Delhi District Court
Stephen Samuel vs Dharmbeer on 11 January, 2016
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.42/15
Date of Institution: 13.04.2015
IN THE MATTER OF:
Stephen Samuel
S/o Shri P.G. Samuel
R/o C752, JVTS Garden
Chattarpur Extn.
New Delhi. ...Petitioner
Versus
1. Dharmbeer
S/o Shri Sher Singh
R/o G1/50, Mahavir Enclave
New Delhi.
2. M/s S.K. Taxi Service
Sector7, R.K. Puram
Near Rock Garden
New Delhi.
3. The Oriental Insurance Co. Ltd.
9, Community Centre
Phase1, Mayapuri
New Delhi. ...Respondents
Final Arguments heard : 14.12.2015 Award reserved for : 11.01.2016 Date of Award : 11.01.2016 Suit No. 42/15 Page no. 1 of 33 Stephen Samuel Vs Dharmbeer & Ors. AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioner that on 14.12.2014, the petitioner was going by his car No.HR26AF0991 TATA Indica for receiving his relative at IGI Airport and at about 9.40 p.m. when he reached ahead of Santoor Hotel, Near CISF check post speed breaker, he was hit from behind by the driver/ respondent No.1 of Innova Car No.DL1YD5084 who was driving the offending vehicle in a rash and negligent manner without observing traffic rules and regulations. It is submitted that the petitioner sustained injuries and his car was also badly damaged from the back and the petitioner was removed to Fortis Hospital by police Gypsy. It is contended that if the driver of the vehicle bearing No.DL1YD5084 Innova Car had been a bit cautious, the accident could have been avoided. It is alleged that the accident had been caused purely due to rash and negligent driving of the offending vehicle by its driver. It is stated that in respect of the accident FIR No.476/2014 under sections 279/337 IPC was registered at PS IGI Airport.
3. It is submitted that the petitioner sustained pain lower back, right hip, right leg, right ankle, laceration right lower leg, cspine non tender, unable to straighten right leg. In the discharge summary it was diagnosed as Suit No. 42/15 Page no. 2 of 33 Stephen Samuel Vs Dharmbeer & Ors.
undisplaced fracture right inferior pubic ramus with fracture left iliac bone and sacrum, anterior column of right acetabulam, disruption of right S.J. Point, undisplaced fracture left iliac bone. The petitioner was removed to Fortis Hospital, Vasant Kunj, New Delhi after the accident where he was medically treated. He was admitted on 15.12.2014 and was discharged on 18.12.2014. It is averred that since the petitioner had multiple fractures therefore, he was advised rest in the hospital and after discharge also. The petitioner was bed ridden for about 60 days and was not able to move from the bed. It is stated that the petitioner was 39 years old. He had done B. Com and he was working with IYOGI Technical Services Pvt. Ltd. B1, Building No.6, DLF Cyber City, Sector 2425 Gurgaon, Haryana as an accountant and was earning Rs. 47,000/ p.m. It is averred that the petitioner was not able to join the duties after the accident and had taken leave for two months from his company and for that his salary was deducted. It is submitted that the petitioner had goodwill with the employer, hence he was doing his duties from his residence since he was not able to move and reach the working place. However, the petitioner was not able to sit for more than 1 1/2 hours. It is contended that the petitioner was not alright till date and it appeared that he had developed permanent disability. The car of the petitioner was also badly damaged and he had got some amount from the insurance company with whom he had insured his car. The cost of the car of the petitioner had been reduced to Zero due to the accident. It is stated that the petitioner had to depend on special diet for early recovery and on that account he had spent a sum of Rs.350/ per day from the Suit No. 42/15 Page no. 3 of 33 Stephen Samuel Vs Dharmbeer & Ors.
date of the accident. He had spent a sum of Rs.10,000/ on transportation. It is alleged that the treatment of the petitioner was still continuing. It is averred that the petitioner was not able to perform his day to day activities, hence he was constrained to hire an attendant and he was paying the attendant a sum of Rs. 9,500/ p.m. He had hired the attendant as he needed personal help to perform all kinds of day to day activities. It is stated that the respondent No.1 is the driver, respondent No.2 is the owner and the respondent No.3 is the insurance company, hence all the respondents are jointly, severally and vicariously liable to pay the compensation to the petitioner. It is prayed that an amount of Rs.10,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
4. Reply was filed on behalf of the respondents No.1/driver and respondent No.2/ owner taking the preliminary objections that the DAR was not maintainable and the petitioner had concealed material and vital facts from the court. The averments made were denied. It was denied that on 14.12.2014 at 9.40 p.m. Innova Taxi No.DL1YD5084 hit the Indica Car No.HR26AT0991 on the back side or that the Indica Car driver got/ received injuries. It is contended that the Innova Taxi No.DL1YD5084 was falsely implicated in the case.
5. Reply was filed on behalf of the respondent No.3/Oriental Insurance Co. Ltd. averring that the policy of the alleged offending vehicle bearing Suit No. 42/15 Page no. 4 of 33 Stephen Samuel Vs Dharmbeer & Ors.
No.DL1YD5084 (Innova Taxi) was obtained by its owner M/s S.K. Taxi Service and the vehicle was insured with the respondent company vide policy No.215502/31/2015/1395 for the period 19.08.2014 to 18.08.2015. It is submitted that as per the DAR filed by the SHO/IO in the case, it was evident that Dharambeer was driving the offending vehicle which was a taxi for commercial purpose, without valid and effective DL as he was holding a DL for LMV NT and he was holding a learning license though he was driving the taxi for commercial purpose contrary to the terms and conditions of the policy and rules and regulations. It is contended that from the facts and circumstances of the case as evident from the charge sheet filed in the case it was evident that there was composite negligence on the part of the injured who was driving his car bearing No.HR26AF0991 (Indica) involved in the accident. It is averred that there was a clear cut breach of terms and conditions of the policy by the owner of the vehicle, hence the owner/ driver were responsible for compensation if any arising out of the accident and the insurance company had no liability towards the same. It is stated that the owner/ insured had not complied the terms and conditions of the policy by not informing regarding the accident to the insurance company.
6. Initially the Detailed Accident Report was filed by the IO on 11.3.2015 and thereafter the claim petition was filed on 13.4.2015. From the pleadings of the parties, the following issues were framed vide order dated 18.05.2015:
Suit No. 42/15 Page no. 5 of 33 Stephen Samuel Vs Dharmbeer & Ors.
1. Whether the petitioner/injured sustained injuries in the accident which occurred on 14.12.2014 at about 9.40 p.m. at IGI Airport, T3 after Tunnel Incoming Road, New Delhi caused by rash and negligent driving of vehicle No.DL1YD5084 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP
2. Whether the petitioner/injured is entitled for compensation? If so, to what amount and from whom?
3. Relief.
An application was filed on behalf of the petitioner for issuance of disability certificate which was allowed vide order dated 3.6.2015. Thereafter report was received from the Disability Board as per which the petitioner had no residual/ permanent disability.
7. The petitioner, Shri Stephen Samuel appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He deposed that he spent about Rs. 55,000/ on treatment and a sum of Rs.27,000/ was reimbursed. He had joined work place about 30 days prior to 18.5.2015 (date of the affidavit). He stated that he was hale and hearty at the time of the accident. Copy of driving license of the petitioner is Ex.PW1/1, copy of passport is Ex.PW1/2, copy of B. Com degree is Ex.PW1/3, copy of RC is Ex.PW1/4, copy of rent agreement is Ex.PW1/5, copy of medical documents is Ex.PW1/6 (colly), medical bills are Ex.PW1/7 (colly), copy of compensation restructure letter by employer IYOGI Suit No. 42/15 Page no. 6 of 33 Stephen Samuel Vs Dharmbeer & Ors.
is Ex.PW1/8, pay slip is Ex.PW1/9, ID Card issued by IYOGI is Ex.PW1/10 and medical equipment on rent receipt is Ex.PW1/11.
8. In support of his case, the petitioner had examined Shri Sunil Tripathi, Leave Finance and Accounts Officer, iYogi Technical Pvt. Services Ltd. as PW2. Copy of the appointment letter of the petitioner Stephen Samuel is Mark A, pay slips for the months of December2014 to April2015 are Ex.PW2/A (colly), statement of account showing transfer of salary is Ex.PW2/B (colly), attendance sheet showing the leaves taken by the petitioner is Ex.PW2/C (colly) and the certificate and emails allowing the petitioner to work from home are Ex.PW2/D (colly). PE was closed on 12.10.2015.
9. On behalf of the respondent No.3, Ms. Pallavee Thakral, Administrative Officer was produced in the witness box as R3W1 and she led her evidence by way of affidavit which is Ex.R3W1/A. She deposed that the policy of the alleged offending vehicle bearing No.DL1YD5084 (Innova Taxi) was obtained by its owner M/s S.K. Taxi Service and the vehicle was insured with the respondent company vide policy No.215502/31/2015/1395 for the period 19.08.2014 to 18.08.2015 and the liability of company was as per the terms and conditions of the policy. The policy is Ex.R3W1/A. She further deposed that as per the DAR filed by the SHO/IO in the case it was evident that Dharambeer was driving the offending vehicle which was a taxi for commercial purpose, without valid and effective DL as he was holding a DL for Suit No. 42/15 Page no. 7 of 33 Stephen Samuel Vs Dharmbeer & Ors.
LMV NT and he was also holding a learning license though he was driving the taxi for commercial purpose contrary to the terms and conditions of the policy and rules and regulations. Attested copies of the DLs are Ex.R3W1/B1 and B2 respectively. She stated that there was a clear cut breach of terms and conditions of the policy in question by the owner of the vehicle, hence the owner/driver were responsible for compensation if any arising out of the accident and the insurance company had no liability towards the same. She stated that in view of the facts and circumstances stated there was no liability against the insurance company/ respondent No.3 towards any claim arising out of the accident. She was not crossexamined on behalf of the petitioner. RE was closed on 23.11.2015.
10. I have heard the Learned Counsel for the petitioner as well as the Learned Counsel for the respondent No.3 and perused the record. The petitioner was also examined on 21.8.2015 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
11. My findings on the specific issues are as under:
Suit No. 42/15 Page no. 8 of 33 Stephen Samuel Vs Dharmbeer & Ors.
Issue No. 1
12. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
Suit No. 42/15 Page no. 9 of 33 Stephen Samuel Vs Dharmbeer & Ors.
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
13. The case of the petitioner is that on 14.12.2014, the petitioner was going by his car No.HR26AF0991 TATA Indica for receiving his relative at IGI Airport and at about 9.40 p.m. when he reached ahead of Santoor Hotel, Near CISF check post speed breaker, he was hit from behind by the driver/ respondent No.1 of Innova Car No.DL1YD5084 who was driving the offending vehicle in a rash and negligent manner without observing traffic rules and regulations. It was submitted that the petitioner sustained injuries and his car was also badly damaged from the back and the petitioner was removed to Fortis Hospital by police Gypsy. It was contended that if the driver of the vehicle bearing No.DL1YD5084 Innova Car had been a bit cautious, the accident could have been avoided. It was alleged that the accident had Suit No. 42/15 Page no. 10 of 33 Stephen Samuel Vs Dharmbeer & Ors.
been caused purely due to rash and negligent driving of the offending vehicle by its driver. It was stated that in respect of the accident FIR No.476/2014 under sections 279/337 IPC was registered at PS IGI Airport. In paras 2 and 3 of his affidavit Ex.PW1/A the petitioner had reiterated the mode and manner of the accident as stated in the claim petition.
14. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of DD; copy of MLC and medical documents, copy of arrest memo and personal search memo, copy of seizure memos; copy of mechanical inspection report of the offending vehicle and of the car of the petitioner, copy of verification report of the RC of the offending vehicle with the copy of the RC, copy of the insurance policy of the offending vehicle and its verification report, a copy of the DL and the learner's license of the respondent No.1 with its verification report, copy of Authorization certificate for permit, copy of fitness certificate of the offending vehicle, copy of order on application for release of the vehicle of the petitioner and the offending vehicle on superdari along with copy of the superdarinama, copies of photographs, copies of statements under section 161 Cr.P.C. and copies of educational certificates and employment documents in respect of the petitioner. As per the FIR No.476/14 under sections 279/337 IPC, PS IGI Airport the case was registered on the basis of complaint of the petitioner Stephen Samuel wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has Suit No. 42/15 Page no. 11 of 33 Stephen Samuel Vs Dharmbeer & Ors.
been charge sheeted for the offence under sections 279/338 IPC.
15. The respondents No.1 and 2 had filed the reply denying that on 14.12.2014 at 9.40 p.m. Innova Taxi No.DL1YD5084 hit the Indica Car No.HR26AT0991 on the back side or that the Indica Car driver got/ received injuries. It was contended that the Innova Taxi No.DL1YD5084 was falsely implicated in the case. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that on 14.12.2014, at about 9.40 p.m. he went to airport for receiving the relatives. At the time of the accident he was driving the vehicle No.HR26AF0991. The speed of his car was 2530 k.m./hr. He admitted that he was driving his car while looking straight ahead. He admitted that he looked on the back side after the accident. He could not tell the meter speed of the offending vehicle but it was in high speed. He denied the suggestion that the accident had occurred due to his sole negligence as he took sudden brakes. He denied the suggestion that the offending vehicle Innova was at a speed of 2530 k.m/hr at the time of the accident. Thus PW1 stated that the speed of his car was 2530 k.m./hr. He could not tell the meter speed of the offending vehicle but it was in high speed. A suggestion was put to him that the accident had occurred due to his sole negligence as he took sudden brakes which he denied and there is even nothing to show the same.
16. The mechanical inspection report of the offending vehicle shows damage to the front portion of the vehicle and the mechanical inspection Suit No. 42/15 Page no. 12 of 33 Stephen Samuel Vs Dharmbeer & Ors.
report of the car of the petitioner shows damage to the back side. Further the offending vehicle was found at the spot of the accident. As such the involvement of the offending vehicle in the accident cannot be disputed. The respondent No.1 who is the driver and the respondent No.2 who is the owner of the offending vehicle have not adduced any evidence to dispute the version put forth by the petitioner or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/338 IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.DL1YD5084. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
17. It was stated that due to the accident, the petitioner sustained injuries and his car was also badly damaged from the back and the petitioner was removed to Fortis Hospital by police Gypsy. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner. Thus it stands established that the petitioner had sustained injuries in the alleged accident.
Suit No. 42/15 Page no. 13 of 33 Stephen Samuel Vs Dharmbeer & Ors.
This issue is accordingly decided in favour of the petitioner and against the respondents.
Issue No.2
18. Since issue No.1 has been decided in favour of the petitioner he would be entitled to compensation as per the provisions of the Act. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, he is further entitled to non pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
19. The case of the petitioner is that due to the accident on 14.12.2014 the petitioner sustained injuries and his car was also badly damaged from the back. It was submitted that the petitioner sustained pain lower back, right hip, right leg, right ankle, laceration right lower leg, cspine non tender, unable to straighten right leg. In the discharge summary it was diagnosed as Suit No. 42/15 Page no. 14 of 33 Stephen Samuel Vs Dharmbeer & Ors.
undisplaced fracture right inferior pubic ramus with fracture left iliac bone and sacrum, anterior column of right acetabulam, disruption of right S.J. Point, undisplaced fracture left iliac bone. The petitioner was removed to Fortis Hospital, Vasant Kunj, New Delhi after the accident where he was medically treated. He was admitted on 15.12.2014 and was discharged on 18.12.2014. It was averred that since the petitioner had multiple fractures therefore, he was advised rest in the hospital and after discharge also. The petitioner was bed ridden for about 60 days and was not able to move from the bed. It was contended that the petitioner was not alright till date and it appeared that he had developed permanent disability. It was alleged that the treatment of the petitioner was still continuing. The petitioner in paras 2, 4 to 6 and 13 of his affidavit Ex.PW1/A had also deposed to that effect. He deposed that he spent about Rs.55,000/ on treatment and a sum of Rs.27,000/ was reimbursed. He stated that he was hale and hearty at the time of the accident. Copy of medical documents is Ex.PW1/6 (colly), medical bills are Ex.PW1/7 (colly) and medical equipment on rent receipt is Ex.PW1/11.
20. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and as per the same the nature of injuries was opined to be grievous. The documents placed on record show that the petitioner had sustained undisplaced fracture of right inferior pubic ramus and superior part of right acetabulum and fracture of left iliac bone and left side of inferior part of sacrum. The documents also show that he remained admitted Suit No. 42/15 Page no. 15 of 33 Stephen Samuel Vs Dharmbeer & Ors.
in hospital from 15.12.2014 to 18.12.2014. Thus the injuries were grievous in nature. However there is nothing to show that the petitioner had got any disability due to the accident. In fact the petitioner was examined by the Disability Board and as per the report of the Disability Board, the petitioner had no residual permanent disability. Thus the petitioner did not sustain any disability due to the accident.
21. During crossexamination by the learned counsel for the respondents No.1 and 2 PW1 stated that he had received a sum of Rs.27,000/ out of the total sum of Rs.54,000/ of medical expenses which he had incurred. He denied the suggestion that the bills filed by him were forged and fabricated. During crossexamination by the learned counsel for the respondent No.3 PW1 stated that he had filed the original bills of treatment and medicines available with him and other bills he had handed over to the insurance company for mediclaim. He had not given the bills to the IO for verification which he had filed in the Court. He denied the suggestion that the medical bills were forged and fabricated. Thus PW1 stated that he had received a sum of Rs.27,000/ out of the total sum of Rs.54,000/ of medical expenses which he had incurred. Moreover he stated that he had handed over some of the bills to the insurance company for mediclaim. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner had filed original bills for an amount of Rs.18,403/ approximately. (one credit card receipt for Rs.10,000/ has been placed on record and though it pertains Suit No. 42/15 Page no. 16 of 33 Stephen Samuel Vs Dharmbeer & Ors.
to the period when the petitioner was admitted in the hospital and no final bill has been proved and only a photocopy of the final bill is on record, the latter shows that Rs.24,905/ was reimbursed and Rs.11,603/ would have been paid by the petitioner). Looking to the nature of the injuries the petitioner is held entitled to the amount of the bills. The petitioner would have incurred some expenses even subsequently. Accordingly an amount of Rs.20,000/ is awarded towards medical treatment and expenses including the amount of the bills.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
22. It has been held in Divisional Controller, K. S. R. T. C v Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (1969 1 All. E. R. 555) Lord Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monetary assessment."
Suit No. 42/15 Page no. 17 of 33 Stephen Samuel Vs Dharmbeer & Ors.
The case of the petitioner is that due to the accident on 14.12.2014 the petitioner sustained injuries. It was submitted that the petitioner sustained pain lower back, right hip, right leg, right ankle, laceration right lower leg, cspine non tender, unable to straighten right leg. In the discharge summary it was diagnosed as undisplaced fracture right inferior pubic ramus with fracture left iliac bone and sacrum, anterior column of right acetabulam, disruption of right S.J. Point, undisplaced fracture left iliac bone. The petitioner was removed to Fortis Hospital, Vasant Kunj, New Delhi after the accident where he was medically treated. He was admitted on 15.12.2014 and was discharged on 18.12.2014. It was averred that since the petitioner had multiple fractures therefore, he was advised rest in the hospital and after discharge also. The petitioner was bed ridden for about 60 days and was not able to move from the bed. It was contended that the petitioner was not alright till date and it appeared that he had developed permanent disability. It was alleged that the treatment of the petitioner was still continuing. It was stated that the petitioner was hale and hearty at the time of the accident. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and as per the same the nature of injuries was opined to be grievous. The documents placed on record show that the petitioner had sustained undisplaced fracture of right inferior pubic ramus and superior part of right acetabulum and fracture of left iliac bone and left side of inferior part of sacrum. The documents also show that he remained admitted in hospital from 15.12.2014 to 18.12.2014. Thus the injuries were grievous in nature. However there is nothing to show that the Suit No. 42/15 Page no. 18 of 33 Stephen Samuel Vs Dharmbeer & Ors.
petitioner had got any disability due to the accident. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2014, the petitioner is awarded Rs.25,000/ (Rs.Twenty Five Thousand only) for pain and suffering.
23. It was stated that the petitioner was 39 years old and it was so stated in the claim petition. Copy of the documents on record show that the date of birth of the petitioner is 18.1.1975. As such the petitioner would have been more than 39 years old on the date of the accident i.e. 14.12.2014. Notice can be taken of the fact that on account of the injuries sustained by him the petitioner may not have been able to perform his day to day duties towards his family and on account of the injuries suffered by him the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.10,000/ (Rs.Ten Thousand only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards loss of expectation of life or towards disfiguration. CONVEYANCE AND SPECIAL DIET
24. The petitioner in para 10 of his affidavit Ex.PW1/A had stated that he had spent a sum of Rs.10,000/ on transportation. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the Suit No. 42/15 Page no. 19 of 33 Stephen Samuel Vs Dharmbeer & Ors.
petitioner was taken to Fortis Hospital and that after discharge from hospital he might have hired the services of private conveyance as he would not have been able to drive of his own or to use public conveyance. In the circumstances a sum of Rs.5,000/ (Rs.Five Thousand only) would be just and proper towards conveyance charges.
25. The petitioner in para 10 of his affidavit Ex.PW1/A had stated that he had to depend on special diet for early recovery and he had spent a sum of Rs.350/ per day from the date of the accident on the same. Although the petitioner has not proved that he was advised special diet but looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.5,000/ (Rs.Five Thousand only) for special diet.
26. The petitioner in para 11 of his affidavit Ex.PW1/A had stated that he was not able to perform his day to day activities and hence he was constrained to hire an attendant and he was paying the attendant a sum of Rs.9,500/ p.m. He stated that he had hired the attendant for four months as he needed personal help to perform all kinds of day to day activities. Although the petitioner has not produced any evidence to show that he incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and Suit No. 42/15 Page no. 20 of 33 Stephen Samuel Vs Dharmbeer & Ors.
a sum of Rs.12,000/ is awarded towards attendant charges.
27. The petitioner had also stated that due to the accident his car was badly damaged and he had got some amount from the insurance company with whom he had insured his car. He stated that the cost of the car had been reduced to zero due to the accident. The mechanical inspection report of the car of the petitioner shows damage to it. However the petitioner has not produced any evidence to show the amount spent on the repair of the car or the amount that was reimbursed to him from his insurance company and the amount that remained to be paid or to show that the cost of the car had been reduced to zero. Accordingly the petitioner cannot be held entitled to any amount towards damage to the car. The petitioner had however filed original crane bills for an amount of Rs.2,750/. The petitioner is held entitled to the said amount.
LOSS OF INCOME
28. It is the case of the petitioner that he had done B. Com and he was working with IYOGI Technical Services Pvt. Ltd. B1, Building No.6, DLF Cyber City, Sector 2425 Gurgaon, Haryana as an accountant and was earning Rs. 47,000/ p.m. It was averred that the petitioner was not able to join the duties after the accident and had taken leave for two months from his company and for that his salary was deducted. It was submitted that the petitioner had Suit No. 42/15 Page no. 21 of 33 Stephen Samuel Vs Dharmbeer & Ors.
goodwill with the employer, hence he was doing his duties from his residence since he was not able to move and reach the working place. However, the petitioner was not able to sit for more than 1 1/2 hours. It was contended that the petitioner was not alright till date and it appeared that he had developed permanent disability. The petitioner in paras 7 and 8 of his affidavit Ex.PW1/A had also deposed to that effect. He had joined work place about 30 days prior to 18.5.2015 (date of the affidavit). Copy of B. Com degree is Ex.PW1/3, copy of compensation restructure letter by employer IYOGI is Ex.PW1/8, pay slip is Ex.PW1/9 and ID Card issued by IYOGI is Ex.PW1/10. During cross examination by the learned counsel for the respondent No.3 PW1 denied the suggestion that the employment letters and the salary certificate filed by him were false. He denied the suggestion that he had filed a false and exaggerated claim. He denied the suggestion that he had not suffered any monetary loss due to the accident. Thus only suggestions were put to PW1 which he denied.
29. The petitioner in support of his case had examined PW2 who had brought the record in his respect and copy of the appointment letter of the petitioner Stephen Samuel is Mark A, pay slips for the months of December2014 to April2015 are Ex.PW2/A (colly), statement of account showing transfer of salary is Ex.PW2/B (colly), attendance sheet showing the leaves taken by the petitioner is Ex.PW2/C (colly) and the certificate and emails allowing the petitioner to work from home are Ex.PW2/D (colly). During crossexamination by the learned counsel for the insurance company PW2 Suit No. 42/15 Page no. 22 of 33 Stephen Samuel Vs Dharmbeer & Ors.
admitted that the documents produced by him had not been prepared by him. He stated that he had personal knowledge regarding the record. He stated that the leave was marked by biometric attendance. He denied the suggestion that he had produced false and fabricated record in order to help the petitioner to gain higher compensation. PW2 had placed on record the pay slips of the petitioner for the period December, 2014 to April, 2015 and the pay slip for the month of December, 2014 shows that the gross earnings of the petitioner were Rs.48,506/. However the amount towards conveyance, medical, telephone, meal and performance incentive would not be included for computing the income of the petitioner. Further income tax would be payable. The petitioner had also placed on record a letter dated 1.10.2014 of the employer showing restructuring of the income of the petitioner but the pay slips produced are of the period after that.
30. The petitioner has not produced any document to show that he remained on bed rest for any particular period and there is nothing to show that he was advised bed rest for any particular period or that on account of the injuries sustained in the accident he was unable to work. The petitioner had stated that he had to take leave for 2 months and that he had joined office about 30 days prior to 18.4.2015. The petitioner has also placed on record documents to show that he was allowed to work from home for some period. However the pay slips placed on record by PW2 show that the petitioner received his salary even for January, February and March, 2015 and only the Suit No. 42/15 Page no. 23 of 33 Stephen Samuel Vs Dharmbeer & Ors.
performance incentive was not paid to him. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs. 70,000/ consolidated on account of loss of income.
31. There is also nothing to show that the petitioner had suffered any disability on account of the injuries and in fact the petitioner was examined by the Disability Board and the report was that the petitioner did not have any residual/ permanent disability. The petitioner has not proved that he acquired any disability on account of the accident or that he is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce his efficiency to work and thereby he would suffer loss of future income. Accordingly the petitioner cannot be held entitled to any amount on account of loss of future prospects.
The total compensation is assessed as under:
Medicines and Medical treatment Rs.20,000/ Pain and suffering Rs.25,000/ Loss of Amenities of life Rs.10,000/ Conveyance Rs.5,000/ Special Diet Rs.5,000/ Attendant charges Rs.12,000/ Crane charges Rs.2,750/ Loss of Income Rs.70,000/ TOTAL Rs.1,49,750/ Suit No. 42/15 Page no. 24 of 33 Stephen Samuel Vs Dharmbeer & Ors.
Thus the total compensation would be Rs.1,49,750/. RELIEF
32. The petitioner is awarded a sum of Rs.1,49,750/ (Rs.One Lac Forty Nine Thousand Seven Hundred and Fifty only) along with interest @ 9% per annum from the date of filing of the DAR till its realization including, interim award, if any already passed against the respondents and in favour of the petitioner. The respondent No.3 is directed to deposit the award amount directly in the bank account of the claimant in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. APPORTIONMENT OF LIABILITY:
33. The respondent No.1 is the driver, the respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. It is the case of the respondent No.3 that the respondent No.1 was not in possession of a valid and effective driving license on the date of the accident which amounted to fundamental breach of condition of policy and as such the insurance company was not liable to pay the compensation. In support of its case the respondent No.3 had examined R3W1 who deposed that as per the DAR filed by the SHO/IO in the case it was evident that Dharambeer was driving the offending vehicle which was a taxi for commercial purpose, without valid and Suit No. 42/15 Page no. 25 of 33 Stephen Samuel Vs Dharmbeer & Ors.
effective DL as he was holding a DL for LMV NT and he was also holding a learning license though he was driving the taxi for commercial purpose contrary to the terms and conditions of the policy and rules and regulations. Attested copies of the DLs are Ex.R3W1/B1 and B2 respectively. She stated that there was a clear cut breach of terms and conditions of the policy in question by the owner of the vehicle, hence the owner/driver were responsible for compensation if any arising out of the accident and the insurance company had no liability towards the same. She stated that in view of the facts and circumstances stated there was no liability against the insurance company/ respondent No.3 towards any claim arising out of the accident. She was not crossexamined on behalf of the petitioner. As such it is the contention of the respondent No.3 that though the respondent No.1 had a DL but for driving a commercial vehicle, he had only a learner's license.
34. During crossexamination by the learned counsel for the respondent No. 1 R3W1 admitted that the DL was valid upto the year 2033 volunteered only for nontransport. She denied the suggestion that the learner's license was for a commercial vehicle. She admitted that the learner's license was valid on the date of the accident. She admitted that the learner's license was valid for commercial vehicle volunteered as per the policy the vehicle could not be driven on the basis of a learner's license. She admitted that it was valid from 20.09.2014 to 19.03.2015. She denied the suggestion that the respondent No.1 had not breached the terms and conditions of the insurance policy or that the Suit No. 42/15 Page no. 26 of 33 Stephen Samuel Vs Dharmbeer & Ors.
insurance company was liable to pay the compensation. Thus R3W1 admitted that the DL was valid upto the year 2033 though only for nontransport and that the learner's license was valid on the date of the accident and that it was valid for commercial vehicle. As such it is not disputed that the respondent No. 1 had a valid DL on the date of the accident though for nontransport and further a learner's license which was valid for a commercial vehicle. R3W1 had volunteered that as per the policy the vehicle could not be driven on the basis of a learner's license, however a perusal of the policy shows that as per the 'Driver's Clause' a person holding an effective learner's license could also drive the vehicle when not used for transport of passengers at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989. In the instant case there is nothing to show that passengers were being carried in the offending vehicle at the time of the accident and as such the vehicle could have been driven on a learner's license.
35. Another requirement of the policy is that the person holding a learner's license satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules, 1989 which provides that such a person should be the holder of an effective learner's license issued to him in Form 3 to drive the vehicle, such person is accompanied by an instructor holding an effective driving license to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle and there is painted 'L'. Even the learner's license, copy of which has Suit No. 42/15 Page no. 27 of 33 Stephen Samuel Vs Dharmbeer & Ors.
been placed on record with the DAR clearly mentions that it was subject to provisions of rule 3 of the CMV Rules,1989 and that the same prohibits him from driving any motor vehicle unless he has besides him a person duly licensed to drive the vehicle and in every case, the vehicle carries "L" plates both in the front and in the rear of the vehicle. However there is nothing to show that the respondent No.1 was accompanied by an instructor or a person duly licensed to drive the vehicle at the time of the accident. Even the respondent No.1 has not stepped into the witness box to depose that he was driving under the supervision of another driver or that he had complied with the requirements of a learner's license. As such there was noncompliance of the requirements of Rule 3 Central Motor Vehicle Rules and of the conditions contained in the policy.
36. At the same time in the instant case the respondent No.1 had a valid DL and it is for the purpose of being able to drive a commercial vehicle which undisputably the offending vehicle was, he had a learner's license. In Civil Appeal No.4834 OF 2013 (Arising out of Special Leave Petition (Civil) No.5091 of 2009) S. IYYAPAN v. M/S UNITED INDIA INSURANCE COMPANY LTD. AND ANOTHER, a plea was raised by the insurance company that the driver was holding a valid driving license to drive light motor vehicle but not a taxi i.e. a commercial vehicle so it was not liable to pay the compensation but the same was negatived observing:
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"Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a license to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving license."
As such the insurance company cannot escape its liability to pay the compensation to the petitioner.
37. In S. Iyyapan's case (supra) the Hon'ble Supreme Court had observed that it is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy. It is now well settled that in such cases the insurance company would first have to satisfy the liability towards third party though it may subsequently recover the amount from the insured. The issue was considered at length by the Hon'ble High Court of Delhi in Sanjay v. Suresh Chand & Ors. F.A.O. No. 445/2000 decided on 3.8.2012 and it was observed:
"The issue of satisfying the third party liability even in case of breach of the terms of insurance policy is settled by three Judge Bench report in Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21. As per Section 149(2) of the Motor Vehicles Act (the Act), an insurer is entitled to defend the action on the grounds as mentioned under Section 149(2)(a)(i)(ii) of the Act. Thus, the onus is on the insurer to prove that there is breach of the condition of the policy. It is well settled that the breach must be conscious and willful. Even if a conscious breach on the part of the insured is established, still the insurer has a statutory liability to pay the compensation to the third party and will simply have Suit No. 42/15 Page no. 29 of 33 Stephen Samuel Vs Dharmbeer & Ors.
the right to recover the same from the insured/tortfeasor either in the same proceedings or by independent proceedings as the case may be, as ordered by the Claims Tribunal or the Court. The question of statutory liability to pay the compensation was discussed in detail by a two Judge Bench of the Supreme Court in Skandia Insurance Company Limited v. Kokilaben Chandravadan, (1987) 2 SCC 654 where it was held that exclusion clause in the contract of Insurance must be read down being in conflict with the main statutory provision enacted for protection of victim of accidents. It was laid down that the victim would be entitled to recover the compensation from the insurer irrespective of the breach of the condition of policy. The three Judge Bench of the Supreme Court in Sohan Lal Passi analyzed the corresponding provisions under the Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988 and approved the decision in Skandia. In New India Assurance Co., Shimla v. Kamla and Ors., (2001) 4 SCC 342, the Supreme Court referred to the decision of the two Judge Bench in Skandia, the three Judge Bench decision in Sohan Lal Passi and held that the insurer who has been made liable to pay the compensation to third parties on account of issuance of certificate of insurance, shall be entitled to recover the same if there was any breach of the policy condition on account of the vehicle being driven without a valid driving licence.
20. This Court in MAC APP. No.329/2010 Oriental Insurance Company Limited v. Rakesh Kumar and Others and other Appeals decided by a common judgment dated 29.02.2012, noticed some divergence of opinion in National Insurance Company Limited v. Kusum Rai & Ors., (2006) 4 SCC 250, National Insurance Company Limited v. Vidhyadhar Mahariwala & Ors., (2008) 12 SCC 701; Ishwar Chandra & Ors. v. The Oriental Insurance Company Limited & Ors., (2007) 10 SCC 650 and Premkumari & Ors. v. Prahalad Dev & Suit No. 42/15 Page no. 30 of 33 Stephen Samuel Vs Dharmbeer & Ors.
Ors., (2008) 3 SCC 193 and held that in view of the three Judge Bench decision in Sohan Lal Passi (supra) and Swaran Singh, the liability of the Insurance Company visàvis the third party is statutory. If the Insurance Company successfully proves the conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner or driver, as the case may be."
Thus if the insurance company proves conscious breach of the terms of the policy, it would be entitled to recovery rights. In the instant case the insurance company has succeeded in discharging the onus in this regard and it stands established that the respondent No.1 was not complying with the terms and conditions of the learner's license to drive a commercial vehicle and of the policy in that regard on the date of the accident and thereafter the respondents No.1 and 2 have not rebutted the same.
38. In view of the settled law the insurance company is liable qua third party though it shall be vested with the right to recover the amount of liability from the insured after depositing the compensation awarded to the third party. In the instant case the respondent No.3 shall have the right to recover the amount of compensation from the respondent No.2 who is the owner of the offending vehicle. Accordingly the respondent No.3 shall deposit the amount of compensation for which the respondent No.2 would be liable and after depositing the same shall have the right to recover the same from the respondent No.2. The respondent No.3 being the insurer is directed to deposit the award amount in the bank account of the claimant in UCO Bank, Patiala Suit No. 42/15 Page no. 31 of 33 Stephen Samuel Vs Dharmbeer & Ors.
House Court, New Delhi within 30 days of the passing of the award with interest at the rate of 9% p.a. from the date of filing of the DAR till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
39. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount. The insurer shall deposit the award amount along with interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 11.4.2016.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi.
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Copy be also sent to the concerned court and to the Learned Secretary, New Delhi District Legal Services Authority.
File be consigned to record room.
Announced in open court
on this 11th day of January, 2016 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 42/15 Page no. 33 of 33
Stephen Samuel Vs Dharmbeer & Ors.