admitted from 24.06.2008 and discharged on 05.07.2008. He stated that he remained an OPD patient for about 8 months and thereafter he had taken treatment from Swastik Fracture Clinic, Ekta Enclave, Peeragarhi, Delhi for about one year.
He has proved on record photocopy of driving licence in Form Suit No.759/08 Page 4/12 no.6 as Ex.PW2/1, photocopy of Voter Icard as Ex.PW2/2, medical treatment record and medical bills as Ex.PW2/3.
On being crossexamined by Sh.M.B. Aggarwal, counsel for respondent no.2, Insurance Company he stated that he has filed his entire medical treatment and expenditure record. He has filed his driving licence on record but he has not filed any proof regarding his working as driver or his earning. He has not filed on record proof regarding conveyance and special diet charges. He has filed his disability certificate on record. He denied the suggestion that the accident had taken place due to his own negligence.
8. Thereafter, petitioners' evidence was closed.
9. Counsel for petitioner has proved certified copies of criminal case record as Ex.PX.
10. Respondent no.2, Insurance Company did not examine any witness in support of their case and they have closed their evidence vide separate statement.
11. Final arguments were heard on behalf of Ld.Counsel for Petitioners as well as for the Respondent no.2. After hearing arguments and having gone through the record, I record my findings on issues settled as follows:
12.ISSUE NO.1:
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Whether the petitioner had suffered grievous injuries in road traffic accident on 24.06.2008 due to use and involvement of the vehicle bearing registration No. HR37A 2601 by Respondent no.1?
Since the claim petition has been filed u/s.163 A of Motor Vehicle Act, the petitioners were not to prove the negligence.
The petitioners have filed on certified copy of FIR as well as certified copies of the challan. Police investigation has concluded that the accident, in this case, has taken place due to use and involvement of vehicle bearing registration No. HR37A 2601 Therefore, the testimony of PW1 considered alongwith the other documents i.e. the charge sheet, FIR registered in this case, I am of the opinion that petitioner Tarsem Singh had sustained injuries due to use and involvement of vehicle died in road traffic accident due to involvement of vehicle bearing registration no. HR37A2601.
It is therefore prima facie clear that the accident in the case had taken place due to use and involvement of the vehicle bearing registration no.HR37A2601.
Hence, issue no.1 is decided against the respondents. ISSUE NO.2
13. Suit No.759/08 Page 6/12 Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
Since, issue no.1 has been decided in favour of the petitioner that he had suffered injuries due to use and involvement of offending vehicle, the petitioner is entitled to compensation under the Motor Vehicle Act.
MEDICINES AND MEDICAL TREATMENT.
14. As per medical treatment record produced by the petitioner Tarsem Singh i.e. discharge summary of Daya Nand Medical College, Ludhiana, he had remained admitted in the hospital from 24.6.2008 to 05.07.2008. He had suffered multiple fractures of the 3rd Tibia and right side fibula. He had also suffered fracture of the shaft of the femur and head and soft tissue injury of the right leg. Surgery was conducted on the ankle and fracture was united with steel plates and external fixator was applied. He had also suffered head injury, lacerated wounds over the heal. The petitioner was discharged from the hospital with advise for physiotherapy and regular check up as a O.P.D. patient. He was advised to attend the O.P.D. after 14 days. He was advised bed rest for 4 weeks. Further medical treatment record has been filed by the petitioner for treatment taken by him at the same hospital. He was Suit No.759/08 Page 7/12 admitted in the hospital on 24.9.08 and was discharged on the same day. Surgery was conducted and implant was removed, P.O.P. cast was imposed. He was discharged with advise to take rest for 2 months. Further medical treatment record of Dr. Arvind Aggarwal shows that he had remained under regular check up of Dr. Arvind Aggarwal for treatment of stiffness of ankle and difficulty in walking. He had remained under medical treatment of Dr. Arvind Aggarwal till 24.2.2009 when he was advised physiotherapy. He was also advised not to bear weight and walk on clutches by the concerned doctor. He was advised to continue bed rest for from 09.4.2009 to 09.05.2009. The petitioner has filed on record medical bills in the sum of Rs.69,717/ (in round figure Rs.69,750/). Therefore, I am inclined to grant a sum of Rs.69,750/ towards medicines and medical treatment. LOSS OF WAGES
15. Petitioner had remained under active treatment from 24.06.08 to 09.5.09 when he was advised physiotherapy for next 3 weeks. Therefore, he had remained under medical treatment till May,2009. Therefore, I am inclined to grant loss of wages to petitioner for 11 months. The petitioner had stated that he was earning Rs. 40,000/ per annum. Therefore, the yearly income of the petitioner is Rs.40,000/ Suit No.759/08 Page 8/12 and monthly income of the petitioner is Rs.40,000/ / 12= Rs.3,333/. Therefore, loss of salary for 11 months comes to Rs.3,333/ x 11=36,663/(in round figure Rs.36,700/). Therefore, loss of wages comes to Rs.36,700/.
LOSS OF EARNING DUE TO DISABILITY
16. The petitioner had examined Dr. Navneet Rustagi, who has proved disability certificate of the petitioner. he has stated that petitioner had suffered 44% permanent disability in relation to right lower limb which is not likely to be improved. He has stated that the disability is not for the entire body. Since, the doctor concerned has stated that the petitioner has suffered 44% permanent disability for the right lower limb, I am inclined to consider 22% permanent disability suffered by the petitioner qua the entire body which is likely to effect his earning capacity since he was working as a driver.
As per the claim petition the age of petitioner has been mentioned as 55 years. As per the Voter Icard the age of petitioner is mentioned as 45 years on 01.01.2005. The date of accident was 24.06.2008.
Therefore, I am inclined to consider the age of petitioner as 48 years on the date of accident. Therefore multiplier of 13 is to be applied.
Now, the loss of earning capacity will be Rs.3,333/ x 12 x 13 Suit No.759/08 Page 9/12 x 22/100 which comes to Rs.1,14,388/(in round figure Rs.1,14,400/). Thus, I award a sum of Rs.1,14,400/ to the petitioner on account of loss of earning capacity due to disability.
PAIN AND SUFFERING.
17. As per medical treatment record the petitioner had remained under medical treatment for a very long time, however, the petition has been filed U/S 163 A M.V. Act, therefore, I am inclined to grant Rs.5,000/ towards pain and suffering to petitioner. CONVEYANCE AND SPECIAL DIET.
18. Considering the nature of injuries suffered by the petitioner, I grant him a sum of Rs.2,000/ conveyance and Rs.2,000/ towards special diet to the petitioner.
19. In view of my finding on issue no.1 and 2, the petitioner Tarsem Singh is awarded following compensation: Medicines and medical treatment Rs.69,750/ Loss of wages Rs.36,700/ Pain and Suffering Rs.5,000/ Loss of earning due to disability Rs.1,14,400/ Conveyance & Special Diet Rs.4,000/ Total Rs.2,29,850/
21. Therefore, petitioner Sh. Tarsem Singh is entitled to Suit No.759/08 Page 10/12 compensation of Rs.2,27,850. Petitioner is also entitled to interest at the rate of 7.5% per annum from the date of filing of petition i.e.10.12.2008 till its realization. Out of the same Rs.1,00,000/ be given in cash to petitioner and the remaining amount be kept in the form of FDR with any nationalized bank for the period of 5 years without the facility of advance/ loan or withdrawal. However, petitioner will be entitled to monthly or quarterly interest as applicable.
22. Respondent no. 1 being driver and respondent no. 2 being insurer of the offending vehicle are jointly and severely liable to make the payment of compensation to the petitioners.
Respondent No.2, Insurance Company is directed to deposit the award amount with the Nazir of the Court within 30 days. Insurance Company/driver/owner of the offending vehicle is also directed to place on record the proof of deposit of the award amount, the notice of the deposit to the claimant and the calculation of interest in the Court within 30 days from today.
In case the Insurance Company fails to do so, General Manager of Insurance Company will file reasons for noncompliance.
In case of further delay, the Insurance Company will deposit the cheque alongwith the cost of Rs.5,000/ without any further directions as per Judgment of New India Assurance Company Ltd. Suit No.759/08 Page 11/12 Vs. Kashmiri Lal, 2007 ACJ 688. Nazir will report to the undersigned if the cheques in this case are not received within 30 days of passing of this Judgment. Nazir to note the particulars of the award amount etc. in his register today. Copy of the order be given dasti to respondent no.2 for compliance and copy of this order and information be also sent to General Manager of Insurance Company.
23. File be consigned to Record Room.
Announced in open court (SWARANA K.SHARMA)
on 26.04.2011 JUDGE : MACT : DELHI
Attested copy prepared by the Reader
and given to Ahlmad today itself.
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