Shri Barku Choudhary vs Sh.Bhim Singh & Ors.
2008 Latest Caselaw 1143 Del

*      HIGH COURT OF DELHI : NEW DELHI

                   FAO No.13 of 1999

%                Judgment reserved on: 16th July, 2008

                 Judgment delivered on:25th July, 2008


Shri Barku Choudhary,
S/o Shri Brahm Dev Choudhary,
R/o F-177, J.J.Colony, Madipur,
New Delhi-110063.                        ....Appellant

                 Through: Ms.Neha Gupta, Adv.

                          Versus
1.Sh.Bhim Singh, S/o. Sh.Har Lal,
R/o 164, Vill.Shahpur Jat,
Post6 Office: Hauz
New Delhi (Driver)

2.Sh.Raj Kumar Yadav
S/o. Vill. & P.O.Badli,
Delhi-42 (Owner).

3.Sh.Subhash Chander
S/o Sh.Banwar Lal Gupta,
R/o C/o S.S.Metal Industries,
Peera Garhi, Delhi-42.

4. United Insurance Company Ltd.
9, Transport Centre, Rohtak Road,
New Delhi-26.                     ...Respondents.
                    Through: Mr.Mansoor     Ansari,
                             Adv. for R-4.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA


FAO No.13/1999                                  Page 1 of 12
 1. Whether the Reporters of local papers may
   be allowed to see the judgment?                             Yes

2. To be referred to Reporter or not?                          Yes

3. Whether the judgment should be reported
   in the Digest?                                              Yes

V.B.Gupta, J.

The present appeal has been filed by the

Appellant against the judgment dated 07.08.98 passed

by Sh. Rakesh Kapoor, Judge, Motor Accident Claims

Tribunal (for short as the "Tribunal"), Delhi.

2. Brief facts necessary for the disposal for this

appeal are that the Appellant, Barku Chaudhary had

suffered injuries in an accident involving Maruti Car

no. DNC-2265. It is alleged that on 07.06.90, the

Appellant boarded a DTC bus from Peera Garhi,

Rohtak Road, Delhi. At about 3.30 pm, he got down

from this bus at DTC bus stop, J.J.Colony, Madipur,

New Delhi and was going towards his house at F-177,

J.J. Colony, Madipur, New Delhi after crossing the

Rohtak Road. In the meanwhile, Maruti Car bearing

regd. No. DNC-2265 came from the side of PeeraGarhi

and hit the Appellant, as a result of which the

Appellant received multiple injuries. He was removed

to E.S.I. Hospital and remained there under medical

treatment for a month.

3. The Appellant filed the claim petition seeking

compensation against Bhim Singh, Respondent no. 1

(the driver) of the offending car. Raj Kumar and

Subash Chander (Respondents no. 2 & 3) were

impleaded as being the joint owners of the offending

car. M/s. United India Insurance Co. (Respondent no.

4) was impleaded as the offending car was allegedly

insured with them at the time of the accident.

4. Written statement filed by Respondent no. 1. He

admitted the factum of the accident but denied his

negligence. He claimed that the Appellant had made

an attempt to cross the road by passing in front of his

car and did not bother for the location and situation of

the road and tried to cross the same hurriedly,

resulting in injuries to him.

5. A joint written statement was filed by

Respondents no. 2 & 3. However, it was on the similar

lines as that of Respondent no.1.

6. Separate written statement was filed by the

Respondent no. 4 wherein the Insurance Company

admitted that the offending car was insured with them

at the time of the accident but denied their liability to

pay compensation to the Appellant.

7. Vide impugned judgment, the Tribunal awarded

the compensation of Rs.24,000/- along with the interest

@ 12% per annum from the date of filing of the

petition till realisation.

8. It has been contended by the Appellant Counsel

that it is an admitted case that the Appellant remained

on medical leave because of this accident from

08.06.90 to 02.01.91 and thereafter, from 01.08.92 to

24.08.92. Although, the Tribunal has admitted this fact

yet it calculated the loss of absence strictly in terms of

money ignoring the fact that the Appellant would have

earned much more amount by way of doing over-time

and would have gained more experience making his

career more lucrative. Further, the Tribunal has also

ignored the evidence on record of Dr. Balraj, PW-1 and

the other medical record Ex.PW/1/A to Ex.PW-1/C and

even the statement of the Appellant has not been

looked into at all, wherein the Appellant has

specifically stated that he cannot lift the weight from

his right hand. He cannot run as he is still under

medical treatment. He cannot do any work properly in

any factory even the owner of the factory does not give

him full salary as he is only able to do light work. The

Tribunal has also ignored the fact that the Appellant

was operated two times, and he is not cured

completely and thus committed an error while

awarding a meager sum of Rs. 24,000/-, only inspite

the fact that the Appellant has become a permanent

disabled till date.

9. Notice of this appeal was issued to all the

Respondents. Inspite of various opportunities granted

to Appellant, he did not take steps for getting these

Respondents served.

10. Vide order dated 27.03.08 passed by this Court,

considering the fact that Respondents no. 1 & 2 are

the owner and the driver of the offending vehicle and

the offending vehicle was duly insured with

Respondent no.4/Insurance Company, it was felt that

there was no necessity of directing notice upon

Respondents no. 1 to 3 and accordingly issuance of

notice to Respondents no. 1 to 3 was dispensed with.

11. Ld. Counsel for the Respondent no.4/Insurance

Company has contended that no documentary evidence

has been filed on record regarding the permanent

disability. There is also no evidence for shortening of

the leg. Thus, the award given by the Tribunal is just

and fair.

12. The Appellant has examined seven witnesses in

his favour. Dr. Balraj from ESI Hospital, L.D.C Sh.

Kanahiya Lal from ESI Hospital, Sh. Nasir Ali, Asstt.

Administrative officer from his employer, Sh. Jai

Narain Singh Chaudhary and Sh. Sanjay Bharwaj,

witnesses from his employer, Head Constable for

proving the FIR and himself.

13. The Appellant has appeared as PW-7 in the

witness box and deposed about the manner in which

the accident took place and his subsequent treatment

at ESI Hospital.

14. The Appellant is the only witness examined in this

case with respect to the manner in which the accident

took place. His testimony was not challenged by way of

cross-examination.

15. No evidence was led by the Respondents.

16. Respondent no. 1, the driver of the offending car

has not entered in the witness box to support his

defence. For reasons best known to him, the

Respondents have chosen not to produce any evidence

to support the plea taken in the written statement and

as such inference has to be drawn against the

Respondents.

17. Hence, in the absence of any evidence, the

Tribunal has opined that the story put forth by the

Respondents in their written statement was false and

concocted, which has been rightly done in this case.

Therefore in the absence of any documentary evidence,

I do not find any infirmity in the finding of the Tribunal

on this issue.

18. The case sheets in Appellant case have been

exhibited as PW-1/A to PW-1/C. The Appellant had

remained in the hospital for a period of one month

initially. He was operated upon for a fracture in the

hospital but his treatment was free of charge in the

hospital.

19. As regard to the contention of medical leave, the

Tribunal held;

"The petitioner had remained on leave from 8.6.90 to 2.1.91. He had also remained on leave from 1.8.92 to 24.8.92. At the time of the accident he was getting a sum of Rs.767/- as wages which had increased to Rs. 1069/- in August,1992. Since, the petitioner had remained on leave for a period of about seven months from June to Jan,91, he was entitled to sum of Rs. 5,369/- as loss of income. He is also entitled to a sum of Rs.1,000/- as loss of income for the leave taken in August,1992. Thus, the total loss of income in his case comes to Rs.6,369/- or say Rs.6,500/-. I, therefore, allow a sum of Rs. 6,500/- to the petitioner as compensation on account of loss of income."

Further, the Tribunal held; "The treatment of the petitioner in ESI Hospital was free of charge. However, keeping in view, that sometimes the patient or his relatives have to buy medicines or surgical implements from outside and are not able to keep all the bills, I am inclined to grant a sum of Rs. 2,500/- to the petitioner on account of

expenses incurred by him on his treatment/purchase of medicines. I also allow a sum of Rs.5,000/- to the petitioner on account of special diet which he might have been forced to take on account of the injuries received in this accident. I also grant another sum of Rs.5,000/- to the petitioner on account of conveyance and a further sum of Rs.5,000/- to the petitioner on account of pain and agony suffered by him in the accident."

20. In the instant case, the Appellant has not

produced any Disability certificate to show that he

sustained grievous injuries which resulted into his

shortening of leg or the accident has effected his

earning capacity.

21. In a plethora of cases, the Apex Court and various

High Courts have held that the emphasis of the courts

in personal injury and fatal accidents cases should be

on awarding substantial, just and fair damages and not

mere token amount. In cases of personal injuries and

fatal accidents, the general principle is that such sum

of compensation should be awarded which puts the

injured or the claimants in case of the fatal accidents

matter, in the same position as he would have been, if

accident had not taken place.

22. In National Insurance Company Limited v.

Usha Veena Rani Minz & Anr., II (2008) ACC 42

(DB), the Jharkhand High Court has observed as

under;

"Even though the provisions of the Motor Vehicles Act relating to compensation to a victim who has suffered injuries in a motor vehicle accident, is a beneficial Legislation, but the benefit thereof can be availed only if the claimant lays a firm and reasonable foundation for his or her claim."

23. As regards to the contention of doing over time,

there is no evidence led by the Appellant in this regard

before the Trial Court. Thus, this plea cannot be looked

into at this stage.

24. Regarding contention of the Appellant Counsel

that the owner of the factory does not give him full

salary as he is only able to do light work, there is no

evidence in this regard. The Appellant did not examine

the owner of his factory where he was working to show

that he is able to do only light work.

25. In view of the above discussion, the award given

by the Tribunal is just, fair and equitable. Accordingly,

no infirmity can be found with the order of learned

Tribunal.

26. Thus, the present appeal is dismissed.

27. No order as to costs.

28. Trial court record be sent back.

July 25, 2008                        V.B.GUPTA, J.
Bisht