Delhi District Court
Smt. Latha Subramanian vs Sh. Sandeep Kumar Gupta (Driver) on 29 February, 2012
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL
II, DWARKA COURTS, NEW DELHI
MACT NO.: 57/12/08
IN THE MATTER OF :
Smt. Latha Subramanian
W/o Sh. R.S. Subramanian
R/o A204, Happy Home App.
Sector7, Pocket12A
Dwarka, New Delhi110075
......Petitioner
Versus
1. Sh. Sandeep Kumar Gupta (Driver)
S/o Sh. Maneger Kumar Gupta
R/o Village Paridha, Distt. Kushi Nagar
Also At:
C/o Jaiveer Singh
A87, Kunwar Singh Nagar
Nangloi, Delhi41
2. M/s. T.C. Industries (Owner)
F633634, Industrial Area
Khera, Bhiwadi (Raj)301001
3. ICICI Lombard Insurance Co. Ltd. (Insurer)
5th Floor, Birla Towar25
Latha Subramanian v. Sandeep Kr. Gupta & Ors. Page 1 of 9
Bara Khamba Road
New Delhi. .........Respondents
FILED ON : 01.08.2008
HEARD ON : 29.02.2012
DECIDED ON : 29.02.2012
: J U D G M E N T :
1. This is a claim petition under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Respondent No. 1 is the driver of the offending vehicle, Respondent No. 2 is its registered owner and Respondent No. 3 is the insurance company which has insured the offending vehicle.
3. It is stated in the claim petition that the petitioner is a lady aged 42 years; she is self employed and earning an income of Rs. 5000/ per month from the profession of tuition classes.
4. Petitioner has stated that on 19.05.08 at about 5.20 p.m. she was going to Haridwar alongwith his husband in a car bearing registration no. DL9LCC6595. When they reached near Bharat Gas Agency, Ramphal Chowk, Dwarka, New Delhi, the offending vehicle, JCB Machine, bearing registration no. RJ32EA0016 which was being driven rashly and negligently by Respondent No. 1 hit the Latha Subramanian v. Sandeep Kr. Gupta & Ors. Page 2 of 9 car of the petitioner from left side. Due to the impact, petitioner sustained injuries in neck and other bodily injuries.
5. It is stated that after the accident, Petitioner was removed to D.D.U. Hospital, Hari Nagar for treatment. Thereafter, she is under alternative therapy of treatment i.e. Reiki. It is also stated that petitioner is still under trauma and in the condition of shock due to injuries sustained by her in the accident which are detailed in the MLC.
6. It is stated that petitioner had spent about Rs. 30,000/ till date on the medicines and treatment. It is also stated that besides the treatment, an attendant was also deputed who was also paid the remuneration for the services rendered by her.
7. A case under Section 279/337 of IPC is registered against driver of the offending vehicle being FIR No. 310/08 in P.S. Dwarka, New Delhi.
8. Petitioner has claimed a compensation of Rs. 3,00,000/ from the respondents.
9. Respondent No. 1 and 2 have not come forward to contest the matter and have been proceed exparte.
10. Respondents No. 3 has denied all the averments made by claimant in her claim petition.
11. From the pleadings of parties, following issues were Latha Subramanian v. Sandeep Kr. Gupta & Ors. Page 3 of 9 framed: ISSUES
1) Whether, petitioner Smt. Latha Subramanian have sustained injuries on her person in an accident which took place on 19.05.08 caused due to negligent driving of the vehicle bearing registration no. RJ32EA0016 being driven in a negligent manner by Respondent No. 1, owned by Respondent No. 2 and insured with Respondent No. 3? OPP
2) In case, issue no. 1 is decided in affirmative then to what amount of compensation, petitioner is entitled and from whom? OPP
3) Relief.
12. Petitioner entered in the witness box to prove her case as PW1. She stated similar facts in evidence by way of affidavit as were already stated by her in her claim petition.
13. In the evidence of PW1, Election Identity Card of the petitioner, driving license, prescription of a doctor who had treated the petitioner on 05.06.08, receipt of Sh. Vijender Kumar, Reiki Master, receipts of chemists of Rs. 2380/ and Rs. 3688/ and OPD Card of DDU Hospital were exhibited as Ex. PW1/16 respectively.
14. In her cross examination, she deposed that she was not issuing receipts against the fees charged from the children. She deposed that her husband was having a driving license but the same Latha Subramanian v. Sandeep Kr. Gupta & Ors. Page 4 of 9 was not placed on record. She admitted that she has not placed on record any written prescriptions with respect to her future treatment.
15. Investigating Officer of the case was examined as PW2 who proved copy of FIR, site plan and registration certificate of the offending vehicle as Ex. PW2/AC.
16. On behalf of insurance company, Manager (Legal) appeared as R3W1 and deposed that in this case the driver and the owner of offending vehicle have not submitted the copy of driving license of driver and fitness certificate and permit of offending vehicle. Notice issued under Order 12 R 8 of CPC was given Ex. R3W1/1 and receipt of courier and registered AD were exhibited as Ex. R3W1/2. Copy of insurance policy was given Ex. R3W1/3. It was stated that as the offending vehicle was being driven by its driver without driving license and permit and the insured had permitted him to drive the same in violation of the terms of policy, the insurance company is not liable to indemnify the insured.
17. On the basis of pleadings of parties, evidence on record and arguments addressed by learned Counsel for the insurance company, issuewise findings are as under: Issue No. 1 :
18. This issue had to be proved by the petitioner.
19. Petitioner has stated in her claim petition that the Latha Subramanian v. Sandeep Kr. Gupta & Ors. Page 5 of 9 Respondent No. 1 was driving the JCB Machine in a rash and negligent manner. Respondent No. 1 had not filed any written statement and was proceeded exparte. Therefore, the contentions of petitioner remained unrebutted. Petitioner deposed in her examination in chief that the offending vehicle was being driven in a rash and negligent manner. This averment of the petitioner was not controverted by driver of offending vehicle.
20. The driver of offending vehicle did not enter the witness box to prove his innocence.
21. Evidence of Investigating Officer of the criminal case was recorded as PW2 who stated that after conclusion of investigations he had filed charge sheet against driver of offending vehicle. The same is prima facie evidence of negligence of driver of offending vehicle.
22. The test of negligence in a claim petition is based on preponderance of probabilities and not beyond all reasonable doubts.
23. Applying the principles of Res Ipsa Locquitor this issue is decided in favour of petitioner and against the respondents. Issue No. 2:
24. The nature of injuries as per MLC are simple. The petitioner was treated initially at DDU Hospital and it is conceded by counsel for petitioner that she was discharged on the same day. Latha Subramanian v. Sandeep Kr. Gupta & Ors. Page 6 of 9 Therefore, for Pain and Agony a compensation of Rs. 5000/ is granted.
25. Petitioner has filed bills of Chemist Ex. PW1/5 dated 19.05.08 and 05.06.08 as per which she has purchased medicines worth Rs. 2380/ and Rs. 3688/ respectively. As per these exhibits, petitioner has purchased several medicines but they are not mentioned in the OPD Card of DDU Hospital.
26. However, petitioner must have spent some money on Purchase of Medicines for which she is granted a compensation of Rs. 2500/.
27. Vide Ex. PW1/4, petitioner has filed a receipt for Rs. 2500/ given to Sh. Vijender Kumar, Reiki Master vide cheque no. 94880. Therefore, this compensation is also allowed.
28. There is no other medical bill or receipts for medicines. However, a sum of Rs. 1000/ is given for Miscellaneous Expenses like conveyance charges, special diet etc.
29. The case being of simple injury the claim for loss of wages in future on account of this accident is rejected. Issue No. 3: Relief
30. Resultantly, an award is passed for a sum of Rs. 11,000/ in favour of petitioner with interest @ 7.5% p.a. from the date of filing of application which is 01.08.08 till its deposit. Latha Subramanian v. Sandeep Kr. Gupta & Ors. Page 7 of 9
31. The next question is about liability of the respondents to pay this compensation. Respondent No. 1 and 2 were proceeded ex parte. It appears that even during pendency of criminal case the driving license of driver of offending vehicle was neither seized nor it was filed on record in this case.
32. Notice was given to the owner and driver of the offending vehicle to produce the driving license vide Ex. R3W1/1. Postal receipts are Ex. R3W1/2. However, the same was not filed by the driver of the offending vehicle.
33. It raises a presumption that the driver was not having any valid license to drive the offending vehicle.
34. Even in Accident Information Report filed by the IO, the column of driving license is blank.
35. Therefore, in the first instance payment will be made by insurance company and thereafter insurance company will be entitled to recover the said amount from the insured. Reliance can be placed on the judgment of Hon'ble High Court of Delhi titled as Meena & Ors. v. Sube Singh & Ors. MAC APP. No. 812/10 dated 08.02.12 where Hon'ble High Court has held that where driver and owner prefer not to respond to the notice under Order 12 R 8 of CPC and do not produce the license and permit in the Court the insurance company is entitled to recovery rights as insurance company after Latha Subramanian v. Sandeep Kr. Gupta & Ors. Page 8 of 9 doing whatever was in its power by asking the owner and driver to produce the permit and the license cannot do anything further to prove breach of terms of insurance policy.
36. Payment be deposited by insurance company within 30 days under intimation to petitioner by registered post.
37. A copy of this order be given dasti to all the parties.
38. File be consigned to Record Room.
Announced in the Open Court.
On the 29th Day of February, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL, DWARKA COURTS, NEW DELHI.
Latha Subramanian v. Sandeep Kr. Gupta & Ors. Page 9 of 9