Delhi District Court
Sh. K.K. Goel S/O Sh. Giri Lal Goel vs Sh. Rajesh Sharma S/O Sh. B.S. Sharma on 16 March, 2015
1
IN THE COURT OF MS. BARKHA GUPTA : JUDGE : P.O
MACT :NOTH WEST DISTRICT: ROHINI COURTS: DELHI
MACT No. : 174/09
UNIQUE ID No. : 02404C0057522009
Sh. K.K. Goel S/o Sh. Giri Lal Goel,
R/o 57B, Blkock A N,
Shalimar Bagh, Delhi110088. .......(Injured/Petitioner)
Versus
1. Sh. Rajesh Sharma S/o Sh. B.S. Sharma,
R/o Village Malha Majra, P.O Chhatera,
Tehsil & District Sonipat,
Haryana. ...(Driver/Respondent no. 1)
2. Smt. Suman Devi W/o Sh. Bal Singh, R/o Village Malha Majra, P.O Chhatera, District Sonipat, Haryana. ....(Owner/Respondent no. 2)
3. The ICICI Lombard General Insurance Company Ltd., ICICI Bank Tower, Bandra Kurla Complex, Bandra East, Mumbai400051. ....(Insurer/Respondent no.3) MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 1 of 16 2 Other details: DATE OF INSTITUTION : 07.02.2009 DATE OF RESERVING JUDGMENT : 09.03.2015 DATE OF PRONOUNCEMENT OF JUDGMENT : 16.032015 AWARD/JUDGMENT
1. The petition under sections 166 & 140 of the Motor Vehicles Act, 1988 has been filed by the petitioner/injured namely Sh. K.K.Goel, wherein he has prayed that compensation to the tune of Rs. 7,00,000/ alongwith interest at the rate of 12% per annum be awarded in his favour from date of filing of the petition till realisation of the compensation amount.
2. Brief facts of the case are that on 05.08.2008 at about 3:30 p.m, the petitioner was going from Adarsh Nagar to Azadpur, Delhi on his scooter and he was driving his scooter with due precaution and at normal speed and when he reached in front of N.D.P.L Power House, near Kewal Park Extension, Azadpur, Delhi, the offending vehicle i.e the crane bearing registration No. HR696642, which at the relevant time was driven by MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 2 of 16 3 Sh. Rajesh (R1) in a rash and negligent manner and it over turned on the petitioner and an another person due to its rash and negligent driving by R1 as a result of which, the petitioner also came under the offending vehicle due to which the petitioner sustained fractures on both bone forearm compound grade I (R) and also got fracture on fibula (right leg) and suffered various other injuries as per treatment record, who was rescued by public persons who also admitted him in Vinayak Hospital and after sometime, the police officials also reached to the hospital and recorded his statement. The petitioner remained admitted in the said hospital from 05.08.2008 to 09.08.2008.
The petitioner has submitted that he suffered from permanent disability and is not able to perform any work and at the relevant time, he was proprietor of Shiv Shakti Trading Company at A9, Sarai Peepal Thala Extension, near Adarsh Nagar, Delhi and used to earn Rs. 10,000/ per month, but due to the said accident, he had to close his work. Further, FIR No. 175/08, u/s 279/337 IPC was also registered against R1 by the MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 3 of 16 4 police officials of P.S. Adrash Nagar regarding the said accident. The petitioner has prayed that compensation of Rs. 7,00,000/ alongwith interest at the rate of 12% per annum be awarded in his favour and all the respondents are jointly and severally liable to pay him the compensation amount as Sh. Rajesh Sharma/R1 was driving the offending vehicle at the relevant time, Smt. Suman Devi/R2 was the registered owner of the offending vehicle and the offending vehicle was duly insured with The ICICI Lombard General Insurance Company Ltd./R3.
3. As per record, in the case in hand, Sh. Rajesh Sharma/R1 and Smt. Suman Devi/R2, who are the driver and owner of the offending vehicle respectively have filed their written statement jointly, wherein they have interalia submitted that the said accident took place due to rash and negligent driving of the petitioner himself and have further submitted that R1 was driving the offending vehicle properly.
4. The Insurance Company/R3 has filed its written statement wherein it has interalia submitted that R1 was not having any MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 4 of 16 5 valid driving licence and the offending vehicle was being run without permit. It has also submitted that the offending vehicle was duly insured with it in the name of R2 vide policy cover note bearing No.3008/52379565/00/000, which was valid from 22.08.2007 to 21.08.2008.
5. As per record, vide order dt. 27.05.2009 following issues were framed by my learned Predecessor:
1. Whether on 05.08.08 at about 3:30 p.m in front of NDPL Power House, crane No. HR696642 which was being driven rashly and negligently overturned on the petitioner and caused injuries to him? OPP
2. Whether driver of the offending vehicle did not have valid DL? OPR3
3. Whether petitioner himself was guilty of negligence? OPR1&2
4. Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP
5. Relief.
6. In the case in hand, the petitioner/injured Sh. K.K. Goel has MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 5 of 16 6 examined himself as PW1 and lead his evidence by way of affidavit which is Ex.PW1/A, wherein he has also relied upon various documents. None of the respondents have adduced any evidence on record.
7. I have heard final arguments as advanced by Advocate Sh. Ramanand Chaudhary, Ld. Counsel for the petitioner & Advocate Sh. S.K. Tyagi, Ld. Counsel for the Insurance Co./R3. None has appeared for R1 and R2 to advance final arguments. Now, I proceed to discuss the issues in the succeeding paragraphs.
8. It is pertinent to discuss that since Issue No.1 and Issue no. 3 are interrelated, hence they are discussed together. Issue No.1 "Whether on 05.08.08 at about 3:30 p.m in front of NDPL Power House, crane No. HR696642 which was being driven rashly and negligently overturned on the petitioner and caused injuries to him? OPP"
Issue No.3.
" Whether petitioner himself was guilty of negligence? OPR MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 6 of 16 7 1 &2"
9. In the case in hand, the petitioner/injured Sh. K.K. Goel has examined himself as PW1 and lead his evidence by way of affidavit which is Ex.PW1/A. During crossexamination on behalf of the insurance company/R3, he has interalia stated that he is running a firm in the name of Shiv Shakti Trading Company and has not filed the income tax returns for the financial years 20082009 and 20092010. He has denied that he had not filed the income tax returns for assessment year 20092010 because his income had enhanced. He has stated that he used to pay Rs. 3,000/ per month as attendant charges, but did not file any document. He has also stated that he incurred Rs. 25,000/ on special diet and Rs. 20,000/ on conveyance, but has not filed the documents in this regard. He has stated that Rs. 1,20,000/ was incurred as medical expenses, but he has filed medical bills of Rs. 92,432/ only and stated the name of doctor who did physiotherapy as Ramesh Sagar. During further crossexamination, he has stated that at the relevant time, he was on left side of the offending MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 7 of 16 8 vehicle and could not tell the speed of the offending vehicle, but stated that the speed of his scooter was about 3040 Kms per hour. He has denied if the said accident did not take place due to rash and negligent driving of R1.
10. It is not out of place to discuss that the petitioner K.K. Goel has clearly narrated the manner in which the said accident was caused, wherein he sustained various injuries and had to remain admitted in hospital for a considerably long time. He has clearly deposed that the said accident occurred due to rash and negligent driving of R1, who at the relevant time was driving the offending vehicle with which the said accident took place. Though, he was crossexamined at length by the Insurance Company/R3, as already discussed, however, nothing is placed on record to the contrary to show that he is deposing falsely or that the said accident did not occur in the manner as testified by him. It also cannot be lost sight that R1, who was driving the offending vehicle has not come forward to crossexamine the petitioner on any aspect to rebut his testimony regarding rashness/negligent on part of R1 in driving the offending MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 8 of 16 9 vehicle. As such, there is no material before the court to suggest even remotely that the petitioner is deposing falsely or that the said accident did not occur in the manner as deposed by him or that he did not sustain injuries. Even, R2, who is the owner of the offending vehicle did not crossexamine the petitioner on any ground and the entire testimony of the petitioner has remained unchallenged by R1 & R2 and from the crossexamination of petitioner as conducted on behalf of the Insurance Company/R3, nothing is shown on record that the petitioner is deposing falsely or that the accident did not occur in the manner as testified by him. Further, there is no reason to disbelieve the version of the petitioner, who has come forward in narrating the incident truthfully.
Further, the certified copies of the criminal case pertaining to FIR No. 175/08 U/s 279/337 IPC are also placed on record including the copy of FIR and charge sheet u/s 173 Cr. PC etc., which also clearly show that R1 was prosecuted and arrested in the said accident case regarding causing the present accident wherein the petitioner had sustained injuries and the offending MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 9 of 16 10 vehicle was also seized. It is nowhere shown on record or even whispered that R1 had made any complaint to anyone regarding his false implication in the case. There is nothing on record to suggest even remotely if R1 did not cause the said accident in the manner as narrated by the petitioner and there is nothing on record, if the said accident occurred due to negligence of the petitioner. Accordingly, in view of the totality and fact and circumstances of the case and on the basis of material as placed on record, there is no reason to disbelieve the version of the petitioner and hence, in view of above discussion, Issues No.1 & 3 are decided in favour of the petitioner and against the respondents.
11.Issue no.2 " Whether driver of the offending vehicle did not have valid DL? OPR3"
12. The onus to prove this issue is on Insurance co./R3 but the insurance co./R3 has not adduced any evidence if the driving license of R1 was not valid. Therefore, in the given facts and circumstances, it is considered that driver of the offending MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 10 of 16 11 vehicle having a valid driving license and hence, this issues is accordingly decided.
13. Issue no. 4 "Whether petitioner is entitled to compensation, if so, to what amount and from whom?"OPP
14. The petitioner has examined himself as PW1 and has filed certain documents in support of his claim qua expenses incurred by him on his medical treatment. The petitioner has relied upon the medical bills which are Ex. PW1/C (colly 42 sheets) and the same are nowhere shown to be false or fabricated, as per which, the petitioner had spent an amount of Rs. 92,432/ on his medical treatment and nothing is shown if the said documents are not genuine. Hence, in the given facts and circumstances, as per the documents produced and proved by the petitioner, an amount of Rs. 92,432/ is awarded to the petitioner towards his medical expenses.
15. Amount granted to the petitioner towards Pain, Suffering, Special Diet and attendant charges. As per record, the petitioner has also filed and proved the MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 11 of 16 12 document Ex. PW1/B (colly 18 pages) regarding his medical treatment which clearly shows that the petitioner was admitted in Vinayak hospital on 05.08.08 and was discharged on 09.08.08 and thereafter, his treatment had also continued upto the month of October 2008. The said documents are nowhere under dispute by any of the respondents and accordingly, in the given facts and circumstances and on the basis of material produced and proved before the court, in considered opinion of the court, the petitioner must have suffered pain, agony and shock due to the injuries sustained in the accident and accordingly, keeping in view the nature of his injuries, an amount of Rs. 35,000/ is granted to him towards his pain and sufferings. Further, an amount of Rs. 5,000/ is also granted to him towards his special diet and an amount of Rs. 3,000/ is also granted to him towards his conveyance charges. As per document Ex. PW1/C, which are the medical bills of the petitioner which show that his treatment was continued upto October 2008 and during the said period, his family members must have attended him and therefore, the petitioner is also MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 12 of 16 13 entitled for attendant charges and hence, a lump sum amount of Rs. 15,000/ is also granted towards attendant charges to the petitioner.
16. It is appropriate to discuss here that, though, the petitioner has claimed that he had suffered from permanent disability, but he has nowhere testified as to what extent, he had suffered from permanent disability and there is no supporting document regarding his permanent disability. Further, he has not examined any doctor to enable the court to ascertain the degree and extent of permanent disability, if any, suffered by the petitioner and in the given facts and circumstances and in view of above, the only reasonable conclusion that can be drawn is that the petitioner did not suffer from any permanent disability and hence, he is not entitled for any amount on that count.
17. Loss of income As per record, the petitioner has filed his income tax returns for the year 200506 & 200607 and as per income tax returns for the year 200607, his gross income is shown as Rs. 1,14,645/ p.a and after deduction of tax of Rs. 1,319/ it comes to MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 13 of 16 14 Rs. 1,13,326/ p.a. Therefore, I am of the view that annual income of the petitioner is Rs. 1,13,326/ and monthly income comes to Rs. 9,443/. Accordingly, as per treatment of record of the petitioner which is Ex. PW1/C, which are the medical bills which shows that petitioner was treated upto October 2008. Therefore, the petitioner is entitled for three month's loss of income. In the given facts and circumstances, this court is of the considered opinion that the petitioner is entitled for three month's loss of income and an amount of Rs.28,329/ (Rs. 9,443x3) for loss of income is awarded to the petitioner.
18. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs.1,78,761/ which is tabulated as below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 35,000/ 2 Special diet Rs. 5,000/
3. Conveyance Charges Rs 3,000/
4. Attendant Charges Rs. 15,000/
5. Medical bills Rs. 92,432/
6. Loss of income Rs. 28,329/ MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 14 of 16 15 Total Rs. 1,78,761/
19. In the case in hand, the ICICI Lombard General insurance company/R3 has not been able to show anything on record that R1, who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle or that the permit of offending vehicle was not valid and as per settled law, since the offending vehicle was duly insured with the ICICI Lombard General Insurance company/R3, hence R3 is liable to pay the entire compensation amount to the petitioner as per rules. Accordingly, in the case in hand, The ICICI Lombard General Insurance co. Ltd. (R3) is directed to deposit with this Tribunal within 30 days from today the awarded amount of Rs. 1,78,761/ alongwith interest at the rate of 7.5 % per annum from the date of filing of the petition till notice of deposit of award amount to be given by R3 to the petitioner and his counsel. The entire award amount be released to petitioner in cash as per rules.
MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 15 of 16 16
20. The Petition is accordingly disposed of. File be consigned to record room as per rules. Copy of order be given to parties for necessary compliance as per rules.
(BARKHA GUPTA)
ANNOUNCED IN THE OPEN JUDGE/MACT:ROHINI
COURT ON 16.03.2015 DELHI
MACT No.174/09 K.K. Goel Vs. Rajesh Sharma 16 of 16