Delhi District Court
Ram Dulare vs Pawan Sharma on 16 March, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.D249/14
Date of Institution: 07.06.2014
IN THE MATTER OF:
Ram Dulare
S/o Shri Chinta Manni
R/o RZ30/195, Gali No.14D
Durga Park, Nasir Pur
New Delhi 110024. ...Petitioner
Versus
1. Pawan Sharma
S/o Shri O.P. Sharma
R/o RZ171/17, Gali No.5
Durga Park
New Delhi110045.
2. Tata AIG General Insurance Company Ltd.
105, First Floor
DDA2, Distt. Centre
Janakpuri, New Delhi. ...Respondents
Final Arguments heard : 18.02.2015
Award reserved for : 16.03.2015
Date of Award : 16.03.2015
Suit No. D249/14 Page 1 of 30
Ram Dulare Vs Pawan Sharma & 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 18.04.2014 at about 11:00 AM, the petitioner was standing with his ERickshaw in front of House No.170/10, Gali No.4A, Durga Park. At that time, the respondent No.1 was coming with his car bearing No.HR26BW7268 from Gali No.5 and he asked the petitioner to move his Erickshaw to the side. It is averred that when the petitioner started to side his Erickshaw by walking, then the respondent No.1 suddenly drove his car speedily and caused injury to the petitioner in left leg. Thereafter the petitioner called his neighbour Mr. Dharambir Gupta who came with the wife of the petitioner and took the petitioner to DDU Hospital. It is averred that the petitioner had gone to take Mr. Surendera Kushwaha and the accident had taken place before him. It is stated that in respect of the accident FIR No. 176/14 under Sections 279/337 was registered at PS Sagar Pur. It is averred that the petitioner used to drive ERickshaw and was earning Rs.800/ to Rs. 1200/ per day. At the time of the accident the petitioner was 46 years old and was possessing sound mind and good health. He was not suffering from any ailment nor addicted to any vice at the time of accident. It is averred that the entire family of the petitioner was dependent upon him for their bread and butter. The petitioner was the only earning person of his family and due to the Suit No. D249/14 Page 2 of 30 Ram Dulare Vs Pawan Sharma & Ors.
accident the petitioner was not in a condition to drive Erickshaw for about three months. It is averred that the entire family of the petitioner had been rendered to face miseries and difficulties. It is averred that the petitioner was suffering from great mental pain, shock and agony besides financial loss due to the accident caused by the respondent No.1. It is averred that since the day of the accident, the injured had been completely bed ridden for one month and was unable to walk and also unable to do his work for about three months on account of the injuries received by him in the accident caused by the respondent No.1 and he was not in a position to attend even call of nature without assistance from the date of the accident till May, 2014. It is averred that the petitioner had spent a sum of Rs.5,745/ for medicine and Rs.500/ for XRay. It is averred that the respondents are liable to pay the compensation to the injured for being negligent while driving the offending vehicle as per M.V. Act. It is averred that the principle of res ipsa loquitor is attracted in the present case since the accident speaks in itself. It is averred that the accident had been caused solely due to the carelessness, rash and negligent driving of the respondent No.1 who was driving the offending vehicle LMV Verna CRDI No.HR 26BW7268. The respondent No.2 being the insurance company of the said vehicle is also liable to pay compensation to the petitioner. Therefore, all the respondents are jointly, severally and vicariously liable to pay the compensation to the petitioner/injured. It is averred that there is no contributing negligence on the part of the injured/petitioner and he is continuously suffering from great mental pain and agony. It is averred that the Suit No. D249/14 Page 3 of 30 Ram Dulare Vs Pawan Sharma & Ors.
petitioner was healthy, energetic, active and used to do all his work himself but due to the accident he was totally dependent upon others for one month. He was unable to perform his daily nature work without the help of assistant/servant. It is averred that the injured suffered mental tension, pain and agony, loss of income, loss of estate, loss of future benefits, prospective income, loss of other special and general damages. It is prayed that an amount of Rs.3,50,000/ be awarded as compensation in favour of the petitioner and against the respondents.
3. Reply to the DAR was filed on behalf of the respondent No.1 driver cum owner taking the preliminary objections that the respondent No.1 has a valid and effective driving license bearing No.P09112007451696 which was valid upto 06.11.2027 issued by the Licensing Authority, Janakpuri. It is averred that the FIR had been lodged against the respondent No.1 on false and fabricated grounds by the police officials. It is averred that there was no liability of the respondent No.1 to the factum of the accident. It is averred that the alleged offending vehicle bearing No.HR26BW7268 was insured with the respondent No.2 i.e. Tata AIG General Insurance Co. Ltd. having policy No.015265015500 cover note bearing No.12366670 valid from 12.09.2014. It is averred that no accident had taken place by the alleged offending vehicle driven by the respondent No.1 and the local police of PS Sagarpur in connivance with the petitioner had falsely implicated the alleged offending vehicle in the present case. It is averred that the contents of the FIR as to the negligence of the Suit No. D249/14 Page 4 of 30 Ram Dulare Vs Pawan Sharma & Ors.
driver of the insured vehicle are wrong and all the allegations as made with regard to the factum of the alleged accident and cause thereof, involvement of the insured vehicle sustained by the injured's negligence on the part of the insured vehicle were denied. It is averred that the vehicle was comprehensively insured with the respondent No.2 hence the respondent No. 2 is fully liable to pay the compensation to the injured, if the injured is entitled for any claim.
4. Reply to DAR was filed on behalf of the respondent No.2 averring that the liability of the respondent No.2 is subject to the driver and owner of the offending vehicle holding a valid and effective license at the time of accident as per the provisions of the Motor Vehicles Act. It is averred that the case is bad for misjoinder and nonjoinder of necessary and proper parties as the registered owner of the offending vehicle has not been impleaded. It is averred that the alleged owner/respondent No.1 had failed to produce the ownership documents of the offending vehicle for which he had been challaned under sections 39/192 of the M.V. Act since he was driving the vehicle without the RC in accordance with the M.V. Act. It is averred that the DAR is full of contradictions as on one hand the alleged owner has been challaned under section 39/192 M.V. Act for not producing the documents of ownership of the offending vehicle and for producing fabricated and forged vehicle search details and on the other hand the offending vehicle has been released to the alleged rightful owner vide order dated 07.05.2014 passed by the learned MM. Suit No. D249/14 Page 5 of 30 Ram Dulare Vs Pawan Sharma & Ors.
It is averred that the documents placed on record do not substantiate as to who is the actual rightful owner of the offending vehicle and hence the insurance policy that has been issued by the respondent No.2 in the name of the insured is meaningless as he has failed to show that he was the owner of the offending vehicle at the time of the accident. It is averred that the respondent No.1 had no right, title or interest to obtain the policy. It is averred that as far as the registered owner is concerned the insurance company has no privity of contract as he had not taken out the policy with the insurance company at the time of the accident, hence the insurance company is under no obligation to indemnify the respondent No.1. It is averred that the offending vehicle Hyundai Verna HR 26BW 7268 was insured in the name of Pawan Sharma vide policy No.015265015500 from 13.09.2013 to 12.09.2014 with the respondent No.2. It is averred that the accident had taken place due to the rashness and negligence of the petitioner himself.
5. From the pleadings of the parties, the following issues were framed vide order dated 05.08.2014:
1. Whether the petitioner/ injured sustained injuries in the accident which occurred on 18.04.2014 at about 11:00 hrs in front of H.No.RZ170/10, Gali No.4A, Durga Park, New Delhi caused by rash and negligent driving of vehicle No.HR26BW7268 driven and owned by respondent no.1 and insured with respondent no.2? OPP Suit No. D249/14 Page 6 of 30 Ram Dulare Vs Pawan Sharma & Ors.
2. Whether the petitioner/ injured is entitled for compensation?
If so, to what amount and from whom?
3.Relief.
6. The petitioner appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A. The bills are Ex.PW1/1, bill of XRay charges of Rs.500/ is Ex.PW1/2, XRay report and XRay are Ex.PW1/3 (colly), copy of MLC report is Ex.PW1/4, emergency/casual registration card, OPD Card and continuation sheets are Ex.PW1/5 (colly) and copy of FIR is Ex.PW1/6. PE was closed on 17.9.2014.
7. The respondent No.1 appeared in the witness box as R1W1 and led his evidence by way of affidavit which is Ex.R1W1/A. He deposed that he is the driver and owner of the alleged offending vehicle and had a valid and effective driving license bearing No.P09112007451696 which was valid upto 06.11.2027 issued by the Licensing Authority, Janakpuri. He stated that the FIR had been lodged against him on false and fabricated grounds by the police officials. He stated that he had no liability to the factum of the accident. He stated that the alleged offending vehicle bearing No.HR26BW7268 was insured with the respondent No.2 i.e. Tata AIG General Insurance Co. Ltd. having policy No. 015265015500 cover note bearing No.12366670 valid from 12.09.2014. He stated that no accident had taken place by the alleged offending vehicle driven by its driver and the local police of PS Sagarpur in connivance with the petitioner had falsely implicated the alleged offending vehicle in the present Suit No. D249/14 Page 7 of 30 Ram Dulare Vs Pawan Sharma & Ors.
case. He stated that the contents of the FIR as to the negligence of the driver of the insured vehicle were wrong and all the allegations as made with regard to the factum of the alleged accident and cause thereof, involvement of the insured vehicle sustained by the injured's negligence on the part of the insured vehicle were denied. He stated that on 18.4.2014 at Durga Park, Gali No.4 and 5 opposite House No.170/10 one Mr. Mohd. Saleem, washerman resided and he did press regularly on thela and on 18.4.2014 no accident took place. He stated that he had been falsely implicated as many times the petitioner had sought permission/ requested for allotment of space for keeping his erickshaw but he had not given the permission and with collusion of Mr. Surender Kushwaha, due to the said reason he had concocted the story and 9 days delayed FIR was lodged by PS Sagarpur. Copy of RC is Ex.R1W1/1. He was not crossexamined on behalf of the petitioner.
8. Shri Saleem was produced in the witness box as R1W2 and he deposed that on 18.04.2014 at about 1000 to 11.00 a.m. he had come out of his house after taking a bath and was getting ready to read the namaz. He stated that he heard the sound of people shouting and there were arguments going on. He started watching and after some time the persons left. He stated that he had not seen the accident taking place. He was not crossexamined on behalf of the insurance company. RE was closed on 14.1.2015. Suit No. D249/14 Page 8 of 30 Ram Dulare Vs Pawan Sharma & Ors.
9. I have heard the Learned Counsel for the petitioner as well as the Learned Counsel for the respondent No.2 and perused the record. The petitioner was also examined on 10.12.2014 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.
10. My findings on the specific issues are as under:
Issue No. 1
11. 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 Suit No. D249/14 Page 9 of 30 Ram Dulare Vs Pawan Sharma & Ors.
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."
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.
12. The case of the petitioner is that on 18.04.2014 at about 11:00 AM, the petitioner was standing with his ERickshaw in front of House No.170/10, Gali No.4A, Durga Park. At that time, the respondent No.1 was coming with his car Suit No. D249/14 Page 10 of 30 Ram Dulare Vs Pawan Sharma & Ors.
bearing No.HR26BW7268 from Gali No.5 and he asked the petitioner to move his Erickshaw to the side. It was averred that when the petitioner started to side his Erickshaw by walking, then the respondent No.1 suddenly drove his car speedily and caused injury to the petitioner in left leg. Thereafter the petitioner called his neighbour Mr. Dharambir Gupta who came with the wife of the petitioner and took the petitioner to DDU Hospital. It was averred that the petitioner had gone to take Mr. Surendera Kushwaha and the accident had taken place before him. It was stated that in respect of the accident FIR No. 176/14 under Sections 279/337 was registered at PS Sagar Pur. The petitioner had also deposed to that effect.
13. 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, copy of arrest memo and personal search memo, copy of seizure memos; copy of mechanical inspection report of the offending vehicle, copy of documents regarding the ownership of the offending vehicle and kalandra under Sections 39/192 MV Act, copy of the insurance policy of the offending vehicle and its verification report and verification report of DL of the respondent No.1 with a copy of the DL, copy of order on application for release of the offending vehicle on superdari along with a copy of the superdarinama and copies of photographs. As per the FIR No.176/14 under sections 279/337 IPC, PS Sagar Pur the case was registered on the basis of complaint of the petitioner Ram Dulare wherein he had stated about Suit No. D249/14 Page 11 of 30 Ram Dulare Vs Pawan Sharma & Ors.
the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/337 IPC and sections 39/192 MV Act.
14. The respondent No.1 had filed the written statement averring that the FIR had been lodged against the respondent No.1 on false and fabricated grounds by the police officials. It was averred that there was no liability of the respondent No.1 to the factum of the accident. It was averred that no accident had taken place by the alleged offending vehicle driven by the respondent No. 1 and the local police of PS Sagarpur in connivance with the petitioner had falsely implicated the alleged offending vehicle in the present case. It was averred that the contents of the FIR as to the negligence of the driver of the insured vehicle were wrong and all the allegations as made with regard to the factum of the alleged accident and cause thereof, involvement of the insured vehicle sustained by the injured's negligence on the part of the insured vehicle were denied. The respondent No.1 had also appeared in the witness box as R1W1 and reiterated the averments made in the written statement. He stated that on 18.4.2014 at Durga Park, Gali No.4 and 5 opposite House No.170/10 one Mr. Mohd. Saleem, washerman resided and he did press regularly on thela and on 18.4.2014 no accident took place. He stated that he had been falsely implicated as many times the petitioner had sought permission/ requested for allotment of space for keeping his erickshaw but he had not given the permission and with collusion of Mr. Surender Kushwaha, due to the Suit No. D249/14 Page 12 of 30 Ram Dulare Vs Pawan Sharma & Ors.
said reason he had concocted the story and 9 days delayed FIR was lodged by PS Sagarpur. The respondent No.1 in support of his case had produced R1W2 in the witness box who deposed that on 18.04.2014 at about 1000 to 11.00 a.m. he had come out of his house after taking a bath and was getting ready to read the namaz. He stated that he heard the sound of people shouting and there were arguments going on. He started watching and after some time the persons left. He stated that he had not seen the accident taking place.
15. During crossexamination by the learned counsel for the insurance company PW1 admitted that he knew the driver of the offending vehicle prior to the accident. He denied the suggestion that the accident took place due to his own rashness and negligence as he had wrongly parked the erickshaw on the side which he was trying to remove during the accident. He denied the suggestion that the accident did not take place due to the rashness and negligence of the offending vehicle. He denied the suggestion that he had filed a false and collusive case with the driver of the offending vehicle or that he had filed a false and exaggerated case. During crossexamination by the learned counsel for the respondent No.1 PW1 stated that the incident took place on 18.04.2014 at Durga Park, Gali No.4 and 5 at house No.170/10. He stated that at the time of the incident there were 56 persons present namely Surinder, wife of Surinder, Narinder, Dharamvir, one Gupta ji etc. Dharamvir took him to the hospital. He stated that no call was made on 100 number on Suit No. D249/14 Page 13 of 30 Ram Dulare Vs Pawan Sharma & Ors.
the date of the incident. He stated that after 23 days, the hospital staff called at 100 and thereafter, his statement was recorded by the police in the hospital but the FIR was registered on 27.04.2014. He stated that he knew Pawan Sharma for about 1 1/22 years prior to the accident. He stated that he did not have any prior dispute with him. He stated that neither Dharamvir Gupta nor Surender Kushwaha run the business of building materials. He denied the suggestion that Dharamvir Gupta was the landlord due to which he registered the present false case or that he used to park the erickshaw in front of the house of Pawan Sharma due to which he had scolded him, so he had lodged the present case.
16. It is seen that mainly suggestions were put to PW1 which he denied. He reiterated that the incident took place on 18.04.2014 at Durga Park, Gali No.4 and 5 at house No.170/10. He stated that at the time of the incident there were 56 persons present namely Surinder, wife of Surinder, Narinder, Dharamvir, one Gupta ji etc. Dharamvir took him to the hospital though none of them have been produced in the witness box. It is pertinent that PW1 stated that no call was made on 100 number on the date of the incident and that after 23 days, the hospital staff called at 100 and thereafter, his statement was recorded by the police in the hospital but the FIR was registered on 27.04.2014. It was argued on behalf of the respondents that the FIR was delayed by about 9 days and PW1 himself had stated that no call was made on 100 number on the date of the incident. However the IO has placed on Suit No. D249/14 Page 14 of 30 Ram Dulare Vs Pawan Sharma & Ors.
record a copy of the DD No.42A which is of the day of the accident itself which was received from the hospital and reference of the same was made in the FIR as well. The IO had gone to the hospital but the petitioner was not found there and thereafter the petitioner had given his statement on 26.4.2014 and not in the hospital as was sought to be contended by the petitioner. It may also be mentioned that as per the complaint of the petitioner the accident had taken place at 11.00 a.m. whereas the petitioner had gone to the hospital at 10.15 p.m. as was recorded in the MLC and the DD No.42 A is also of 10.28 p.m. Be that as it may. It has come on record that the police had information on the day of the accident itself and the MLC is also there so it cannot be said that the delay in lodging the FIR was such as would vitiate the case of the petitioner.
17. It was argued on behalf of the insurance company that the present was a collusive case as the petitioner knew the respondent No.1 prior to the accident. PW1 had stated that he knew Pawan Sharma for about 1 1/22 years prior to the accident. He admitted that he knew the driver of the offending vehicle prior to the accident and denied the suggestion that he had filed a false and collusive case with the driver of the offending vehicle. As such the petitioner had admitted knowing the respondent No.1 prior to the accident. On the other hand during crossexamination by the learned counsel for the insurance company R1W1 denied the suggestion that the claimant was known to him before the accident or that he was in collusion with the claimant. Suit No. D249/14 Page 15 of 30 Ram Dulare Vs Pawan Sharma & Ors.
However R1W1 had also deposed about the petitioner seeking permission from him to park his erickshaw several times which had been refused by him. In fact it is the case of the respondent No.1 that no such accident had taken place and he had been falsely implicated as he had refused permission to the petitioner to park his erickshaw and had objected to the same. No specific suggestion was put to R1W1 in that regard and in fact he was not even cross examined on behalf of the petitioner. However that question need not even be gone into in the present proceedings and the only point to be seen is whether the accident had taken place due to the rash and negligent driving of the offending vehicle by the respondent No.1.
18. In support of his case that no accident had taken place, the respondent No.1 had produced R1W2 in the witness box who had stated about hearing the sound of people shouting. He had stated that he had not seen the accident taking place but from that no inference can be drawn that no accident had taken place. During crossexamination by the learned counsel for the petitioner R1W2 stated that on 09.01.2015 between 10 a.m and 12 p.m. he was at home. Again said he did not remember why he did not go for reading namaz on 09.01.2015 which was also a Friday. He stated that he knew the respondent No.1 Pawan Sharma for the previous 15 years volunteered he used to come to get ironing done from him. He denied the suggestion that he had good relations with him. He denied the suggestion that he was not present at home on 18.04.2014 or that at the instance of the respondent No.1 he had Suit No. D249/14 Page 16 of 30 Ram Dulare Vs Pawan Sharma & Ors.
come to depose falsely or that on the said date he had not come out of the house to read namaz. He stated that the place where the arguments were going on was about 10 to 12 steps from his house. Thus R1W2 was extensively crossexamined on behalf of the petitioner and he stated that he knew the respondent No.1 Pawan Sharma for the previous 15 years and volunteered that he used to come to get ironing done from him though he denied the suggestion that he had good relations with him. He stated that the place where the arguments were going on was about 10 to 12 steps from his house but the testimony of R1W2 does not help the case of the respondent No.1 in showing that no accident had taken place.
19. It is thus seen that the case of the respondent No.1 is that no such accident had taken place. The mechanical inspection report of the offending vehicle is on record which does not show any fresh damage. But that would be so as it is not the case of the petitioner that the offending vehicle had hit his e rickshaw but it is his case that it had hit him. However the MLC is there which records history of RTA and DD No.42A is also on record. Further the criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under sections 279/337 IPC and sections 39/192 MV Act. 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. Suit No. D249/14 Page 17 of 30 Ram Dulare Vs Pawan Sharma & Ors.
There is nothing to disprove the involvement of vehicle No.HR26BW7268. 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.
20. It was stated that when the petitioner started to side his Erickshaw by walking, then the respondent No.1 suddenly drove his car speedily and caused injury to the petitioner in left leg. Thereafter the petitioner was taken to DDU Hospital. 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 simple. The learned counsel for the petitioner had argued that the injuries were grievous in nature and the petitioner had pain in his foot for 2 months. Per contra the learned counsel for the insurance company had argued that as per the MLC the injuries were simple from orthopaedic point of view and as per the Xray report there was no evidence of bony injury. It was argued that there were only certain medical prescriptions of the date of the accident and only kacha plaster was put. It was argued that the xray dated 8.6.2014 also did not show any bony injury. A perusal of the record shows that as per the MLC the nature of injuries was opined to be simple from the orthopaedic point of view. The Xray report also did not show any evidence of fresh bony injury. There is nothing to show that the petitioner remained admitted in hospital. One medicine bill of 18.4.2014 has been placed on record and apart from that no medicine bill has been filed. The petitioner had got x Suit No. D249/14 Page 18 of 30 Ram Dulare Vs Pawan Sharma & Ors.
ray done on 8.6.2014 but there is nothing to show that he was advised to get the same done and the same also does not show any bony injury. The learned counsel for the petitioner had argued that the same showed lesion and small cortical breech but there is nothing to show that the petitioner remained under continuous treatment till even 8.6.2014 and there is nothing to show that the petitioner remained under severe bodily pain during the space of 20 days after the accident or was unable to follow his ordinary pursuits and as such the injuries were simple in nature. However it stands established that the petitioner had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioner and against the respondents. Issue No.2
21. 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.
Suit No. D249/14 Page 19 of 30 Ram Dulare Vs Pawan Sharma & Ors.
MEDICINES AND MEDICAL TREATMENT
22. The case of the petitioner is that when the petitioner was moving his E rickshaw to the side on 18.4.2014, by walking, the the respondent No.1 suddenly drove his car speedily and caused injury to the petitioner in left leg. Thereafter the petitioner was taken to DDU Hospital. It was averred that at the time of the accident the petitioner was 46 years old and was possessing sound mind and good health. He was not suffering from any ailment nor addicted to any vice at the time of accident. It was averred that the entire family of the petitioner was dependent upon him for their bread and butter and the entire family of the petitioner had been rendered to face miseries and difficulties. It was averred that the petitioner was suffering from great mental pain, shock and agony besides financial loss due to the accident caused by the respondent No.1. It was averred that since the day of the accident, the injured had been completely bed ridden for one month and was unable to walk and also unable to do his work for about three months on account of the injuries received by him in the accident caused by the respondent No.1 and he was not in a position to attend even call of nature without assistance from the date of the accident till May, 2014. It was averred that the petitioner had spent a sum of Rs.5,745/ for medicine and Rs.500/ for XRay. It was averred that the petitioner was healthy, energetic, active and used to do all his work himself but due to the accident he was totally dependent upon others for one month. He was unable to perform his daily nature work without the help of Suit No. D249/14 Page 20 of 30 Ram Dulare Vs Pawan Sharma & Ors.
assistant/servant. It was averred that the injured suffered mental tension, pain and agony, loss of income, loss of estate, loss of future benefits, prospective income, loss of other special and general damages. The petitioner had also deposed to that effect. The bills are Ex.PW1/1, bill of XRay charges of Rs. 500/ is Ex.PW1/2, XRay report and XRay are Ex.PW1/3 (colly), copy of MLC report is Ex.PW1/4, emergency/casual registration card, OPD Card and continuation sheets are Ex.PW1/5 (colly). The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and as per the same the injuries were simple in nature and as observed above there is nothing to show that the injuries were grievous in nature. There is nothing to show that the petitioner had got any disability due to the accident.
23. During crossexamination by the learned counsel for the insurance company PW1 denied the suggestion that the medical bills placed on record were forged, fabricated and procured and not related to the injuries sustained due to the accident. He denied the suggestion that he had sustained only a soft issue injury/ simple injury in the accident. Thus only suggestions were put to PW1 which he denied. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner had filed one bill for an amount of Rs.5,745/ and the learned counsel for the insurance company had argued that no prescription had been brought on record for Ceflam, one of the medicines mentioned in the bill. However there is no reason to dispute the bill. The petitioner has filed bills for an amount of Rs. Suit No. D249/14 Page 21 of 30 Ram Dulare Vs Pawan Sharma & Ors.
6,245/. Looking to the nature of the injuries the petitioner is held entitled to the amount of the bills. The petitioner would incur some expenses even subsequently. Accordingly an amount of Rs.7,000/ is awarded towards medical treatment and expenses including the amount of the bills.
24. Note can also be taken of the fact that on account of the accident the petitioner may not have been able to perform his day to day duties towards his family and may not have been able to enjoy the amenities of life and would have undergone pain and suffering. No document has been placed on record regarding expenditure on conveyance, special diet or attendant charges. There is also nothing to show any expenditure on these counts. There is also nothing to show that the injuries of the petitioner were such that he might have to incur extra expenditure on special diet or attendant charges. However it can be taken note of that he might have had to spend some amount on conveyance. LOSS OF INCOME
25. It is the case of the petitioner that he used to drive ERickshaw and was earning Rs.800/ to Rs.1200/ per day. At the time of the accident the petitioner was 46 years old and was possessing sound mind and good health. He was not suffering from any ailment nor addicted to any vice at the time of accident. It was averred that the entire family of the petitioner was dependent upon him for their bread and butter. The petitioner was the only earning person Suit No. D249/14 Page 22 of 30 Ram Dulare Vs Pawan Sharma & Ors.
of his family and due to the accident the petitioner was not in a condition to drive Erickshaw for about three months. It was averred that the entire family of the petitioner had been rendered to face miseries and difficulties. It was averred that the petitioner was suffering from great mental pain, shock and agony besides financial loss due to the accident caused by the respondent No.
1. It was averred that since the day of the accident, the injured had been completely bed ridden for one month and was unable to walk and also unable to do his work for about three months on account of the injuries received by him in the accident caused by the respondent No.1 and he was not in a position to attend even call of nature without assistance from the date of the accident till May, 2014. It was averred that the petitioner was healthy, energetic, active and used to do all his work himself but due to the accident he was totally dependent upon others for one month. It was averred that the injured suffered loss of income, loss of estate, loss of future benefits, prospective income, loss of other special and general damages. The petitioner had also deposed to that effect. However the petitioner has not placed on record any document to show how much amount he was earning at the time of the accident.
26. During crossexamination by the learned counsel for the insurance company PW1 stated that he had studied upto high school. He stated that he had not brought any documentary proof to show that he had studied up to high school. He denied the suggestion that he had not studied upto high school. He Suit No. D249/14 Page 23 of 30 Ram Dulare Vs Pawan Sharma & Ors.
stated that he had not brought the RC of the erickshaw that he was moving at the time of the accident. He denied the suggestion that he did not ply e rickshaw and he was not earning Rs.800/ to 1,200/ per day. He stated that he did not pay any income tax. PW1 denied the suggestion that he was not completely bed ridden for one month. He denied the suggestion that he was able to work immediately after the accident. Thus PW1 stated that he had studied upto high school though he had not brought any documentary proof to show that he had studied up to high school. He stated that he had not brought the RC of the erickshaw that he was moving at the time of the accident. He also stated that he did not pay any income tax. As such there is nothing on record to show the educational qualifications of the petitioner or even to show how much amount the petitioner was earning. Though there is nothing to even show what the petitioner was doing at the time of the accident it is pertinent that the accident had taken place when he was moving his Erickshaw. However the petitioner has not produced any RC of the Erickshaw and there is even nothing to show that the Erickshaws were regularized at the time of the accident. During examination by the Tribunal the petitioner stated that he was 46 years old. He stated that he was driving an Erickshaw at the time of the accident and was earning Rs.1,000/ per day and at present he was not doing anything. But there is nothing to show his income.
27. The petitioner has also not produced any document to show that he remained on bed rest for any particular period and there is nothing to show Suit No. D249/14 Page 24 of 30 Ram Dulare Vs Pawan Sharma & Ors.
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 or to show the period for which he was not able to work. During crossexamination by the learned counsel for the insurance company PW1 denied the suggestion that he was not completely bed ridden for one month. He denied the suggestion that he was able to work immediately after the accident. The petitioner had stated that he was not able to work for three months and during examination by the Tribunal the petitioner had stated that at present he was not doing anything. However there is nothing to show that the same was on account of the injuries sustained in the accident. In the absence of any specific advice of the doctor notice can be taken of the fact that the petitioner may not have been able to perform his avocation for some period on account of the injuries sustained in the accident. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs.8,000/ consolidated on account of loss of income.
28. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. 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.
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29. In the facts and circumstances of the case and in view of the above discussion a lump sum amount of Rs.20,000/ would be just and reasonable. Accordingly an amount of Rs.20,000/ is awarded as compensation in favour of the petitioner.
RELIEF
30. The petitioner is awarded a sum of Rs.20,000/ (Rs.Twenty Thousand 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.2 is directed to deposit the award amount directly in the court by way of crossed cheque/ demand draft 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:
31. The respondent No.1 is the driver of the offending vehicle and the respondent No.2 is the insurer of the offending vehicle. The respondent No.1 was also stated to be the owner of the offending vehicle. The learned counsel for the insurance company had argued that the ownership of the offending vehicle was not proved and the ownership documents were not shown and the respondent No.1 was challaned for the offences under Sections 39/192 MV Act. A perusal of the record shows that as per the Suit No. D249/14 Page 26 of 30 Ram Dulare Vs Pawan Sharma & Ors.
verification report of the RC of the offending vehicle the same was registered in the name of Devender Singh and NOC was issued R.A. Ballabhgarh whereas per the report from the Registering Authority, Ballabhgarh, the NOC was not recorded there till 5.5.2014. The IO had placed on record a copy of the kalandra under Sections 39/192 MV Act which also records the same and that the respondent No.1 had produced a Vehicle Search Details Form and as the ownership was not verified the respondent No.1 was challaned for the offence under Sections 39/192 MV Act. The Vehicle Search Details Form mentions the name of the respondent No.1 as the owner and the vehicle was financed by HDFC Bank Ltd. and it also shows that the vehicle was insured with United Insurance Company till 26.1.2015.
32. During crossexamination by the learned counsel for the insurance company R1W1 stated that he had submitted his DL along with vehicle search details to the IO after the accident. The said vehicle search details are exhibited as Ex.R1W1/R2. He stated that the said document was provided by HDFC Bank with whom the vehicle was financed. He did not know whether the vehicle was already insured or not since he had bought a used car. He stated that the said car was got insured with Tata AIG by the car dealer namely Sandeep Anand, Prime Car Consultant when he had bought the said vehicle. He stated that he was not aware whether the car was already insured with another insurance company United India Insurance Co. Ltd. for the period 27.01.2014 to 26.01.2015. He stated that the said vehicle was in his name in Suit No. D249/14 Page 27 of 30 Ram Dulare Vs Pawan Sharma & Ors.
the RC when the accident took place. He denied the suggestion that he was not the owner and the RC was not in his name at the time of the accident. He denied the suggestion that he was facing prosecution under Section 39 and 192 of the M. V. Act for not having been able to produce the ownership documents to the IO at the time of the accident. Thus R1W1 stated that he had submitted his DL along with vehicle search details to the IO after the accident which is also as per the record and he stated that the said document was provided by HDFC Bank with whom the vehicle was financed. He reiterated that the said car was got insured with Tata AIG by the car dealer namely Sandeep Anand, Prime Car Consultant when he had bought the said vehicle and he was not aware whether the car was already insured with another insurance company though as per the Vehicle Search Details Form the vehicle was insured with United Insurance Company. It is pertinent that he stated that the said vehicle was in his name in the RC when the accident took place and a copy of the RC was also placed on record which is Ex.R1W1/1. The signatures on the same show that the same is dated 12.9.2014 that is subsequent to the date of the accident. However that would not end the liability of the respondent No.2 as the vehicle was duly got insured by the respondent No.1 with the respondent No.2 and the copy of the policy is on record and the insurance company had also sent a copy to the financier, copy of which is on record.
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33. In view of the above the respondents No.1 and 2 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.2. Respondent No.2 i.e. Tata AIG General Insurance Co. Ltd. being the insurance company in its reply had admitted that the offending vehicle Hyundai Verna HR 26BW 7268 was insured in the name of Pawan Sharma vide policy No.015265015500 from 13.09.2013 to 12.09.2014 with the respondent No.2. There is no evidence on behalf of the respondent No.2 to show that there was any violation of the rules and terms of policy by the respondent No.1 and in fact the duly verified documents regarding the offending vehicle were placed on record by the IO with the DAR and the issue of ownership has been discussed above. Hence, the respondent No.2 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondent No.1. The respondent No. 2 being the insurer is directed to deposit the award amount in the court by way of crossed cheque/ demand draft within 30 days of the passing of the award with interest at the rate of 9% 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.
34. 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 his complete address as well as address of his counsel for sending the notice of deposit of Suit No. D249/14 Page 29 of 30 Ram Dulare Vs Pawan Sharma & Ors.
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 8.7.2015.
An attested copy of the award be given to the parties (free of cost). File be consigned to record room.
Announced in open court
on this 16th day of March, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
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Ram Dulare Vs Pawan Sharma & Ors.