Delhi High Court
Sushila vs Rajesh Bhatia & Ors. on 21 February, 2014
Author: Suresh Kait
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21st February, 2014
+ MAC.APP. 725/2006
SUSHILA ..... Appellant
Represented by: Mr.Mahavir Sharma,
Ms.Vandana Anand and
Mr.Ashish Dhingra,
Advocates.
Versus
RAJESH BHATIA & ORS. ..... Respondents
Represented by: Mr.Ramesh Kumar and
Mr.Ajay Singh, Advocates
for Respondent No.3/
Insurance Company.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. It is noted that the cause title of the appeal wrongly shows 'Sushila
& Ors. Vs. Rajesh Bhatia & Ors.', however, there is only one
appellant/injured. Hence, the same be read as 'Sushila Vs. Rajesh Bhatia
& Ors.'.
2. The present appeal is filed against the impugned award
dated 30.05.2006, whereby the learned Tribunal has granted
compensation for a sum of Rs.2,58,355/- with interest at the rate of 6%
per annum from the date of filing the claim petition till realization of the
amount. However, the appellant is entitled for an amount of
Rs.1,29,178/- with interest as noted above, on the basis of contributory
negligence.
3. Vide this appeal, the appellant is seeking enhancement of the
compensation amount as noted above.
4. The Ld. Counsel appearing on behalf of the appellant submitted
that the learend Tribunal has erred by recording its opinion that the
accident had taken place due to the composite negligence of both the
parties as it was incumbent upon the appellant also to be vigilant while
crossing the road. Accordingly, held the appellant 50% liable for
composite negligence.
5. Ld. Counsel submitted that the Ld. Tribunal believed and relied
upon the testimony of respondent No. 1, Rajesh Bhatia, i.e., driver of the
offending vehicle who stated that the appellant was in a hurry to cross
the road and jumped from the railing and came in front of the offending
vehicle.
6. During the pendency of the instant appeal, the appellant filed the
copy of chargesheet, which was filed against the respondent No. 1 in FIR
No.120/2003 registered at P.S. Desh Bandhu Gupta Road, along with
site plan. On perusal of the said chargesheet and the site plan, it was
nowhere indicated that there was railing near the place of the accident.
Learned counsel submitted that just to save himself and in order to take
the benefit, driver of the offending vehicle had stated against the
appellant and the learned Tribunal relied upon accordingly.
7. Learned counsel submitted that the appellant specifically stated
that on 06.05.2003 at about 8.30 a.m., she was going along with her
husband to a temple at Model Basti at Rani Jhansi Road. When she was
crossing the road along with her husband, one Maruti 800 Car (offending
vehicle) bearing registration No.HR 51 3006 came from the side of
Filmistan, being driven at a very fast speed, hit the appellant due to
which her both legs were fractured. Respondent No.1, Shri Rajesh
Bhatia/driver of the offending vehicle was also stopped by her husband.
Firstly, she was removed to Asim Hospital and after getting first aid, she
was taken to Maharaja Agrasen Hospital, where she remained admitted
till 10.05.2003.
8. Learned counsel further submitted that on the issue of crossing
over the railing, the appellant did not cross-examine the respondent No.1
as there was no railing. However, the respondent No.1, i.e., driver of the
offending vehicle had attempted to convince the learned Tribunal that
the accident had taken place due to composite negligence of both the
parties, in which he succeeded and accordingly, the learned Tribunal
held both the parties liable for 50% for committing the accident.
9. Learned counsel for the appellant further argued that the appellant
has one unsound mind daughter and due to the accident she remained on
bed rest for more than ten months. Accordingly, she could not look after
her daughter for the said period. Thus, she had to engage one maid,
namely, Pushpa, who had been examined as PW3. In her testimony, she
stated that she used to do the entire household work including personal
care of the appellant and her daughter as well. She had to go at 10.00 am
and come back at 6.00 pm. For the said work, she used to charge
Rs.3,000/- per month from the appellant. The receipts Ex.PW3/1 to 3/2
have been proved by the said witness for the charges received from the
appellant. However, the learned Tribunal has granted only Rs.10,000/-
as against Rs.30,000/- as claimed by the appellant for attendant charges.
10. Learned counsel further argued that the appellant was earning
about Rs.6,000 - 7,000 per month by doing stitching, knitting and giving
tuitions to children in the evening. She has proved her income by filing
income tax return Ex.P-1. Due to the injuries received in the accident,
appellant remained bed ridden for about ten months, however, she could
not earn anything for about fifteen months. The learned Tribunal has
granted only Rs.78,000/- for loss of twelve months income.
11. Learned counsel further submitted that the appellant had visited
the hospital for her treatment almost 30 to 35 times and every time she
had to spent Rs.100 to 150 per visit. However, the learned Tribunal had
granted only Rs.5,000/- for conveyance charges.
12. Learned counsel submitted that the appellant, who remained at
home for about fifteen months and was taking treatment for the said
period had spent a good amount on special diet. However, the learned
Tribunal has granted only Rs.10,000/- for special diet.
13. Learned counsel further submitted that towards loss of amenities
and expectation of life, the learned Tribunal has granted only Rs.10,000/-
, which is on a very lower side. Though the appellant could not move
from the bed for ten months and practically for a period of fifteen
months from her house, accordingly amenities of life during that period
was lost, but the learned Tribunal has only granted Rs.10,000/- for the
same which is on a very lower side.
14. Learned counsel also submitted that appellant paid Rs.30,000/- to
Shri Pramod Prasad, Physiotherapist, who appeared as PW2 and deposed
that he used to charge Rs.3,000/- per month from the appellant. Receipts
of the payment have been proved as Ex.PW2/1 to 2/10. But the learned
Tribunal has awarded only Rs.10,000/- towards physiotherapy charges
against Rs.30,000/- as claimed by the appellant.
15. Lastly but not the least, learned counsel for the appellant has
argued that the accident had taken place on 06.05.2003 and the rate of
interest, i.e., 6% per annum awarded by learned Tribunal is on lower
side and submitted that at least interest at the rate of 12% per annum
ought to have been granted by the learned Tribunal.
16. On the other hand, learned counsel appearing on behalf of the
respondent No.3/Insurance Company submitted that DW1, the driver of
the offending vehicle has specifically stated that the appellant herself
came in front of his car by jumping the grill, therefore, he was not at
fault in the accident in question. His testimony has not been rebutted by
the appellant as there was no cross-examination on this issue.
17. Learned counsel further submitted that neither PW2 Shri Pramod
Prasad was a Physiotherapist nor there was any advice from any doctor
that the appellant required physiotherapy for ten months. Thus,
testimony of PW2 did not conspire any evidence. However, the learned
Tribunal has rightly granted Rs.10,000/- towards the same.
18. Learned counsel further submitted that the appellant claimed
Rs.30,000/- towards the amount paid to the maid, but the learned
Tribunal had granted Rs.10,000/-. For loss of income for about 12
months, the learned Tribunal has sufficiently granted Rs.78,000/-.
Accordingly, on this issue also, no interference is required from this
Court.
19. On the issue of conveyance charges, learned counsel submitted
that the appellant herself has admitted in her evidence by way of
affidavit that she visited for about 30 to 35 times and spent Rs.100 to 150
per visit as conveyance charges. He submitted that the learned Tribunal
has sufficiently granted Rs.5,000/- towards the same, therefore, this issue
also needs no interference from this Court.
20. Learned counsel further submitted that qua the special diet, loss of
amenities and expectation of life and pain and suffering, the learned
Tribunal had sufficiently granted Rs.10,000/- each for the first two heads
and Rs.25,000/- for the latter.
21. As far as the issue of interest is concerned, in the year 2003, even
the interest being paid on FDRs was from 6% to 6.5% and moreover, it
is the discretion of the court. However, the learned Tribunal keeping in
mind the interest rate prevalent at that time has awarded interest at the
rate of 6% per annum on the awarded amount, from the date of filing of
the Claim Petition till realization of the amount.
22. I have heard the learned counsel for the parties and perused the
record.
23. Respondent no. 1, Rajesh Bhatia, i.e., the driver of the offending
vehicle stated before the Ld. Tribunal that the appellant was in hurry in
crossing the road and jumped from central verge of the grill and came in
front of the offending vehicle, thus, he was not negligent for committing
the accident. Thus, Ld. Tribunal while relying upon the statement of
respondent no. 1 held both the parties 50% liable to composite
negligence. However, during the pendency of the instant appeal, the
appellant filed a copy of the chargesheet against respondent no. 1 in FIR
No. 120/2003, registered at PS-Desh Bandhu Gupta Road, along with
site plan. Perusal of the said charge sheet and site plan reveal that it was
nowhere indicated that there was a railing near the place of accident.
The appellant has also deposed that on 06.05.2003, she was going along
with her husband to a temple at Model Basti, Rani Jhansi Road, Delhi
and when she was crossing the road along with her husband, one Maruti
Car (offending vehicle) bearing registration No. HR-51-3006 came from
the site of Filmistan, being driven at a very fast speed hit the appellant,
due to which, both of her legs were fractured.
24. In her cross-examination, she denied the suggestion put by the
counsel for the respondents that she was crossing the road after passing
through the railings. Respondents also failed to produce any
photographs or witness, which can prove that there was a railing near the
spot of the accident. Therefore, Ld. Tribunal has overlooked this fact
and held that both the parties were liable for 50% composite negligence.
25. In view of above discussion, I am of the considered opinion that
appellant was not at all liable for the accident.
26. On the issue of attendant charges, the appellant remained on bed
rest for more than 10 months. While admitting this fact, the Ld. Tribunal
has awarded Rs.78,000/- towards loss of income for 12 months.
However, the appellant examined PW3, Pushpa, who used to work at her
residence and was taking care of the appellant and her mentally
challenged daughter and used to receive Rs.3,000/-, which has been
proved vide receipts Ex.PW3/1 to PW3/2.
27. Keeping in view the testimony of PW3 and receipts Ex.PW3/1 and
PW3/2, I am of the considered opinion that appellant is entitled for
Rs.30,000/- towards attendant charges.
28. On the issue of loss of income, conveyance charges, towards loss
of amenities and expectation of life and physiotherapy charges, I am of
the considered opinion that Ld. Tribunal has rightly granted Rs.78,000/-,
Rs.5,000/-, Rs.10,000/- and Rs.10,000/- respectively.
29. So far as the issue of rate of interest is concerned, appellant failed
to examine any witness to prove that on the date of accident, i.e.
06.05.2003 rate of interest on FDRs was 12% or so as claimed by the
appellant. Therefore, I am not inclined to interfere with the interest
awarded by the Ld. Tribunal.
30. Accordingly, the compensation amount comes as under:-
Sl. Heads of Compensation Compensation
No. compensation granted by the Ld. granted by this
Tribunal. court.
i. Loss of income Rs.78,000/- Rs.78,000/-
ii. Expenses for Rs.1,10,355/- Rs.1,10,355/-
Medicines and
treatment
iii. Conveyance Rs.15,000/- Rs.15,000/-
and diet
charges
iv. Compensation Rs.25,000/- Rs.25,000/-
for pain and
suffering
v. Expenses on Rs.10,000/- Rs.10,000/-
physiotherapy
v. Expenses on Rs.10,000/- Rs.30,000/-
domestic help
vi. Loss of Rs.10,000/- Rs.10,000/-
amenities and
expectation of
life
Total Rs.2,58,355/- Rs.2,78,355/-
Resultantly, the award is assessed at Rs. 2,78,355/-
31. In view of the finding regarding the issue of negligence, the
appellant / claimant is entitled for an amount of Rs.2,78,355/- along with
6% interest per annum from the date of filing of the petition till
realization.
32. Respondent No.3/Insurance Company is directed to deposit
balance compensation amount with the Registrar General of this Court
within a period of six weeks from today, failing which, appellant /
claimant shall be entitled for penal interest @ 9% per annum on account
of delayed payment.
33. On deposit, the Registrar General is directed to release the amount
in favour of the appellant / claimant on taking necessary steps by her.
34. In view of the above, the appeal is allowed.
SURESH KAIT, J.
FEBRUARY 21, 2014/sb/jg
