1 IN THE COURT OF SH. HARISH DUDANI JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI SUIT NO.:228/12 DATE OF INSTITUTION:3.12.2012 1. Sh. [ENTITY] S/o Sh. Chander Singh R/o House No.41B,Vrindavan Garden Sahibabad,UP. Petitioner. Versus 1. Sh. [ENTITY] S/o Sh.Vinod Kumar R/o H.No.1353,Sector 34C Chandigarh. 2. [ENTITY]. Respondents
Final Arguments heard on : 17.4.2014 Award reserved for : 30.4.2014 Date of Award : 30.4.2014 AWARD
1. The DAR in case FIR no.130/12 u/[SECTION] [ACT], PS Barakhamba Road was filed on 3.12.2012. Briefly stated the facts giving rise to the claim are that on 4.6.2012 the petitioner was sitting as pillion rider on motorcycle no.DL1SS2366 which was being driven by ct.[ENTITY] and at about 12.30pm they were crossing the traffic signal of K.G.Marg and motorcycle no.CH04C9915 being driven by Sh.[ENTITY] in rash and negligent manner came from behind and bundle of paper was being carried on the said motorcycle and the bundle of paper fell down from motorcycle no.CH04C9915 infront of motorcycle on which the injured was travelling as a result of which the motorcycle no.DL1SS2366 on which the injured was travelling fell down by touching the said paper bundle and the petitioner sustained injuries. The petitioner was taken to RML hospital.
2. It is stated that petitioner was 44 years of age at the time of accident and he was working with Delhi Police and he has suffered loss of income due to accident.
3. Respondents no. 1 the driver cum owner has not filed reply and was proceeded exparte on 2.5.2013.
4. Respondent no. 2, the insurance company has filed written statement and has contested the petition. It is admitted that policy no. 214502/31/2012/774 valid for period from 21.7.2011 to 20.7.2012 for vehicle no. CH04C9915 was issued to Sh.[ENTITY]. Other averment on merit are denied.
5. Vide order dated 2.5.2013 case was fixed for evidence on point of negligence and quantum of compensation.
6. In support of his claim the petitioner examined himself as PW1. He tendered his examination in chief by affidavit which is Ex.PW1/1. PW1 proved copy of his election identity card Ex.PW1/A, discharge summary of Narinder Mohan hospital & Heart Centre, Mohan Nagar, Ghaziabad and investigation reports Ex.PW1/B(colly.), medical bills Ex.PW1/C(colly.), copy of pay slip mark A, copy of form 16 mark B and copies of MLC and treatment record mark C, discharge report of RML hospital Ex.PW1/D, copy of leave record mark B, copy of complaint made to police is mark C, income tax returns for the year 20122013 Ex.PW1/E, copy of OPD card of Narinder Mohan hospital & Heart Centre mark D(colly.) and receipts of Narinder Mohan hospital & Heart Centre mark E(colly.).
7. On the other hand respondents did not lead any evidence and RE was closed on 20.2.2014.
8. I have heard the Ld. counsel for the parties and perused the record.
9. For succeeding in this claim, petitioner is required to prove negligence on the part of the driver of the offending vehicle and that he is entitled to the quantum of compensation as claimed.
10.As this is a claim u/[SECTION] [ACT], it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to rash and negligent driving by respondent no.1, the driver of offending vehicle no. CH04C9915.
11.To determine the negligence of driver of offending vehicle it has been held in [PRECEDENT] as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in [PRECEDENT]). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under [SECTION] , [ACT] against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the [ACT] are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
12.The case of the petitioner is that on 4.6.2012 the petitioner was sitting as pillion rider on motorcycle no.DL1SS2366 which was being driven by ct.[ENTITY] and at about 12.30pm they were crossing the traffic signal of K.G.Marg and motorcycle no.CH04C9915 being driven by Sh.[ENTITY] in rash and negligent manner came from behind and bundle of paper was being carried on the said motorcycle and the bundle of paper fell down from motorcycle no.CH04C9915 infront of motorcycle on which the injured was travelling as a result of which the motorcycle no.DL1SS2366 on which the injured was travelling fell down by touching the said paper bundle and the petitioner sustained injuries. The petitioner was taken to RML hospital. It is stated that case vide FIR No.130/12, u/[SECTION] [ACT] was registered at PS Barakhamba Road. The petitioner appeared in the witness box as PW1 and adduced evidence by way of affidavit Ex.PW1/1. In his affidavit Ex.PW1/1 the petitioner has reiterated the manner of accident as stated in the claim petition. The driver and owner have preferred to remain exparte and have not cross examined petitioner/PW1. In the cross examination of petitioner/PW1 the counsel for insurance company has not put any question related to manner of accident. The police has filed Accident Information Report(AIR) and alongwith AIR police has filed copy of FIR No.130/12, u/[SECTION] [ACT], PS Barakhamba Road, copy of site plan, copy of final report u/[SECTION] [ACT], copy of seizure memo of offending vehicle, copy of arrest memo of respondent no.1, copy of insurance policy of offending vehicle, copy of MLC of petitioner prepared at RML hospital, copy of mechanical inspection report of offending vehicle. As per the FIR the case was registered on the basis of complaint of petitioner wherein he has reiterated the manner of accident as stated in the claim petition. As per final report u/[SECTION] [ACT] respondent no.1 has been charge sheeted for the offences u/[SECTION] [ACT]. The respondents have not proved any other version of accident. As per testimony of PW1/petitioner and documents on record the accident had taken place out of use of offending vehicle no.CH04C9915 thereby causing injuries on the person of petitioner as contemplated by [SECTION] [ACT] Thus in view of the testimony of petitioner/PW1 and documents on record, the negligence of respondent no.1 has been prima facie proved.
13.As negligence of driver of offending vehicle has been proved, petitioners are entitled to compensation.
COMPENSATION MEDICINES AND MEDICAL TREATMENT
14. The case of the petitioner is that after the accident on 4.6.2012 he was taken to RML hospital from where he was discharged on the same day and thereafter the petitioner was admitted in Narinder Mohan hospital and Heart Centre on 5.6.2012 and he was discharged on 15.6.2012 and thereafter also he has undergone subsequent treatment. The petitioner has filed on record the discharge summary prepared at RML hospital Ex.PW1/D as per which he was admitted in RML hospital on 4.6.2012 and was discharged on the same day and the diagnosis is mentioned as fracture bimalleolar right. The petitioner has filed discharge summary of Narinder Mohan hospital & Heart Centre Ex.PW1/B(colly.) as per which he was admitted in the said hospital on 5.6.2012 and was discharged on 15.6.2012 and the diagnosis is mentioned as trimalleolar fracture dislocation right ankle and in the treatment given it is mentioned as "
close manipulation of ankle dislocation done on 6.6.12, ORIF(both malleolus left done on 11.6.12, antibiotics". The contention of petitioner is that he has undergone subsequent treatment at Narinder Mohan hospital & Heart Centre. Petitioner/PW1 stated in cross examination that payment of medical bills pertaining to period of his admission in Narinder Mohan hopsital & Heart Centre were made by his department and he is relying on bills filed on record. The petitioner has filed bills of treatment taken subsequent to his discharge from hospital on 15.6.2012 amounting to Rs. 2694/.Petitioner is entitled to admissible medical bills of Rs.2694/. PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
15.It has been held in [PRECEDENT] as under:
13."The damages for vehicular accidents are in the nature of compensation in money for less of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In [PRECEDENT] [ENTITY] stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but no other process can be devised than that of making monitory assessment."
16. The case of the petitioner is that after the accident on 4.6.2012 he was taken to RML hospital from where he was discharged on the same day and thereafter the petitioner was admitted in Narinder Mohan hospital and Heart Centre on 5.6.2012 and he was discharged on 15.6.2012 and thereafter also he has undergone subsequent treatment. The petitioner has filed on record the discharge summary prepared at RML hospital Ex.PW1/D as per which he was admitted in RML hospital on 4.6.2012 and was discharged on the same day and the diagnosis is mentioned as fracture bimalleolar right. The petitioner has filed discharge summary of Narinder Mohan hospital & Heart Centre Ex.PW1/B(colly.) as per which he was admitted in the said hospital on 5.6.2012 and was discharged on 15.6.2012 and the diagnosis is mentioned as trimalleolar fracture dislocation right ankle and in the treatment given it is mentioned as "
close manipulation of ankle dislocation done on 6.6.12, ORIF(both malleolus left done on 11.6.12, antibiotics". In view of nature of injuries, period of hospitalization and extent of treatment, the petitioner is awarded Rs. 30,000/(Rs. Thirty Thousand only) towards pain and suffering.
17.Looking at the nature of injuries notice can be taken of the fact that on account of injuries sustained the petitioner may not have been able to perform his day to day duties towards the family and may not have been able to enjoy the amenities of life. In the circumstances petitioner is awarded a sum of Rs.10,000/towards loss of amenities of life. CONVEYANCE AND SPECIAL DIET
18. In his affidavit Ex.PW1/1 the petitioner has not stated that he spent any amount on conveyance. The contention of counsel for respondent no.2 is that the petitioner has not proved that he incurred any expenditure on conveyance charges. Although the petitioner has not proved that he incurred any expenditure on conveyance charges. However notice can be taken of the fact that after the accident on 4.6.2012 petitioner was admitted in RML hospital from where he was discharged on the same day and thereafter he was admitted in Narinder Mohan hospital & Heart Centre and he has undergone subsequent treatment also and after discharge from the hospital and for subsequent treatment, the petitioner might have hired the services of private conveyance/ambulance as he may not have been able to use public conveyance and might have incurred expenditure on the same. In the circumstances petitioner is awarded sum of Rs.5,000/ for conveyance.
19. In his affidavit Ex. PW1/1 the petitioner has not specified the amount incurred on special diet. The contention of counsel for respondent no.2 is that the petitioner has not proved that he spent any amount on special diet. Although the petitioner has not proved the amount spent on special diet however, looking at the nature of injuries notice can be taken of the fact that the petitioner might have taken diet rich in protein,vitamins and minerals for speedy recovery and might have incurred expenses on the same. In the circumstances the petitioner is awarded a sum of Rs.5,000/ towards special diet.
ATTENDANT CHARGES
20. In para 17 of affidavit Ex. PW1/1 the petitioner has stated that he hired services of attendant for a period of six months on the salary of Rs. 10000/. Although the petitioner has stated in his affidavit Ex.PW1/1 that he hired services of attendant however he has not furnished the details of person who was hired by him, the duration for which the attendant was hired and the amount which was paid to the attendant. Although the petitioner has not proved by any cogent evidence that he hired services of attendant however looking at the nature of injuries sustained by petitioner notice can be taken of the fact that petitioner might have taken assistance for movement and day to day discharge of his functions as he may not have been able to move on his own. In the circumstances, a sum of Rs.10000/ would be just and proper for attendant charges and is awarded accordingly.
LOSS OF INCOME
21.In para 15 of the affidavit Ex.PW1/1 the petitioner has stated that he is working as inspector with PHQ, ITO, New Delhi and is getting salary of Rs.50613/pm and in para 16 of affidavit Ex.PW1/1 the petitioner has stated that he was issued a medical leave certificate. In his affidavit Ex.PW1/1 the petitioner has not specified the duration for which he was advised rest and consequently had taken leave on that account. The petitioner has also not specified the nature of leave availed by him and whether he suffered any loss of income on account of that leave. The petitioner has relied on photocopy of order No.365357/CRAC/PCR dated Delhi 19.3.2013 of Assistant Commissioner of Police, GA, Police Control Room, Delhi as per which the petitioner was on commuted leave for 120 days w.e.f.5.6.2012 to 2.10.2012 and 14 days earned leave w.e.f. 3.10.2012 to 16.10.2012. The petitioner has also relied on one copy of medical certificate dated 16.10.2012 issued by Narinder Mohan hospital & Heart Centre as per which the petitioner was advised rest from 5.6.2012 to 16.10.2012 and was declared fit to resume duties on 17.10.2012. Petitioner/PW1 stated in cross examination that he cannot exactly tell the amount however a sum of Rs.14000/ to 15000/ was deducted from his salary on account of leave taken by him. The petitioner has not examined any witness from his department in order to prove that he has suffered any financial loss due to leave taken by him. As per order No.365357/CRAC/PCR dated Delhi 19.3.2013 the petitioner has taken 120 days commuted leave and 14 days earned leave.
22.In [PRECEDENT], Hon'ble High Court has held that:
"10.Admittedly, the Second Respondent took leave on account of his incapacity to attend to his duties because of the injuries suffered in the accident. He admitted that he was paid the salary for the leave taken by him. The Second Respondent lost leave for a period of six months, which he could have availed for other purposes. Although, the Second Respondent did not suffer any financial loss but loss of leave which he may be entitled to encash on year to year basis or at the time of his superannuation, has to be compensated in terms of money."
23. The petitioner has not proved that the commuted leave taken by him were encashable at any stage of his career. Accordingly the petitioner is not entitled to loss of income for the period of 120 days commuted medical leave taken by him. The petitioner shall be entitled to compensation for 14 days of earned leave taken by him from 3.10.2012 to 16.10.2012 as the same is encashable. The petitioner has filed copy of his salary slip for the month of June 2012 as per which his basic pay was Rs.15630/,grade pay Rs.4600/, D.A. Rs.13150/. Hence the total income of petitioner for purpose of computation of financial loss on account of 14 days earned leave would be Rs.33380/per month. Hence the petitioner is awarded Rs.33380/30x14= Rs.15577.3/ which is rounded off as Rs.15577/ for loss due to 14 days Earned Leave.
24.The petitioner has not proved that he has suffered any permanent disability due to this accident or the nature of injuries sustained by him were such that on account of said injuries his future income will be jeopardized and his efficiency will be reduced and his capacity to earn will be affected. In the circumstances no amount is being awarded on account of future loss of income.
The total compensation is assessed as under:
Medicines and Medical treatment : Rs.2694/ Pain and suffering and loss of Amenities of life : Rs.40,000/ Conveyance and Special Diet : Rs.10,000/ Attendant Charges : Rs.10,000/ Loss of Income : Rs.15,577/ TOTAL : Rs.78271/ RELIEF
25. The petitioner is awarded a sum of Rs.78271/(Rs.Seventy Eight Thousand Two Hundred Seventy One )with interest at the rate of 9% per annum from the date of filing of petition till its realisation including, interim award, if any already passed against the respondents and in favour of the petitioner. Entire award amount be released to the petitioner.
26.Respondent no.2 shall deposit the award amount directly in the bank account of the claimant at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
[ENTITY] to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. [ENTITY] is directed to note the particulars of the award amount in the register today itself. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by [ENTITY] and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the [ENTITY] within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
28.Respondent no. 2 shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimants with a copy to his counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 18.7.2014.
APPORTIONMENT OF LIABILITY:
29.Respondents have not led evidence inspite of opportunity being granted, thus, respondent no.1 being the driver cum owner and respondent no. 2 being the insurer are held jointly and severally liable. Respondent no. 2 being the insurer is directed to deposit the award amount within 30 days. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. [ENTITY] to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. [ENTITY] is directed to note the particulars of the award amount in the register today itself. An attested copy of the award be given to the parties(free of cost).
Announced in the open court. ([ENTITY]) on 30.4.2014. PO/MACT01, New Delhi.