Delhi High Court
Jagdish Prashad Singh vs Umed & Ors on 2 December, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28th November, 2011
Pronounced on: 2nd December, 2011
+ MAC APP. 719/2010
JAGDISH PRASHAD SINGH ..... Appellants
Through: Ms. Deepti Gupta, Adv.
Versus
UMED & ORS. ..... Respondents
Through: Mr. Pankaj Seth, Adv. for Respondent
No.3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant Jagdish Prasad Singh impugns the award dated
01.06.2010 passed by Motor Accident Claim Tribunal (the
Tribunal) whereby the claim petition under Section 166 of
Motor Vehicles Act, 1988 preferred by him was dismissed on
the ground that it was not established that the Appellant
suffered injuries in the accident in the manner as alleged by the
Appellant.
2. I have perused the Tribunal's record and have heard Ms. Deepti
Gupta, learned counsel for the Appellant and Mr. Pankaj Seth,
learned counsel for the Respondents No.3.
3. It is urged by the learned counsel for the Appellant that there
was ample evidence on record to establish the involvement of
TATA 407 No.DL-1LA-6097 in the accident and rashness and
negligence on Respondent No.1's part. The Tribunal, argued
the learned counsel for the Appellant, committed grave error in
not believing the Appellant's testimony in the shape of affidavit
Ex. PA, which was not challenged in cross-examination on the
factum of accident and culpable negligence on Respondent
No.1's part.
PROOF OF NEGLIGENCE:
4. In order to prove the accident and rashness/ negligence on
Respondent No.1's part the Appellant proved FIR No.324/1998
P.S. Bagpat, which was recorded on the statement of
Appellant's brother Sripal. The Tribunal doubted the
Appellant's version mainly on the ground that the number of the
two wheeler on which the Appellant was riding on the pillion
was not mentioned in the FIR. To my mind that by itself does
not negate the accident. It is important to note that the number
of the offending vehicle i.e. TATA 407 No.DL-1LA-6097 was
clearly mentioned. The Appellant deposed that Umed Singh
(Respondent No.1) while driving vehicle No.DL-1LA-6097
rashly and negligently came from Taitri side and struck against
their two wheeler scooter. He and his brother fell down o the
road.
5. The Appellant was cross-examined on behalf of driver and the
owner (Respondents No.1 & 2) as also on behalf of National
Insurance Co. Ltd. (Respondent No.3). No suggestion was
given to the Appellant that the accident did not take place.
Rather a suggestion was given on behalf of Respondents No.1
& 2 that it was the Appellant, who was driving the scooter.
Thus the factum of accident was admitted by the Respondents
No.1 & 2. The factum and the manner of the accident was not
even disputed by the Respondent No.3 in the Appellant's cross-
examination.
6. The Appellant was immediately taken to the Govt. Medical
Officer in Bagpat and was later removed to ESI Hospital, Basai
Darapur as the Appellant enjoyed ESI benefits being an
employee of Govt. Servants Co-operative House Building
Society Limited, "Kalyan Kendra", 9, Pashchimi Marg, Vasant
Vihar, New Delhi-110057. From the attested copy of the FIR,
attested copy of the treatment received from the Medial Officer
CHC, Bagpat and PW-1's testimony, it is established that the
accident took place on account of culpable negligence of
Respondent No.1 while driving TATA 407 No.DL-1LA-6097.
QUANTUM OF COMPENSATION:
7. The Appellant suffered serious injuries in the accident resulting
in permanent physical impairment to the extent of 40% in
respect of right lower limb. The Appellant was working as a
carpenter with Govt. Servants Co-operative Group House
Building Society Ltd., Vasant Vihar. According to the PW-2,
he was getting a salary of ` 2,801/- at the time of accident. The
Appellant continued to get the same salary and normal
increments even after the physical impairment in respect of his
right lower limb. It was admitted by PW-2 Tarun Taneja
produced by the Appellant that his salary rose to ` 5,757/- on
the date of recording his statement on 03.03.2005. Since, the
Appellant did not suffer any functional disability and continued
to earn his wages and increments, he would not be entitled to
any compensation under the head of loss of earning capacity
[Raj Kumar v. Ajay Kumar & Anr., (2011) 1 SCC 343].
8. The Appellants in his affidavit Ex. PA testified that he took
leave for ten months i.e. from 01.09.1998 to 02.07.1999. He
deposed that he lost salary for these 10 months @ ` 4,149/- per
month. The factum of losing salary was not disputed in cross-
examination. PW-2 corroborated the Appellant's testimony to
the extent that the Appellant was on leave from 01.09.1998 to
02.07.1999. The witness did not state as to how many leaves
were on pay and how many were without pay. In any case, the
Appellants would be entitled to be compensated for the loss of
leaves also even if he was paid salary. Though, the Appellant
claim his salary to be ` 4,149/- but it was proved to be only `
2,801/- on the date of accident. The Appellant is thus entitled to
a sum of ` 28,000/- on account of loss of salary/ loss of leave.
9. After the accident, the Appellant was immediately taken to
CHC, Bagpat by his brother Sripal and MLC dated 01.09.1998
was prepared. He was then admitted in ESI Hospital, Basai
Darapur on the same day and was operated on 05.10.1998. He
was discharged from ESI Hospital on 22.10.1998. The
Appellant deposed that during the period he was on leave, he
visited the Hospital twice a week. He spent ` 20,000/- on
conveyance, ` 15,000/- on his diet @ ` 50/- per day, engaged an
attendant @ ` 1,000/- for 10 months. In his affidavit Ex. PA,
the Appellant claimed ` 50,000/- towards pain and suffering.
10. The Appellant was a resident of Vasant Vihar. Though, the
actual distance between the Vasant Vihar and Basai Darapur has
not come on record, I would make a guess and taking the rate
in the year 1998-1999 would award conveyance charges of `
5,000/- @ ` 100/- per visit (for TSR) towards 50 visits.
11. Considering the nature of injuries suffered by him, the
Appellant needed special diet and I would assess the
compensation under this head @ ` 25/- per day for 300 days
totaling ` 7,500/-.
12. The Appellant remained admitted in the Hospital for a little less
than 2 months. Even thereafter the Appellant would have
needed an attendant for some time. I would award ` 1,000/- for
services of an attendant for 3 months and thereafter at the time
of his visits to the Hospital I award a lump sum amount of `
2,000/- Thus, the Appellant is entitled to a sum of ` 5,000/- in
all towards the conveyance charges spent by him during the
period of his treatment.
13. The Appellant suffered permanent disability in the left lower
limb to the extent of 40%. He would have difficulty throughout
his life in squatting, running and using public transport. The
Appellant cannot be compensated in terms of money for the
pain and suffering and for loss of amenities in life, yet an effort
has to be made to award adequate sum of money that would put
the party, who has suffered, in the same position as if he had not
suffered the wrong. In the circumstances of the case, I award
the Appellant a sum of ` 25,000/- towards pain and suffering
and further sum of ` 50,000/- towards loss of amenities and
disfigurement. The compensation awarded is extracted
hereunder in tabulated form:
Loss of pay/ leave : ` 28,000/-
Conveyance Charges : ` 05,000/-
Special Diet : ` 7,500/-
Attendant Charges : ` 05,000/-
Pain & suffering : ` 25,000/-
Loss of amenities in life and
disfigurement : ` 50,000/-
____________
Total ` 1,20,500/-
____________
The Appellant is entitled to a total compensation of `
1,20,500/- along with interest @ 7.5% from the date of filing of
the petition till realization of the amount and Respondents No.1
to 3 (being driver, owner and Insurer) are jointly and severally
liable to pay the same. Respondent No.3 being the Insurer is
directed to satisfy the award within a period of six weeks.
14. The appeal is allowed in above terms. No cost.
(G.P. MITTAL)
JUDGE
December 2, 2011
hs
