Delhi District Court
Gur Dayal Singh vs . Yunus & Ors on 8 September, 2014
IN THE COURT OF SH. AJAY KUMAR JAIN:
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL: SOUTH
EAST DISTRICT/ SAKET COURTS: NEW DELHI
Suit No. 172/11/08
FIR No: 344/07
PS: Lajpat Nagar
UID No. 02403C0172852008
Gur Dayal Singh Vs. Yunus & ors
Injury Case
Sh. Gur Dayal Singh Verma S/o Sh. Ram Chander
R/o Village Uncha Gaon, Ballabhgarh (Haryana)
........................... Petitioner/Claimant
Versus
1. Sh. Yunus S/o Sh. Ata Ullah (driver)
R/o Village Masoori, P.S Masoori, Distt. Ghaziabad (U.P)
2. M/s. Rama Service Station (owner)
Through its partner/Manager,
road no. 56, opp. Patparganj Inds. Area
near I.S.B.T. Anand Vihar, Delhi92
3. The Bajaj Allianz General Insurance Company Limited
Issuing Office: A3, Sector4, Noida 201301.
...........................Respondents
Date of Institution : 23.02.2008 Date of reserving the judgment : 08.09.2014 Date of pronouncement : 08.09.2014
Gur dayal Singh Vs. Yunus & ors. suit no. 172/11/08 (Pg 1 of 12) Judgment:
1. A petition u/s 166/140 MV Act was filed by the petitioner.
2. Brief facts of the case are that on 20.04.2007 at around 07.15 pm, petitioner driving his two wheeler scooter alongwith his wife was going from his residence to his relative house, when reached at Lajpat Nagar flyover, near Lal Sai Mandir, offending vehicle bearing no. DL 1GB 5779 (Eicher canter) driven by Respondent no. 1 in rash and negligent manner hit the scooter of the petitioner due to which petitioner fell down and suffered grievous injuries, thereafter removed to AIIMS trauma centre.
3. An FIR No.344/2007 under Section 279/337 IPC, PSLajpat Nagar was registered on the statement of petitioner. During investigation police recorded statement of petitioner, prepared the site plan of the place of occurrence, collected MLC of the injured , seized offending canter as well as scooter of the injured, conducted their mechanical inspection, arrested respondent no.1 driver. On completion of investigation found respondent no.1 accused of rash and negligent driving, hence chargesheeted him for the commission of offence u/s 279/338 IPC.
4. During proceedings, written statement was filed by R1 and R2, main plea of R1 and R2 that accident caused due to rash and negligent driving of the petitioner and it was not caused due to any fault of R1. Insurance company in its WS admitted that offending vehicle was duly insured, however reserves its right to Gur dayal Singh Vs. Yunus & ors. suit no. 172/11/08 (Pg 2 of 12) raise statutory defences.
5. From pleadings of parties, following issues arises: (1.) Whether the petitioner received injuries in the accident which took place on 20.04.2007 at about 07.15 pm involving offending vehicle Eicher canter bearing no. DL1GB 5779 due to rash and negligent driving of respondent no.1, owned by respondent no.2, insured by respondent no. 3 ? OPP.
(2) To what amount of compensation the petitioner is entitled to claim and from whom?
(3) Relief.
6. Vide order dated 19.04.2010 interest of the petitioner was closed with effect from 13.02.2009 till the conclusion of PE. PE was closed vider order dated 08.02.2012, hence petitioner is not entitled to interest from 13.02.2009 till 08.02.2012.
7. During evidence petitioner examined himself as PW1. Insurance company examined R3W1 Anushree Datta. Driver examined R1W1 Anil Kumar, Assistant from Driving Training Institure, Murthal, and R1W2 Sh. Krishan Chand, Mechanic from Driving Training Institute, Murthal.
8. Ld. counsel for the insurance company filed written submissions. Gur dayal Singh Vs. Yunus & ors. suit no. 172/11/08 (Pg 3 of 12)
9. After hearing arguments and considering the material on record, my issue wise findings are as follows: Issue no. 1 (Negligence)
10. Petitioner PW1 aged around 61 years in his affidavit of evidence (Ex. PW1/A) categorically stated that he suffered accident due to rash and negligent driving of R1. Nothing material came in cross examination to discredit his version. His version is duly corroborated by police investigation. Police during investigation also found respondent no.1 accused of rash and negligent driving, hence chargesheeted him for commission of offence u/s 279/338 IPC. No evidence to the contrary on the factum of negligence led by driver and owner.
11. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of Hon'ble High Court of Delhi in "National Company Limited Vs. Pushpa Rana" (2009 ACJ 287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet Gur dayal Singh Vs. Yunus & ors. suit no. 172/11/08 (Pg 4 of 12) under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
12. In view of the above discussion, petitioner able to prove that he suffered injuries due to rash and negligent driving of the R1. Accordingly the issue no. 1 is decided in favour of the petitioner and against the respondents. Issue no 2 (Compensation)
13. In injury cases, the claimants are entitled to pecuniary as well as non pecuniary damages. Apex court in Raj Kumar Vs Ajay Kumar 2011 (1) SCC 343 held that compensation awarded must be "just compensation" means to the extent possible Tribunal fully and adequately restore the claimant to the position which he/she was having prior to the accident. The person is not only to be compensated for physical injury, but also for loss which he /she suffered as a result of such injury. Apex court in R.D.Hatangadi Vs Press Control (India) Pvt Ltd (1995) 1 SCC 551 held that pecuniary and non pecuniary compensation to be assessed separately. Pecuniary damages are those which the victim has actually incurred, which are capable of being calculating in terms of money, whereas non pecuniary damages are those which are not capable of being Gur dayal Singh Vs. Yunus & ors. suit no. 172/11/08 (Pg 5 of 12) assessed by arthematical calculation, however no amount of compensation can restore the physical frame of the victim, therefore object to compensate such injury is "so far as money can compensate" because it is impossible to equate money with the human suffering or personal deprivation. To compute compensation involved some guess work, some hypothetical considerations, some amount of sympathy linked with the nature of disability caused. In Nagppa Vs Gurdayal Singh 2003 (2) SCC 274 apex court observed that while calculating such damages Tribunal required to have some guess work taking into account the inflation factor.
14. In the light of aforesaid guidelines and parameters, this Tribunal has to assess the compensation to be awarded to the claimants/petitioners. Medical Expenses :
15. PW1 in his affidavit of evidence stated that after accident, he was removed to AIIMS trauma centre, thereafter shifted to Safdarjung hospital and his further treatment was conducted at Faridabad. MLC (Ex. PW1/D12) suggest that petitioner suffered grievous degloving injuries in the said accident. Discharge Summary (Ex. PW1/B2) of Dr. Nayyar's hospital shows petitioner admitted on 26.06.2007, thereafter discharged on 08.05.2007 and diagnosed to have suffered crush avulsion injury right foot, with history of accidental injury and during hospitalisation he was operated for debridement of gangrenous skin and amputation of gangrenous phallanges. Medical record clearly suggest that petitioner suffered grievous injuries due to which the amputation of phallanges took place. Petitioner for claiming medical expenses relied upon medical bills Gur dayal Singh Vs. Yunus & ors. suit no. 172/11/08 (Pg 6 of 12) (Ex.PW1/B1 colly), for a sum of Rs. 67,605/. Ld. Counsel for the petitioner also filed the summary of medical bills in this regard. Nothing found on record to dispute the genuineness of these bills. Hence, a total sum of Rs. 67,605/ is granted to the petitioner towards medical expenses.
16. Compensation for pain and suffering: Petitioner is found to have suffered grievous injuries resulting amputation of phallanges of right leg. Hence keeping in view of the nature of injuries, duration of treatment and trauma of accident, a sum of Rs. 1,00,000/is granted towards pain and suffering.
17. Loss of Income during treatment: Petitioner in his affidavit of evidence stated that at the time of accident he was doing business of jewellery, also looking after the agricultural land at the village, earning around Rs. 10,000/ per month. And due to these injuries could not attend his business and suffered a financial loss of tune of Rs. 1.5 lacs. Though petitioner has not filed any documentary evidence but it cannot be inferred that petitioner was not doing the aforesaid business. Hence keeping in view the nature of injuries and duration of treatment a lumpsum amount of Rs. 1,00,000/ is granted to the petitioner towards loss of income during treatment.
18. Compensation for Special Diet, Attendant Charges and Conveyance: Petitioner in his affidavit of evidence stated that he has spent around Rs. 30,000/ on special diet, Rs. 35,000/ on conveyance. For claiming conveyance petitioner relied upon the bills of Mahesh Tour & Travels (Ex.PW1/C1, Ex. Gur dayal Singh Vs. Yunus & ors. suit no. 172/11/08 (Pg 7 of 12) PW1/C2) for total sum of Rs. 28,400/. Ld. Counsel for the insurance company vehemently disputed these bills. These bills on the face of it do not appear credible and appears to be made at one sitting. Furthermore, petitioner has not examined any person from above Tours & Travels to prove the same. But, keeping in view the nature of injuries it cannot be inferred that petitioner has not incurred any expenses on conveyance. Petitioner has not claimed any expenses on the head of attendant charges in his affidavit of evidence, however court is obliged to grant just compensation. Keeping in view the nature of injuries and duration of treatment, a sum of Rs. 20,000/ (each) for special diet, conveyance and attendant charges are granted to the petitioner. Petitioner, thus granted a total sum of Rs. 60,000/ under present head.
19. Thus, the total compensation to which petitioner is entitled comes as under: S.No Details Amount 1 Medical Expenses Rs.67,605/ Compensation for special diet, attendant charges Rs.60,000/ 2 and conveyance 3 Compensation for pain and sufferings Rs. 2,00,000/ 4 Loss of Income during treatment Rs. 1,00,000/ Total Rs. 3,27,605/ Hence, petitioner is awarded a total amount of Rs. 3,27,605/ (Rupees three lacs twenty seven thousand six hundred and five only).
Relief :
Gur dayal Singh Vs. Yunus & ors. suit no. 172/11/08 (Pg 8 of 12)
20. The petitioner is hereby awarded a sum of Rs. 3,27,605/ (Rupees Three lacs twenty seven thousand six hundred and five only)alongwith interest @ 9% per annum from the date of filing of the present petition till the date of realization in favour of petitioner against the respondents on account of their liability being joint and several (excluding interest from 13.02.2009 to 08.02.2012)
21. R1 being driver is the principal tort feasor, R2 being owner vicariously liable for the acts of R1. R3 insurance company liable to indemnify owner.
22. Liability: R3W1 Anushree Dutt of insurance company deposed that the offending vehicle under the policy in question is an oil tanker carrying dangerous or hazardous goods, however the respondent no.1 driver though possessing heavy transport vehicle (HTV) license but not having special endorsement for carrying dangerous and hazardous goods, therefore R1 is not holding valid and effective license to drive the offending oil tanker.
Respondent driver has not examined himself however examined R1W1 Anil Kumar, Assistant from Driving Training Institute who deposed that driver Yunus Khan never took the training from 07.03.2007 to 09.03.2007, but took the training from 07.05.2007 to 09.05.2007. In cross examination this witness categorically stated that driver Yunus Khan has not undertaken training on 20.04.2007. R1W2 Kishan Chand also stated that driver Yunus was not on undertraining on 20.04.2007.
Gur dayal Singh Vs. Yunus & ors. suit no. 172/11/08 (Pg 9 of 12)
23. From the testimony of the witness of the driver R1W1 and R2W2, it is clear that driver (R1) did not possess any training certificate for driving the vehicle carrying hazardous goods on the date of accident i.e 20.04.2007. It is mandatory that driver while driving the heavy vehicle with hazardous goods should have a special endorsement for driving vehicle carrying hazardous goods, but no such endorsement was found on the DL of the respondent driver, hence insurance company able to prove its defence that driver was not holding valid and effective license to drive the present oil tanker carrying hazardous goods.
24. Ld. counsel for the driver and owner during arguments raised a plea that no such endorsement is required in present case because the oil tanker was empty having no hazardous goods inside it at the time of accident. Ld. Counsel for proving the same relied upon superdari order of the Ld. MM by which the offending vehicle was released on furnishing of Superdarinama of Rs. 10,00,000/. Ld. Counsel submits that the insured value of the vehicle as per insurance policy is 9.6 lacs. Ld. Counsel submits that in case the offending vehicle was carrying the hazardous goods then the superdarinama must be for a sum around Rs. 20,00,000/ and this itself proves the vehicle was empty at the time of accident, thus no special endorsement is required on the license of the driver. This plea cannot be taken into consideration because it was not pleaded by the respondent driver in its WS, nor led any evidence in this regard, neither confronted with this plea any of the witness examined before this court. Even otherwise no such inference of emptiness of oil tanker can't be drawn from superdarinama order of Ld. MM.
Gur dayal Singh Vs. Yunus & ors. suit no. 172/11/08 (Pg 10 of 12)
25. As discussed the driving license of the respondent driver was not effective and valid for driving the offending oil tanker at the time of accident. Furthermore owner did not led any evidence to the contrary, hence adverse inference to be drawn against the owner. Insurance company able to prove its defence that driver was not holding valid and effective driving license at the time of accident, hence entitled for recovery rights after discharging the liability within 30 days from driver and owner.
26. In view of the above discussion, insurance company is directed to deposit the award amount in the court within a period of 30 days from today alongwith the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay.
27. The award amount shall be deposited in the account of petitioner with the State Bank of India and shall be released where after to the petitioner.
28. The petitioner is directed to get their account opened at State Bank of India, Saket Branch, after receiving the copy of the award. The copy of the award shall be given to the parties. It is directed that the respondent insurance company will make an endorsement of the title of the case, suit number, name of the parties and other relevant details while depositing the cheque in the bank. The compliance be made by all concerned.
Gur dayal Singh Vs. Yunus & ors. suit no. 172/11/08 (Pg 11 of 12)
29. Copy of this order be given dasti to the parties.
30. Put up for receiving the compliance on 13.10.2014.
Announced in open Court
Dated: 08.09.2014 (Ajay Kumar Jain)
POMACT02/(South East District)
Saket, New Delhi/08.09.2014
Gur dayal Singh Vs. Yunus & ors. suit no. 172/11/08 (Pg 12 of 12)