Delhi District Court
Arvind Joel (Injured) vs Sarvesh Kumar Sharma (Driver) on 10 October, 2014
IN THE COURT OF SH. ARVIND KUMAR : PRESIDING OFFICER: MACT
KARKARDOOMA COURTS : DELHI
M.A.C. Petition No. : 1369/10
Unique Case ID No. : 02402C0357582010
Date of institution : 21.12.2010
Reserved for orders : 16.09.2014
Judgment pronounced on : 10.10.2014
Arvind Joel (Injured)
S/o Sh. F.S. Joel
R/o 3/134, 1st Floor,
Laxmi Nagar, Delhi ...Petitioner
VERSUS
1. Sarvesh Kumar Sharma (Driver)
S/o Sh. Ganga Ram Sharma
B-Company, 32 Batalian
PAC, Sarojini Nagar,
Lucknow, U.P.
Also At :
Village Mallav,
P.S. Paraspar, Distt. Gonda, U.P.
2. Sanjay Kumar (Owner)
S/o Sh. Anar Singh
R/o 468/2, Block-B,
Shiv Colony, Faridabad,
Haryana
3. ICICI Lombard Motor Insurance Co. Ltd. (Insurer)
Office at : E-17, Sector-3,
Noida, Uttar Pradesh-201301,
Policy No. 3003/51450818/00/000
Valid w.e.f. 21.03.2007 to 20.03.2008
......Respondents
JUDGMENT
1. The petitioner has filed present claim u/s 140 & 166 of M.V. Act claiming compensation of Rs. 25,00,000/- (Rs. Twenty Five lacs) for the injuries M.A.C. Petition No. 1369/10 Page 1/10 suffered by the petitioner in the roadside accident occurred on 07.11.2007.
2. The brief facts, as stated by petitioner are that on 07.11.2007 at about 5.30 p.m. an accident took place because of rash and negligent driving of the respondent no. 1 who was driving the vehicle no. HR-55B-7298 in a rash and negligent manner and at high speed. It is stated that an FIR No. 256/07 u/s 279/338 IPC was registered. It is stated that petitioner was working as Sr. Executive in Precision Pipe & Profile Co. Ltd. and was getting salary of Rs. 18,265/- per month.
3. The respondent no. 1 and 2 did not contest the case and did not file written statement.
4. Respondent no. 3/ insurance company filed written statement admitting that the vehicle no. HR-55B-7298 was insured in the name of Sh. Sanjay Kumar vide policy no. 3003/51450818/00/000 with respondent no. 3, for the period 21.03.2007 to 20.03.2008 subject to the terms and conditions of the policy. It is further stated that answering respondent was taking all the pleas available u/s 134(c), 147, 149, 157, 66 and 88 of the MV Act and Section 64 VB of the insurance Act. It is also stated that the vehicle no. HR-55B-7298 was being driven by a person without permission or authority of insured and the said vehicle was used contrary to the terms of the insurance policy, permit, fitness and RC of the vehicle. It is also stated that driver of the said vehicle was not holding a valid and effective driving licence.
5. On the basis of the pleadings following issues were framed:-
1. Whether the petitioner suffered injuries in the accident occurred on 07.11.2007 due to rash and negligent driving of vehicle (Truck) bearing no. HR-55B-7298 being driven by the respondent no. 1? (OPP)
2. Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?M.A.C. Petition No. 1369/10 Page 2/10
3. Relief.
6. The petitioner examined himself as PW-1 and tendered his affidavit in evidence. The petitioner also examined Dr. Digvijay Singh, Sr. Resident Opthalmology, Dr. Rajendra Prasad Centre for Opthalmic Sciences, All India Institute of Medical Science as PW-2, Sh. D.R. Tiwari, Medical Record Officer, Kailash Hospital and Research Centre as PW-3 and Sh. Shyam Lal Mehra, Deputy Manager, F&A, Precision as PW-4. On the other hand, respondents did not lead any evidence.
7. I have heard counsels for the parties. My findings are as under:
ISSUE NO. 1:-
8. The petitioner examined himself as PW-1 and deposed that on 07.11.2007, he was going to his house from his office on a motorcycle no. DL- 3SA-4986 and when he reached at Phase 2nd, Sector-8 near DP Garg Factory, Noida, U.P., a truck no. HR-55B-7298 driven by respondent no. 1 in a rash and negligent manner and at high speed, hit him. The PW-1 stated that he fell down and suffered injuries and was taken to Kailash Hospital and Research Center Ltd. and thereafter was treated in Dr. Rajender Prasad Hospital, AIIMS. The PW-1 exhibited the lease agreement as Ex.PW-1/1, copy of MLC Form as Ex.PW-1/2, certificate issued by Kailash Hospital and Research Centre ltd. d. 09.01.2008 as Ex.PW-1/3, certified copies of criminal case record as Ex.PW- 1/4 and copy of FIR is marked as Mark A and bill dt. 18.01.2007 as Mark B and copy of discharge summary is marked as Mark Y. During cross- examination, the PW-1 stated that on the day of accident he was coming from his office and was having valid and effective driving licence. The petitioner stated that he was driving the motorcycle at the speed of 20-25 km/hr and offending vehicle had hit his motorcycle from right side. The PW-1 stated that it was correct that offending vehicle had hit the motorcycle from front side. The PW-1 stated that there was a left turn on the road and the truck came from the M.A.C. Petition No. 1369/10 Page 3/10 road coming from left turn and the truck was at high speed and the driver could not control the truck and while taking turn it almost came to the other side of the road and hit the petitioner and the right side of the truck had hit the right side of the motorcycle. The PW-1 stated that the police had recorded his statement after three days.
9. I have gone through the FIR, Charge sheet, site-plan, mechanical inspection reports, MLC and testimony of PW-1. It is clear that the accident occurred because of the negligence of the driver of the truck bearing no. HR- 55B-7298. The FIR, site-plan and testimony of PW-1 taken together fully establish that the injuries were sustained by petitioner involving vehicle bearing registration No. HR-55B-7298, in a road accident. There is nothing on record to dispel the inference that petitioner sustained injuries in a road accident which occurred on 07.11.2007 because of rash and negligent driving of vehicle bearing no. HR-55B-7298 being driven by the respondent No. 1. There is no evidence in rebuttal. Issue no. 1 is accordingly decided in favour of petitioner and against the respondents.
ISSUE NO. 210. The petitioner deposed that he suffered grievous injuries particularly in right side eye and the bone of the right side face had broken and he was taken to Kailash Hospital and Research Center Ltd. and thereafter to Dr. Rajender Prasad Hospital, AIIMS. The petitioner stated that he incurred Rs. 1,50,000/- on medical treatment, medicines, special diet and conveyance. The petitioner stated that he was 27 years of age and was working as Sr. Executive at Precision Pipes Co. Ltd. and was earning Rs. 18265/- per month. The PW-1 exhibited the lease agreement as Ex.PW-1/1, copy of MLC Form as Ex.PW- 1/2, certificate issued by Kailash Hospital and Research Centre Ltd. 09.01.2008 as Ex.PW-1/3, certified copies of criminal case record as Ex.PW- 1/4 and copy of FIR is marked as Mark A and bill dt. 18.01.2007 as Mark B and copy of discharge summary is marked as Mark Y. During cross-
M.A.C. Petition No. 1369/10 Page 4/10examination, the PW-1 stated that the doctors at AIIMS did not charge any professional fee. The petitioner stated that he had visited the AIIMS hospital 40 times approximately and he re-joined his duties in January '2008. The petitioner stated that he did not get salary for the period from 07.11.2007 to 22.01.2008 and he was not granted leaves as only 17 days had passed after his appointment and after six months he was confirmed in employment.
11. The PW-2 Dr. Digvijay Singh, Sr. Resident in Ophthalmic Sciences, AIIMS exhibited the medical prescriptions as Ex.PW-2/1 and a letter dt. 18.07.2013, issued by Dr. Rajender Prasad Centre for Opthalmic Sciences, AIIMS as Ex. PW-2/2. The PW-2 stated that the patient must be having difficulty in driving because of the injuries related to the eyes and patient was suffering from double vision. The PW-2 stated that patient could do desk job, could read and could also do computer work but the patient might face difficulty in out door activities such as driving and sports. The PW-2 stated that they had mentioned in Ex.PW-2/2 "Normal Binocular functioning (both eyes)" such as driving , watching 3-D movies and sports where function of both the eyes were required simultaneously. During cross-examination, the PW-2 stated that the petitioner was having normal vision in both eyes i.e. 6x6 and the petitioner did not qualify for disability on the ground of visual activity.
12. The PW-3, Sh. D.R. Tiwari, Medical Record Officer, Kailash Hospital and Research Center Ltd. produced the record Ex.PW-3/1.
13. The PW-4, Sh. Shyam Lal Mehra, Deputy Manager, Precision Pipes Co. Ltd. deposed that he had brought the attested salary slips of Sh. Arvind Joel for the month of April 2014, January 2008, December 2007 and November 2007 and exhibited the same as Ex.PW-4/1. The PW-4 stated that their company used to give annual increment of 10-12% of the salary to the employees. The PW-4 stated that Sh. Arvind did not get salary for 23 days of November '2007 and did not get salary of December '2007 and 19 days of January '2008 due to his remaining on leave and Sh. Arvind did not get M.A.C. Petition No. 1369/10 Page 5/10 promotion and increment during the year 2008 due to his remaining on leave for aforesaid period and due to the injuries suffered by him. The PW-4 stated that the output / efficiency of petitioner has decreased / reduced because of the injuries suffered by him in his eyes. During cross-examination, the PW-4 stated that Sh. Arving Joel was working with their company for the previous more than five years and their company used to give promotion to its employees after 2-3 years but Sh. Arvind Joel got promotion after six years of his service. The PW- 4 stated that at the time of accident Sh. Arvind Joel was getting salary of Rs. 14,100/- per month and lastly he was getting salary of Rs. 39,380/- per month. The PW-4 stated that Sh. Arvind Joel was getting regular increments however, he was not getting the increment which he should have got had he not suffered disability. The PW-4 stated that they were not having written rules regarding increment and promotion. The PW-4 stated that at the time of appointment Sh. Arvind Joel was given profile to co-ordinate training programmes and other administrative works and he was associated with corporates and thereafter he was transferred to Plant.
14. I have gone through the material on record. The MLC form, Ex.PW- 1/2 issued by Kailash Hospital and Research Center Ltd. shows that petitioner has suffered fracture of right frontal bone and right zigomatic, small subdural hematoma, pneumo cephalous (right) temporal region with fracture cervical spine C-6 and C-7 and mild compression D-3 and D-5. The discharge summary issued by Kailash Hospital and Research Centre Ltd. shows that petitioner was admitted on 07.11.2007 and was discharged on 18.11.2007. It is recorded in the discharge summary that petitioner was diagnosed to have suffered head injury, extradural haematoma, right temporal region with pneumoplaleous, fracture right zygomatic arch, right greater wing of sphenoid, right supraorbital frontal bone, right ethmoid with surgical emphysema, fracture spinous process C6, C7 end mild compression D3 D5 vertebrae and right medial rectus ebtraoment with bony fragment. Further the patient was referred to AIIMS for orbital fracture and Diplopia. The treatment record filed by petitioner issued by Dr. Rajender Prasad Centre for Ophthalmic Sciences, AIIMS shows that M.A.C. Petition No. 1369/10 Page 6/10 petitioner was having fracture of Zygomatic arch and spinal fracture and had also suffered with Diplopia. The petitioner remained under treatment upto December, 2007. The petitioner remained out of work for about two and half months as clear from the testimony of PW-4, Sh. Shyam Lal Mehra. The PW-4 has also produced the salary slip of the petitioner for the month of April, 2014, January, 2008, December, 2007 and November, 2007. The salary slip for the month of April '2014 shows that petitioner was getting Rs. 39,380/-; salary slip for the month of January '2008 shows total earning to be Rs. 5,458/- and salary slip for the month of November '2007 shows total earning of the petitioner to be Rs. 3,290/-. The salary slip for the month of November, 2007 (part of Ex.PW- 4/1) shows that the petitioner was getting Rs. 14,100/- per month as salary, at the time of accident.
15. The petitioner stated that he was suffering from Diplopia and the same was causing hindrance in the smooth working of his official work and other work. The PW-4 Sh. Shyam Lal Mehra, Deputy Manager, Precision Pipes Co. Ltd. stated that petitioner had got promotion after six years of his service and their company used to give promotion to its employees after 2-3 years but failed to substantiate these facts by producing any documentary evidence. The PW-4 also stated that the petitioner was getting regular increments however, did not get the increment which he should have got, had he not suffered disability. Again no document is produced by the said witness to substantiate the oral testimony. The PW-2 Dr. Digvijay Singh, Sr. Resident, Dr. Rajendra Prasad Centre for Opthalmic Sciences, AIIMS stated that patient would face difficulty in driving because of the injuries relating to the eyes as the patient was suffering from double vision but the patient could do rest of his jobs, could read and could also do computer work. The PW-2 has stated that patient might be facing difficulty in out door activities such as driving and sports. The Diplopia, double vision does not pass the test of disability and has not been categorized as disability however, it cannot be lost sight that petitioner will be feeling difficulty in driving the vehicle and doing other outdoor activities. It is not in dispute that the efficiency / output of the petitioner is reduced because of M.A.C. Petition No. 1369/10 Page 7/10 the diplopia which resulted because of the injuries suffered in the accident. Therefore, under the facts and circumstances, the petitioner although not suffered any disability as per the guidelines laid down by the Ministry of Social Justice and Empowerment, is liable to be compensated for the loss on account of Diplopia. The petitioner will have to hire employee / driver. Therefore, in my opinion a sum of Rs. 1,50,000/- shall be the just amount on account of extra expenses which the petitioner would incur because of Diplopia and the loss which the petitioner would suffer because of his reduced capacity because of eye injury. It can be also deduced from the material on record that the petitioner must have required services of attendant for 1-2 months. Bills are for Rs.1,19,557/-. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the petitioner:-
1 Compensation towards pain and sufferings Rs. 90,000/- 2 Compensation towards loss amenities and Rs. 50,000/- enjoyment of life 3 Loss of earning for two and half months Rs. 35,250/- 4 Compensation towards the future expenses Rs. 1,50,000/- which the petitioner may incur because of injury 5 Compensation towards conveyance and Rs. 30,000/- special diet (without bills) 6 Compensation towards attendant for Rs. 7,032/- two months @ Rs. 3516/- per month 7 Compensation towards medical bills Rs. 1,19,557/-
Therefore, in my opinion the petitioner is entitled to Rs. 4,81,839/- (rounded off to Rs. 4,81,840/-) which shall be the just compensation to petitioner.
LIABILITY
16. Since Insurance company has admitted the policy as on date of M.A.C. Petition No. 1369/10 Page 8/10 accident therefore respondent no. 3 is liable to pay the compensation amount.
17. There being no evidence of violation of the policy condition and there being no evidence to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
RELIEF:-
18. In view of the above, I am directing to the respondent no. 3, insurance company to pay to the claimant a sum of Rs. 4,81,840/- towards compensation within one month. The accident occurred on 07.11.2007, therefore following judgment Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, I direct that the respondent No. 3 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioner.
19. For the aforesaid reasons, I pass the following award:-
AWARD
20. In view of the above the petition is allowed. The respondent No. 3, insurance company is liable to pay the compensation of Rs. 4,81,840/-. The insurance company is hereby directed to pay a compensation of Rs. 4,81,840/-. The respondent no. 3 shall also pay interest @ 9% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner.
21. The award amount along with interest be deposited by insurance company, within 30 days in the court itself.
22. The insurance company is directed to give notice regarding the deposit of the amount to the petitioners at the address mentioned in the memo M.A.C. Petition No. 1369/10 Page 9/10 of parties and will also sent copy of notice to the counsel for petitioners at the address mentioned in the vakalatnama.
23. List for reporting compliance on 10.12.2014. The insurance company is directed to place on record the proof of deposit of the award amount, notice of the deposit and calculation of interest on the next date of hearing.
24. The insurance company shall deposit the award amount with interest up to the date of notice of deposit to the claimants with copy to their counsel. A copy of this order be given dasti to concerned parties.
Announced in the open (Arvind Kumar)
court on 10.10.2014 Presiding Officer
Motor Accident Claim Tribunal
Karkardooma Courts,Delhi
M.A.C. Petition No. 1369/10 Page 10/10