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2009 DIGILAW 1847 (PNJ)

Raj Kumar v. Dinesh Kumar And Others

2009-10-28

RAKESH KUMAR GARG

body2009
Judgment Rakesh Kumar Garg, J. 1. CM No. 5215-CII of 2009 Application is allowed subject to all just exceptions. FAO No. 1117 of 2009 2. This is claimants appeal for enhancement of compensation by modifying the award dated 20.12.2008 passed by the Motor Accident Claims Tribunal, Rewari. 3. As per the averments made in this case, on 15.3.2006 one Vikrant along with Raj Kumar, Smt. Suman, Golu and Gagan Kumar were going to village Milkhpur, Rajasthan, from Rewari in Car No. HR36-B/2386 which was being driven by Raj Kumar at a normal speed on the correct side of the road. When the car was 1 kilometer ahead of village Hansaka on Rewari-Dharuhera road, Gypsy No. HR-26/D-7105 being driven in a rash and negligent manner at a high speed came from front side and hit the car. Resultantly, all the occupants of the car sustained injuries. Vikrant sustained fatal injuries and died at the spot. Smt. Suman wife of Raj Kumar who had sustained fatal injuries succumbed in Safdarjang Hospital, Delhi, while the claimants Golu, Rajkumar and Gagan sustained injuries. FIR No. 18 dated 15.3.2006 under Sections 279, 337, 304-A IPC, Police Station Sadar Rewari was registered in this regard. Mahavir and Monika who were travelling in Gypsy No. HR-26D/7105 also sustained injuries. 4. Thus, dependent-legal representatives of Vikrant and Smt. Suman and the injured claimants Golu, Raj Kumar and Gagan, who were occupants of Car No. HR36-B-2386 and Mahavir and Monika occupants of Gypsy No. HR-26/D-7105, all filed petitions claiming compensation. 5. Upon notice, respondent-Dinesh Kumar, who was driver of Gypsy No. HR-26/D- 7105 filed written statement denying the factum of the accident and the injuries sustained by the claimants. It was also denied that the Gypsy was being driven in a rash and negligent manner and at a high speed. It was prayed that claim petition be dismissed. 6. Mukesh Kumar filed written statement denying the contents of claim petition regarding the accident etc. He further stated that he was not owner in possession of Gypsy No. HR-26/D-7105 and the same was sold to Dinesh Kumar. 7. Respondent No. 3-United India Insurance Company filed written statement raising various preliminary objections and further pleading that respondent- Dinesh Kumar was not holding a valid and effecting driving licence at the time of accident. The contents of claim petition regarding accident, injuries sustained by the claimants and deceased were denied. 7. Respondent No. 3-United India Insurance Company filed written statement raising various preliminary objections and further pleading that respondent- Dinesh Kumar was not holding a valid and effecting driving licence at the time of accident. The contents of claim petition regarding accident, injuries sustained by the claimants and deceased were denied. Dismissal of the claim petition was prayed. 8. All the claim petitions were consolidated by the Tribunal and disposed of vide common judgment impugned herein. 9. On pleadings of parties, vide order dated 12.12.2006 the following issues were framed : "1. Whether deceased Vikrant son of Sh. Birender and Suman wife of Sh. Raj Kumar died and petitioners Golu. Raj Kumar Gagan Kumar. Mahavir and Monika sustained injuries in the motor vehicular accident dated 15.3.2006 caused on account of rash and negligent driving by respondent No. I while driving the Gypsy bearing registration No.HR-26-D/7105?OPP. 2. If issue No.1, is proved in alternative, whether the petitioners in all the claim petitioners are entitled for the compensation. If so to what amount and form whom ? OPP. 3. Whether the present petition is not maintainable in the present form as alleged ? OPR-3 4. Whether the respondent No. 1 had no valid and effective driving licence to drive the vehicle in question on the day of alleged accident ? OPR-3 5. Whether the petitioners have no locus standi to file the petitions against the answering respondents ? OPR-3 6. Whether the vehicle in question was being driven in violation of the terms and conditions of the insurance policy ? OPR 7. Whether the petition is bad for non-joinder to necessary parties as the driver, owner and insurer of Maruti Car No. HR36-B-2386 have not been arrayed as respondents, as allege ? OPR 3 8. Relief." 10. On appreciation of the evidence, the learned Tribunal held that the accident occurred due to rash and negligent driving of driver of Gypsy No.HR-26/D-7105 namely Dinesh Kumar-respondent. Issues Nos. 3 to 7 were not pressed by the respondents and accordingly were decided against them. After determining the compensation in favour of the appellants, the Tribunal held that the respondent-United India Insurance Company Limited(insurer of Gypsy No. HR-26/D-7105) was liable to make the payment of compensation to the claimant-appellants. Issues Nos. 3 to 7 were not pressed by the respondents and accordingly were decided against them. After determining the compensation in favour of the appellants, the Tribunal held that the respondent-United India Insurance Company Limited(insurer of Gypsy No. HR-26/D-7105) was liable to make the payment of compensation to the claimant-appellants. It was further held that the said Insurance Company was not liable to pay compensation to Mahavir and Monika, who were traveling in the offending vehicle i.e Gypsy No. HR-26/D-7105. 11. In the present appeal (arising out of MACT No. 57), the claimant-appellant has been found entitled to a sum of Rs. 3,50,000/- on account of injuries suffered by him. While granting compensation to Raj Kumar-appellant, the Tribunal observed as under :- "From examination of record in light of aforesaid rival contentions, it is crystal clear that in the accident petitioner Raj Kumar had sustained multiple injuries. He was taken to Civil Hospital, Rewari. He was medico legally examined by PW2 Dr. Vishal Rao. He found four injuries as mentioned in MLR Ex.PW2/A. PW3 Sunil Kumar proved bills Ex.PW4/l to 59. PW5 Ajay Verma proved medical bills Ex.PW5/18 to 57, casualty card Ex.PW5/18, discharge card from 15.3.2006 to 29.3.2006 Ex.PW5/19, discharge card from 5.6.2006 to 14.6.2006 Ex.PW5/20 and OPD cards Ex.PW5/21 & 22. PVV6 Mahesh Kumar proved medical bills Ex.PW6/l and 2. PW7 Vikram Singh proved bills Ex.PW7/l to 4. PW9 Dr. Subhash Yadav stated that on 15.3.2006 Raj Kumar was admitted in Arvind Yadav Hospital, Rewari with multiple fractures. He had fracture shaft femur right side and comminuted fracture tibia left side. Patient was operated on 17.3.2006 and discharged on 29.3.2006 Patient came for follow up treatment on 5.6.2006 with non union fracture shaft femur. He was operated upon on 9.6.2006 and discharged on 14.6.2006. He proved discharge slips Ex.PW5/19 and 20. Patient again came on 24.7.2006 with non union of fracture. Patient was advised third surgery for which he did not return. He proved registration card Ex.PW9/l and bills EX.PW9/B to G.PW16 Dr. Birender Yadav stated that on 15.3.2006, 13.11.2006, 30.11.2006 and 3.12.2006 Raj Kumar had come as outdoor patient for dressing. Patient used to go to Jaipur in his ambulance. Patient again came on 24.7.2006 with non union of fracture. Patient was advised third surgery for which he did not return. He proved registration card Ex.PW9/l and bills EX.PW9/B to G.PW16 Dr. Birender Yadav stated that on 15.3.2006, 13.11.2006, 30.11.2006 and 3.12.2006 Raj Kumar had come as outdoor patient for dressing. Patient used to go to Jaipur in his ambulance. He proved ambulance bills Ex.PW16/B to J.PW18 Babu Lal proved slip of bill Ex.PWl8/A, bill Ex.PW18/B, receipts Ex.PW18/C & D, discharge summary Ex.PW18/C, blood report Ex.PWIS/F, operation theater slips Ex.PWl 8/G and H. Patient again came regarding which receipt is Ex.PW18/J. Certain medical bills were tendered as Ex.P5 to 32. The total worth of medical and transport bills Ex.PW3/A, B, PW4/1 to 59, PW5/23 to 57, PW6/1 & 2, PW7/1 to 4, PW9/A to G, PW16/A to J, PW18/A to L and Ex.P-5 to 32 comes to Rs.1,70,706/-. PW13 Dr.A.K.Saini proved disability certificate Ex.PW13/A which mentions permanent disability of petitioner as 52% on account of post traumatic stiffness of right knee, left knee with partial loss of stability with pain and mal union. In view of above evidence, it is evident that petitioner had remained under treatment from 15.3.2006 to 3.12.2006 in various hospitals. Petitioner claimed that due to injuries he was continued to bed for one year and suffered loss of Rs. 7,500/- per month as his shops remained closed. No document regarding income and closer of shops were proved. So, income of petitioner is assessed as Rs. 3000/- per month as per minimum wages norms. In view of nature of injuries it deserves to be held that petitioner must have remained out of action for a period of one year. By applying the principles of assessment of compensation as provided by Honble Supreme Court of India in R.D. Hattangadi v. M/s. Pest Control (India) Pvt. Ltd., 1995 ACJ 366 (SC) to above facts, petitioner Raj Kumar is found entitled to compensation under the following heads : Medical & transport expenses Rs. 1,70,706/- Pain and suffering Rs. 30,000/- Pain and suffering for undergoing three operations Rs. 30.000/- Loss of income for one year Rs. 36,000/- Attendant charges @ Rs. 2000/-p.m. for twelve months Rs. 24,000/- Permanent disability Rs. 1000/- for 1% @ Rs. 52,000/- Misc. Rs. 7,294/- Total Rs. 3,50.000/- 12. I have perused the impugned award. 1,70,706/- Pain and suffering Rs. 30,000/- Pain and suffering for undergoing three operations Rs. 30.000/- Loss of income for one year Rs. 36,000/- Attendant charges @ Rs. 2000/-p.m. for twelve months Rs. 24,000/- Permanent disability Rs. 1000/- for 1% @ Rs. 52,000/- Misc. Rs. 7,294/- Total Rs. 3,50.000/- 12. I have perused the impugned award. There is no other relevant evidence/material on record on the basis of which further enhancement of compensation can be granted. Thus, the compensation awarded to the appellant is just and proper. Thus, I am not inclined to interfere in the award of the Tribunal. The present appeal is dismissed in limine. Appeal dismissed.