Delhi District Court
Shri Amarjeet Singh vs Shri Om & Ors. Page No. 1 Of 88 on 30 August, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No. 65/14
Date of Institution: 16.02.2008
IN THE MATTER OF:
Shri Amarjeet Singh
S/o Shri Balkar Singh
R/o H. No. 243/13, Govindpuri
Kalkaji
New Delhi 110019. ...Petitioner
Suit No.67/14
Date of Institution: 16.2.2008
IN THE MATTER OF:
Smt. Kulwant Kaur
W/o Shri Balkar Singh
R/o H. No. 243/13, Govindpuri
Kalkaji
New Delhi 110019. ...Petitioner
Suit No.68/14
Date of Institution: 16.2.2008
IN THE MATTER OF:
Shri Balkar Singh
W/o Shri Vir Singh
R/o H. No. 243/13, Govindpuri
Suit No.65/14, 67/14 & 68/14
Amarjeet Singh Vs. Shri Om & Ors. Page No. 1 of 88
Kalkaji
New Delhi 110019. ...Petitioner
Versus
Common Respondents
1. Shri Om
S/o Shri Dharam Singh
R/o H. No. 218
Village Nanglisakrawati
Najafgarh
New Delhi - 110043. (Driver cum owner of Vehicle No.HR55C5780)
2. National Insurance Company Ltd.
First Floor, B18, Community Centre
Janakpuri
New Delhi - 110058. (Insurer of Vehicle No.HR55C5780)
3. Shri Arun Mehta
C/o Mehta Transport Company
Circle Road, Gidderbaha
Muktesar
Punjab - 152101 (Owner of Vehicle No.PB29A9762)
4. Shri Harphool Singh
S/o Shri Mithu Singh
R/o Village Gidderbaha
District Muktesar
Punjab. ...Respondents
Suit No.65/14, 67/14 & 68/14
Amarjeet Singh Vs. Shri Om & Ors. Page No. 2 of 88
Final Arguments heard : 11.08.2014
Award reserved for : 30.08.2014
Date of Award : 30.08.2014
AWARD
1. Vide this judgmentcumaward, I proceed to decide three petitions filed
u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate
(hereinafter referred to as the Act) for grant of compensation arising out of the
same road accident.
2. It is the case of the petitioners that on 26.10.2007, the petitioners along
with other family members and relatives namely Ms. Kamalpreet Kaur, D/o
Shri Balkar Singh, aged about 20 years, Mr. Sabah Singh, S/o Shri Ram
Singh, aged about 24 years, Shri Raghbir Singh, S/o S. Gopal Singh, aged
about 42 years, Shri Darshan Singh, S/o S. Arur Singh, aged about 65 years,
Shri Jagjeet Singh, S/o S. Meher Singh, aged about 40 years, Mrs. Rupinder
Kaur, W/o Shri Jagjeet Singh, aged about 35 years, visited Lahori Village,
Hissar, Haryana for performing the religious Sukhmani Path. It is averred that
they were travelling in a Tavera having registration No.DL4CAD1586 which
was driven by the petitioner Amarjeet Singh. After performing the religious
path in Lahori Village, Hissar, Haryana, they were returning to their place of
residence at Govindpuri, New Delhi in the night of 26.10.2007. At around 2.30
a.m. of the intervening night of 26.10.2007 and 27.10.2007, when their Tavera
Suit No.65/14, 67/14 & 68/14
Amarjeet Singh Vs. Shri Om & Ors. Page No. 3 of 88
vehicle reached near BLS University, Jakhoda Village, Sadar Bahadurgarh,
Distt. Jhajjar, Haryana, their vehicle was first hit on the right side by the
offending vehicle Mini Tata Truck bearing registration No.HR55C5780 driven
by Shri Om. Then the second vehicle Truck Ashok Ley Land bearing
registration No. PB29A9762 which was coming from the opposite side also
hit the vehicle of the petitioners. The vehicle in which the petitioners were
travelling turned upside down due to the impact of the accident, as a result of
which all the occupants of the vehicle received severe injuries of different
nature. It is averred that the drivers of the offending vehicles ran away from the
scene fearing immediate action against them. With the help of the people over
there, the petitioners and other occupants of the vehicle were taken to Delhi
Medical and Nursing Home, Bahadurgarh for their treatment. However, due to
the seriousness of the injuries suffered by the petitioners Amarjeet Singh and
Balkar Singh and other family members, they were sent to AIIMS, New Delhi
by an Ambulance after first aid. Their case was referred to Safdarjung
Hospital, New Delhi from where they were shifted to Batra Hospital and
Medical Research Centre, M. B. Road, New Delhi for the treatment. While the
Batra Hospital admitted the petitioner Amarjeet Singh to ICU immediately on
27.10.2007 keeping in view the seriousness of the injuries received by him, the
others were discharged after receiving first aid. It is stated that in respect of
the accident FIR No.295/2007 was registered at PS Sadar Bahadurgarh,
District Jhajjar.
Suit No.65/14, 67/14 & 68/14
Amarjeet Singh Vs. Shri Om & Ors. Page No. 4 of 88
Facts of Suit No.65/14
3. It is stated that the right hand of the petitioner Amarjeet Singh below the elbow was operated upon and finally had to be amputated to save the life of the petitioner. It is averred that the petitioner was discharged from the hospital on 29.10.2007 with a clear direction to report for dressing etc, on week to week basis. The treatment of the petitioner was still continuing and would continue for another two months till the wounds are healed up. It is averred that orthopaedicians have been consulted by the family members of the petitioner for fixing artificial limb on the amputated part of the petitioner's right hand. According to the estimate given by the Doctors the same involves Rs. 5,00,000/ to Rs.9,00,000/ in India and if the same exercise is undertaken abroad, the same would cost around Rs.16,00,000/ approximately. It is averred that the petitioner's family has already spent more than Rs.50,000/ towards the treatment of the petitioner who has suffered permanent disability due to the accident that took place in the intervening night of 26.10.2007 and 27.10.2007. It is averred that the petitioner is a 19 years old boy and is engaged in his father's business of supplying gas cylinders to the Gas Agencies in Delhi and is earning Rs.5,000/ per month. The family members of the petitioner belong to Sikh Religion and are involved in spreading the religious message by performing Sukhmani Path in Northern Parts of India. It is averred that all the family members of the petitioner and their relatives are engaged in the said religious act. It is averred that on account of the nature of disability suffered by the petitioner, he claims an amount of Rs.50,00,000/ as Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 5 of 88 compensation towards present and future treatment, mental agony, harassment, future loss of income and also bleak chances of marriage because of the permanent disability etc. and all the respondents are jointly and severally liable for the same. It is stated that as per the information of the petitioner the offending vehicle bearing No.PB29A9762 had no valid insurance policy at the time of the accident. It is prayed that an amount of Rs. 50,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
Facts of Suit No.67/14
4. It is the case of the petitioner Kulwant Kaur that she is a 43 year old married lady and a house wife fully occupied in looking after the wellbeing of the family comprising of her husband and children and earning Rs. 3,000/ p.m. It is stated that the petitioner injured her head and also received bodily injuries of minor nature. It is averred that although the petitioner was discharged from the hospital after receiving the necessary treatment for her minor bodily injuries, yet she started complaining of pain in her head very frequently. It is averred that because of the frequency of the pain because of the injury received by the petitioner she consulted Homeopathy and Ayurvedic doctors in New Delhi and presently she was under the treatment of Ayurvedic doctor. It is averred that approximately Rs.12,000/ had already been spent for the treatment of the petitioner for the injuries she received due to the accident Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 6 of 88 that took place in the intervening night of 26.10.2007 and 27.10.2007. It is prayed that an amount of Rs.3,00,000/ be awarded as compensation in favour of the petitioner and against the respondents for treatment of injuries, conveyance charges, mental agony, harassment and loss of savings etc. Facts of Suit No.68/14
5. It is the case of the petitioner Shri Balkar Singh that he is a 48 year old businessman having a family to look after and is engaged in the business of transportation of gas cylinders to the dealers and is earning Rs.30,000/ p.m. It is averred that at Batra Hospital the injury received by the petitioner was detected to be a fracture on the toe line of the right foot. It is averred that after Xray the petitioner was discharged from the hospital on 27.10.2007 and on the advice of his wellwishers, the petitioner went for Ayurvedic (desi) treatment of his injury suffered due to the accident from a Naturopathy Treatment Centre at Bhogal, Ashram Chowk, New Delhi for massage and healing. It is averred that the treatment of the petitioner is still continuing and would continue for another two months till the toe line bones are set. It is averred that the petitioner had already spent more than Rs.30,000/ towards his treatment of the injury suffered due to the accident that took place in the intervening night of 26.10.2007 and 27.10.2007. It is prayed that an amount of Rs.10,00,000/ be awarded as compensation in favour of the petitioner and against the respondents towards medical treatment of the injuries, Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 7 of 88 conveyance/transportation charges, loss of income both present and future, mental agony and other incidental expenditure etc.
6. Written statement was filed on behalf of the respondent No.1 taking the preliminary objections that the petitioners had not come before the court with clean hands and had suppressed the basic and material facts from the court wilfully and deliberately. It is averred that the accident in question took place not in the manner stated in the petition but the true facts resulting in the accident are that the respondent No.1 was coming back from Rohtak after delivering the goods at Rohtak. The respondent No.1 was driving his vehicle with all due care after observing all the traffic rules at a normal speed. The vehicle of the petitioners was behind the vehicle of the respondent No.1 which was admitted by the petitioners. It is averred that the vehicle driven by the respondent No.4 bearing registration No.PB29A9762 was coming from the opposite direction, which hit the right hand side of the vehicle driven by the respondent No.1 and after the impact the respondent No.1 went off the road on the left hand side and fell in a 'Khadd'. It is averred that in the meanwhile, the truck Ashok Leyland driven by the respondent No.4 came to a halt on the right hand side of the road and before the petitioner Amarjeet could stop his vehicle he came and hit the vehicle of the respondent No.4. It is averred that it is apparent that the petitioner's vehicle actually collided with the vehicle driven by the respondent No.4 and not with the vehicle driven by the respondent No.1. It is averred that the amount claimed is highly exorbitant qua the nature of the Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 8 of 88 injury sustained by the petitioners. It is averred that the petitioners along with the respondents No.3 and 4 have manipulated the FIR for seeking undue advantage from the respondent No.1, whose vehicle never touched the vehicle of the petitioners nor it caused any accident with the vehicle of the petitioners and it is the respondent No.1 who is entitled to claim compensation from the respondents No.3 and 4, whose vehicle caused the accident with the vehicle of the respondent No.1 and the petitioners, which not only caused damage to the vehicle of the respondent No.1 but also caused bodily injury to the respondent No.1 and his conductor.
7. The averments made in the claim petition were denied. It is averred that the injuries sustained are very minor and the compensation claimed is exorbitant. It is averred that the mode of accident described is totally false, frivolous and the same had not occurred in the manner stated. It is denied that the respondent No.1 ran away from the site and it is stated that due to the fall into the khadd of the vehicle driven by the respondent No.1 after the impact by the vehicle driven by the respondent No.4, the doors of the vehicle got jammed and the local people of the locality had to cut open the doors in order to take out the respondent No.1 and his conductor from the vehicle. It is averred that the respondent No.1 had also sustained injuries on his body. It is averred that the petitioner Amarjeet himself had admitted that he was discharged from the hospital on 27.10.2007, meaning thereby that he had not sustained any severe injury on the same day. It is stated that the petitioner Amarjeet had further Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 9 of 88 averred that on the advice of wellwishers he approached the Ayurved Desi Treatment from a Naturopathy Treatment Center at Bhogal, Ashram Chowk, New Delhi and there was no averment to the effect that the petitioner had received any severe injury. It is averred that it is apparent from the petition itself that the injury alleged had not occurred on account of the accident. It was averred that the petitioner Kulwant Kaur herself had admitted that she had received only minor bruises and she was accordingly after being given first aid discharged on the same day and it was beyond comprehension that for mere bruises a sum of Rs.12,000/ would have been spent by the petitioner. It is averred that the petitioner Balkar Singh had himself admitted that he was discharged from the hospital on 27.10.2007, meaning thereby that he had not sustained any severe injury on the same day and there was no averment to the effect that he had suffered any severe injury. It is averred that it was apparent from the petition itself that the injury alleged had not occurred on account of the accident and nothing was stated by the petitioner as to when and how and in what manner he had gone for the Naturopathy treatment. It is averred that as per the averments made in the petition of Smt. Kulwant Kaur it is apparent that initially the injured were taken to AIIMS therefore what expenses had been incurred by them was highly doubtful.
8. Replication was filed on behalf of the petitioners denying the averments made in the written statement of the respondent No.1 and reiterating and reaffirming the averments made in the claim petition. It is stated that there is Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 10 of 88 no admission on the part of the petitioners that the vehicle in which the petitioners and their family members were travelling was behind the offending vehicle driven by the respondent No.1 when the accident took place. It is averred that the offending vehicle driven by the respondent No.1 was behind the vehicle in which the petitioners and their family members were travelling and the respondent No.1 who was driving the offending vehicle in a very high speed while trying to overtake the vehicle of the petitioners hit the same on its right. The second offending vehicle hit the right side of the offending vehicle driven by the respondent No.1 and then hit the vehicle of the petitioners, as a result of which the vehicle of the petitioners turned upside down, causing injuries to all the occupants of the petitioners' vehicle. The mode of accident as suggested/ alleged by the respondent No.1 was disputed.
9. Written statement was filed on behalf of the respondent No.2 taking the preliminary objections that the petition is bad for nonjoinder of necessary parties as the owner and insurer of the Tavera No.DL4CAD1586 allegedly involved in the accident, had not been impleaded in the petition. It is averred that the respondent No.2 is not liable to pay any compensation to the petitioners in case the driver of the alleged offending vehicle was not holding a valid and effective driving license and/or there was no valid and effective permit in respect of the vehicle at the time of the alleged accident in which case the owner/ insured of the alleged offending vehicle would be liable to pay the compensation amount, if any, awarded. It is averred that the respondent Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 11 of 88 No.2 is not liable to pay any amount of compensation to the petitioners in case there is any collusion between the insured and the petitioners or it is proved that the injured and/ or the drivers of the other vehicles were solely negligent and responsible for the alleged accident. The averments made in the claim petition were denied. It is averred that the amount claimed is highly excessive, exorbitant and without any basis. It is averred that the respondent No.1 got the vehicle No.HR55C5780 insured with the respondent No.2 by alleging himself to be the owner of the vehicle. It is stated that the policy No. 361801/31/07/6300001065 was issued by the respondent No.2 in the name of Shri Om, respondent No.1 for the period from 15.04.2007 to 14.04.2008 in respect of vehicle No.HR55C5780. It is stated that the averments made regarding the manner of the accident are false, frivolous and without any basis and have been made just to claim compensation from the respondent No. 2.
10. Replication was filed on behalf of the petitioners denying the averments made in the written statement of the respondent No.2 and reiterating and reaffirming the averments made in the claim petition. It is denied that there is any collusion between the petitioners and the respondents. It is averred that the petitioners received the injuries due to the negligence of the respondent No.1, the insured of which the respondent No.2 is the insurer and as such the respondent No.2 is jointly and severally liable for the compensation.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 12 of 88
11. Written statement/ reply was filed on behalf of the respondents No.3 and 4 making the preliminary submissions that the petition does not disclose any cause of action against the respondents No.3 and 4. It is averred that the petitioners have not approached the court with clean hands and have deliberately suppressed the true and material facts from the court. It is averred that the alleged accident had been caused neither by the respondent No.4 nor by the vehicle of the respondents No.3 and 4. It is averred that in the night of 26.10.2007 there was an accident between the vehicle of the petitioners and a mini truck HR55C5780 near BLS University, Jakhoda. It is averred that the petitioner's vehicle was hit by the mini truck, due to the force and impact of the collision, the mini truck and vehicle of the petitioners both lost their control and came towards the vehicle of the respondent No.3 PB29A9762 which was coming from the opposite side and was being driven at a very safe and moderate speed by the driver the respondent No.4. It is averred that the vehicle of the respondents No.3 and 4 was first hit by the offending vehicle i.e. mini truck and because of the side on collision the vehicle turned turtle to its side and came to a stand. It is stated that the vehicle of the petitioners was lucky to go to the other direction and was just miraculously saved from colliding with the container of the respondents No.3 and 4 and if it had collided with the falling canter, the tragedy could be far more than what happened to the petitioners and the other passengers. It is averred that the driver respondent No.4 got injuries and the vehicle also got severely damaged. It is averred that there was no fault on the part of the respondent No.4, he was at Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 13 of 88 no fault and the accident happened because of the fault of the respondent No. 1 and the driver of the vehicle of the petitioners. It is averred that it was the respondents No.3 and 4 who suffered injuries and loss of property because of the rash and negligent acts of the driver of the vehicle of the petitioners and the respondent No.1. It is averred that the claim of the petitioners is highly exorbitant, excessive and without any basis. The averments made in the claim petition were denied. It is averred that the FIR was lodged by the complainant against the respondent No.4 in collusion with the police authorities and other offenders/ respondents with the sole purpose of extorting money from the respondents No.3 and 4.
12. Replication was filed on behalf of the petitioners denying the averments made in the written statement of the respondents No.3 and 4 and reiterating and reaffirming the averments made in the claim petition. It is averred that the respondents No.3 and 4 have cooked up facts to escape the liability which they were otherwise bound to discharge as per the law of the land.
13. An application was filed on behalf of the petitioners for impleadment and deletion of respondent No.3 which was allowed vide order dated 16.7.2009 of my learned predecessor and the name of Lal Singh who was initially impleaded as respondent No.3 was deleted from the array of parties and Shri Arun Mehta was impleaded as respondent No.3 in place of Lal Singh. Vide order dated 8.1.2010 of my learned predecessor the respondents No.3 Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 14 of 88 and 4 were proceeded exparte and their defence was struck off. From the pleadings of the parties, the following issues were framed by my learned predecessor vide order dated 24.02.2010:
1. Whether the accident took place due to rash and negligent driving of driver of Tata Truck HR55C5780, Goods carrier owned and driven by Sri Om on the night of 26/27 October, 2007? OPP
2. To what amount of compensation is the petitioner entitled to and from whom?
3. Relief.
14. Vide order dated 26.4.2010 the respondents No.3 and 4 were allowed to join the proceedings subject to cost. The order sheets also record that the respondent No.2 was exparte. Vide order dated 18.1.2011 it was held that the respondents No.3 and 4 were proceeded exparte but subsequently were permitted to join the proceedings vide order dated 26.4.2010 subject to cost which had also not been paid and they had also not appeared so they continued to be exparte since the order permitting them to join the proceedings was a conditional order. Vide order dated 4.11.2011 of my learned predecessor the IO was summoned with the verification report of the permit of the offending vehicle. The matter was also listed for conciliation but the same could not succeed.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 15 of 88
15. By order dated 25.4.2012 of my learned predecessor the issues framed on 24.02.2010 were amended as follows:
1. Whether the accident occurred on 26 or 27.10.2007 at around 2.30 a.m. near BLS University, NH 10, Jakhoda, Bahadurgarh, PS Sadar Bahadurgarh, Distt. Jhajjar, Haryana caused by rash and negligent driving of vehicle No.TATA Truck No.HR55C5080, goods carrier owned and driven by respondent no.1, insured with respondent no.2 and/or a truck Ashok Leyland bearing no.PB29A9762 owned by respondent no.3 and driven by respondent no.4? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
The learned counsel for the petitioners also submitted that the evidence of the petitioners filed by affidavit dated 14.2.2008 may be withdrawn which was allowed vide order dated 25.4.2012. Vide order dated 14.2.2013 of my learned predecessor it was directed that the petitioners shall not be entitled to any interest on the award, if any from the date of framing of issues i.e. 25.4.2012 till the date of the award. Vide order dated 12.11.2013 of my learned predecessor the respondent No.1 was proceeded exparte. Vide order of said date the suits No.65/14, 66/14 and 67/14 (earlier bearing No.628/11/08, 627/11/08 and 626/11/08) were consolidated for the purpose of recording of RE and decision Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 16 of 88 since they arise out of the same accident and the present suit No.65/14 was treated as the lead case. Vide order dated 8.5.2014 RE was closed. Thereafter an application under order 9 rule 7 CPC was filed on behalf of the respondents No.3 and 4 for setting aside the order dated 8.5.2014 and to lead evidence which was allowed vide order dated 4.8.2014 and the respondents No.3 and 4 were given one opportunity to lead their evidence.
16. The petitioner Amarjeet entered into 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 stated that he is holding a valid driving license issued by the competent authority copy of which is Ex.PW1/1. He stated that FIR No.295/2007 was registered at Sadar Bahadurgarh Police Station upon reporting of the incident by Sardar Jagjit Singh who was also travelling with them. He stated that their vehicle met with an accident due to the negligence of the driver/ owner of the offending vehicles bearing registration No.HR55C5780 and PB29A9762 causing severe damage to the vehicle, besides causing severe bodily injuries to him resulting in the amputation of his right hand above the elbow. He stated that he was discharged from the hospital after 3 days on 29.10.2007 and thereafter he was advised to come for regular and periodic check up to the hospital which continued till January, 2008. He stated that he applied for the disability certificate from the competent authority i.e. Medical Superintendent, Lok Nayak Hospital, Government of NCT of Delhi and the same was granted in his favour on 6.6.2008. He stated Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 17 of 88 that with the advice of the doctors he had been fitted with a digital artificial limb which had been purchased at a cost of Rs.8,10,000/ and he had paid a further sum of Rs.13,500/ on 15.10.2009 for repairing charges of the artificial limb. He stated that approximately Rs.10,00,000/ had been spent on his medical treatment including the artificial limb and as per the advice the artificial limb requires maintenance of Rs.10,000/ to Rs.15,000/ per year. He stated that the injury suffered by him had resulted in permanent disability. Copy of criminal record is Mark A, two photographs are Ex.PW1/2 and Ex.PW1/3, copy of discharge summary of Batra Hospital and Medical Research Centre, OPD cards and prescriptions are Ex.PW1/4 (colly), bills are Ex.PW1/5 (colly), copy of disability certificate is Mark B, letter dated 18.01.2008 issued by Otto Bock is Ex.PW1/6, receipt issued by Otto Bock is Ex.PW1/7, invoice issued by Otto Bock is Ex.PW1/8 and invoice issued by Otto Bock is Ex.PW1/9.
17. Dr. Anita Bangotra, Deputy Medical Superintendent, Lok Nayak Hospital appeared in the witness box as PW2 and deposed that she was the Chairperson of the Disability Board which had examined the patient Shri Amarjeet Singh, S/o Shri Balkar Singh. Copy of the disability certificate is Ex.PW2/1. She stated that as per the record the patient was a case of above elbow amputation (right) upper limb and he had suffered 85% permanent physical impairment in relation to right upper limb. She stated that the patient would not be able to perform the functions which require use of both hands efficiently on account of the disability.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 18 of 88
18. PW3 Shri Sourav Mahapatra, Prosthetist Orthostist, Otto Bock Health Care Center stated that the documents Ex.PW1/6 to Ex.PW1/9 were issued by his office. He stated that the document Ex.PW1/6 had been issued under the signatures of Shri Roman Jagota, Regional Manager. The documents Ex.PW1/7 to Ex.PW1/9 had been issued under the signatures of Ms. Prabhjot Kaur, Administrative Incharge. PE was closed on 3.10.2013 though thereafter PW3 was examined and PE was closed on 8.5.2014.
19. In Suit No.67/14 the petitioner Kulwant Kaur appeared in the witness box and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. She stated that her husband Shri Balkar Singh is the owner of the vehicle make Tavera, bearing registration No.DL4CAD1586, which met with an accident in the intervening ninght of 26.10.2007 and 27.10.2007 near BLS University, Bahadurgarh. She stated that at the time of the accident the vehicle in which she was travelling was driven by her son Amarjeet Singh. She stated that their vehicle met an accident due to the negligence of the driver / owner of the offending vehicles causing severe damage to the vehicle, besides causing injuries to her and other members of her family. She stated that the offending vehicle bearing registration No.HR 55C 5780 was driven by Shri Om, at the time of the accident who is also the owner of the said vehicle. The other offending vehicle bearing registration No.PB 29A 9762 owned by respondent No.3 Arun Mehta was driven by the respondent No.4 Harphool Singh at the time of the accident.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 19 of 88
She stated that when their vehicle reached near BLS University Jakhoda Village, Sadar Bahadurgarh, District, Jhajjar, Haryana, the same was first hit on the right side by the offending vehicle bearing registration No.HR 55C 5780 driven by Shri Om and then by the second vehicle bearing registration No.PB 29A 9762, which was coming from the Rohtak side. She stated that the vehicle in which she was travelling turned upside down due to the impact of the accident, causing bodily injuries to all the occupants of the vehicle and also the vehicle. She stated that she received injury on her head and the same was diagnosed to be concussion arising out of the accident for which she was advised MRI Scan by the doctor. She stated that since she continued to feel pain in her brain, she went for the Ayurvedic (desi) treatment of her injury suffered due to the accident from a Naturopathy Treatment Centre at Bhogal, Ashram Chowk, New Delhi, where she continued the treatment for about two months. She stated that she had spent more than Rs.12,000/ for treatment of her injury which she received on account of the accident that took place in the intervening night of 26.10.2007 and 27.10.2007 due to the negligence of the respondents No.1 and 4. She stated that as a result of the injury suffered by her due to the accident, she was unable to do her day to day household works and for which she had to keep a maid for almost a year at a monthly payment of Rs.3000/. Copy of voter's identity card is Ex.PW1/1, certified copy of FIR is Ex.PW1/2 and medical certificate is Ex.PW1/3.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 20 of 88
20. In Suit No.68/14 the petitioner Shri Balkar Singh appeared in the witness box and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He stated that he is a businessman by profession and has been doing the business of transportation of Gas Cylinders to the Dealers in New Delhi. He stated that his monthly income is Rs.30,000/ approximately and he files his Income Tax Returns every year and his Pan Card number is BBTPS1168N. He stated that he is the owner of the vehicle make Tavera, bearing registration No.DL 4CAD 1586. He stated that at the time of the accident his vehicle was driven by his son Amarjeet Singh, who had a valid driving licence. He stated that his vehicle met an accident due to the negligence of the driver / owner of the offending vehicles bearing registration No.HR 55C 5780 and PB 29A 9762 causing severe damage to the vehicle, besides causing multiple bodily injuries to him as reported by the doctor. Regarding the manner of the accident he deposed to the same effect as PW1 Amarjeet and PW Kulwant Kaur. He stated that an Xray of the injury was done at Dr. Joshi's Medical Centre, Govindpuri, New Delhi and he was under the treatment of Dr. Bijendra Singh at his clinic at Govindpuri. He stated that since he continued to feel pain in the fractured area, he went for Ayurvedic (Desi) treatment of his injury suffered due to the accident from a Naturopathy Treatment Centre at Bhogal, Ashram Chowk, New Delhi, where he continued the treatment of his injury for about 2 & ½ months. He stated that he had spent more than Rs.20,000/ for treatment of his injury which he received on account of the accident. He stated that as a Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 21 of 88 result of the injury suffered by him due to the accident, his business suffered as he could not do the normal business of transporting gas cylinders to the dealers in south Delhi in time which resulted in loss of income which otherwise could have been earned had he not been injured. He stated that his vehicle was insured through ICICI Lombard Insurance Policy bearing No. 3001/513443433. He stated that he had spent around Rs.4,40,000/ for repair of the vehicle against which the Insurance Company had paid a sum of Rs. 1,99,164/ vide cheque No.894382 dated 03.03.2008 against his claim No.MOT 00624913 directly to M/s. Autovikas Sales & Service (P) Ltd., 62, Rama Road, New Delhi15, where his vehicle was got repaired and the balance amount had been paid exclusively by him. Copy of voter identity card and PAN card are Ex.PW1/1 and Ex.PW1/2, certified copy of the FIR is Ex.PW1/3, medical record and prescriptions are Ex.PW1/4 and Ex.PW1/5, copy of driving license, RC and insurance policy are Ex.PW1/6 (colly), bills raised by M/s. Auto Works are Ex.PW1/7 and copy of RC of his vehicle is Mark A.
21. On behalf of the respondent No.2 Shri Shyam Singh Bisht, Assistant appeared in the witness box as R2W1 and led his evidence by way of affidavit which is Ex.R2W1/A. He stated that the company served upon the respondent No.1 being the driver cum owner of the vehicle No.HR55C5780 a notice under order 12 rule 8 CPC through their counsel and office copy of the notice under order 12 rule 8 CPC is Ex.R2W1/1 and the registered postal Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 22 of 88 receipt is Ex.R2W1/2. He stated that the notice had not been replied or complied with by the addressee. Certified true copy of the insurance policy is Ex.R2W1/3 (colly). He stated that despite the notice, the driver cum owner had failed to provide the permit of the vehicle. He stated that there was no valid and effective permit in respect of the vehicle at the time of the accident and there was violation of the terms and conditions of the insurance policy on the part of the insured, hence the respondent No.2 was not liable to pay any compensation to the petitioners. RE was closed on 08.05.2014. R2W1 was crossexamined neither by the petitioners nor by the learned counsel for the respondents No.3 and 4.
22. On behalf of the respondents No.3 and 4, the respondent No.4 appeared in the witness box as R4W1 and led his evidence by way of affidavit which is Ex.R4W1/A. He deposed that he was the driver of one of the offending vehicles Ashok Leyland PB 29A 9762. He stated that in the night of 26.10.2007 there was an accident between the vehicle of R4W1 and a mini truck HR55C5780 near BLS University, Jakhoda. He stated that after their collision, due to the force and impact of the collision, the mini truck and vehicle of the petitioners both lost their control and came towards the vehicle of the respondent PB29A9762 which was coming from the opposite side and was being driven at a very safe and moderate speed by him. He stated that his vehicle was first hit by the offending vehicle i.e. mini truck and because of the side on collision the vehicle turned turtle to its side and came to a stand. He Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 23 of 88 stated that the vehicle of the petitioners was lucky to go to the other direction and was just miraculously saved from colliding with the container of R4W1 and if it had collided with the falling canter, the tragedy could be far more than what happened to the petitioners and the other passengers. He stated that he also got injuries and his vehicle also got severely damaged. He stated that there was no fault on his part and the accident happened because of the fault of the respondent No.1 and the petitioners. He stated that it was him and his vehicle who suffered injuries and loss of property because of the rash and negligent acts of the petitioners and the respondent No.1. He stated that he did not have any liability to pay any compensation to the petitioners. RE was closed on 11.8.2014.
23. I have heard the Learned Counsel for the petitioners as well as the Learned Counsels for the respondents No.2, 3 and 4 and perused the record. Written submissions were also filed on behalf of the respondent No.2 which I have perused. The petitioners were also examined on 08.05.2014 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.
24. My findings on the specific issues are as under:
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 24 of 88 Issue No. 1
25. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that they sustained injuries in an accident caused due to rash and negligent driving by the driver of the offending vehicle (there are two alleged offending vehicles in the present case). 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 Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 25 of 88 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.
26. The case of the petitioners is that on 26.10.2007, the petitioners along with their family members and relatives visited Lahori Village, Hissar, Haryana for performing the religious Sukhmani Path. They were travelling in a Tavera having registration No.DL4CAD1586 which was driven by the petitioner Amarjeet. After performing the religious path in Lahori Village, Hissar, Haryana, they were returning to their place of residence at Govindpuri, New Delhi in the night of 26.10.2007. At around 2.30 a.m. of the intervening night of 26.10.2007 and 27.10.2007, when their Tavera vehicle reached near BLS University, Jakhoda Village, Sadar Bahadurgarh, Distt. Jhajjar, Haryana, their vehicle was first hit on the right side by the offending vehicle Mini Tata Truck Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 26 of 88 bearing registration No.HR55C5780 driven by Shri Om. Then the second vehicle Truck Ashok Ley Land bearing registration No.PB29A9762 which was coming from the opposite side also hit the vehicle of the petitioners. As a result of the same, the vehicle in which the petitioners were travelling turned upside down due to the impact of the accident, as a result of which all the occupants of the vehicle received severe injuries of different nature. It was averred that the drivers of the offending vehicles ran away from the scene fearing immediate action against them. With the help of the people over there, the petitioners and other occupants of the vehicle were taken to Delhi Medical and Nursing Home, Bahadurgarh for their treatment. However, due to the seriousness of the injuries suffered by the petitioner Amarjeet, and other family members, they were sent to AIIMS, New Delhi by an Ambulance. Their case was referred to Safdarjung Hospital, New Delhi from where they were shifted to Batra Hospital and Medical Research Centre, M. B. Road, New Delhi. It was stated that in respect of the accident FIR No.295/2007 was registered at PS Sadar Bahadurgarh, District Jhajjar upon the reporting of the incident by Sardar Jagjit Singh who was also travelling with them. In paras 4 to 11 of his affidavit Ex.PW1/A the petitioner Amarjeet had reiterated the mode and manner of the accident as stated in the claim petition. He stated that their vehicle met with an accident due to the negligence of the driver/ owner of the offending vehicles bearing registration number HR55C5780 and PB29A9762 causing severe damage to the vehicle, besides causing serious bodily injuries to him resulting in the amputation of his right hand above the Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 27 of 88 elbow. Likewise in paras 4 to 11 of her affidavit PW Kulwant Kaur reiterated the mode and manner of the accident as also PW Balkar Singh in paras 5 to 11 of his affidavit.
27. The petitioners have filed certified copies of the criminal record consisting of copy of FIR No.295/2007 under sections 279/337 IPC, PS Sadar Bahadurgarh, District Jhajjar, copy of charge sheet, copy of charge framed by the learned Judicial Magistrate on 2.5.2008 against the respondents No.1 and 4, copy of mechanical inspection report in respect of the three vehicles, copy of the complaint and copy of statement of the petitioner Amarjeet and of Sardar Darshan Singh. As per the FIR No.295/2007 under sections 279/337 IPC, PS Sadar Bahadurgarh, District Jhajjar the case was registered on the basis of complaint of Sardar Jagjit Singh who was stated to be travelling with the petitioners wherein he has stated the manner in which the accident took place. As per the charge sheet the respondents No.1 and 4 have been charge sheeted for the offence under sections 279/337/338 IPC and charge was also framed against them on 2.5.2008. 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.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 28 of 88
28. The respondent No.1 who is the driver cum owner of the vehicle No.HR55C5780 had filed the written statement averring that the accident in question took place not in the manner stated in the petition but the true facts resulting in the accident are that the respondent No.1 was coming back from Rohtak after delivering the goods at Rohtak. The respondent No.1 was driving his vehicle with all due care after observing all the traffic rules at a normal speed. The vehicle of the petitioners was behind the vehicle of the respondent No.1 which was admitted by the petitioners. It was averred that the vehicle driven by the respondent No.4 bearing registration No.PB29A9762 was coming from the opposite direction, which hit the right hand side of the vehicle driven by the respondent No.1 and after the impact the respondent No.1 went off the road on the left hand side and fell in a 'Khadd'. It was averred that in the meanwhile, the truck Ashok Leyland driven by the respondent No.4 came to a halt on the right hand side of the road and before the petitioner Amarjeet could stop his vehicle he came and hit the vehicle of the respondent No.4. It was averred that it was apparent that the petitioner's vehicle actually collided with the vehicle driven by the respondent No.4 and not with the vehicle driven by the respondent No.1. It was averred that the petitioners along with the respondents No.3 and 4 have manipulated the FIR for seeking undue advantage from the respondent No.1, whose vehicle never touched the vehicle of the petitioners nor it caused any accident with the vehicle of the petitioners and it was the respondent No.1 who is entitled to claim compensation from the respondents No.3 and 4, whose vehicle caused the accident with the vehicle Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 29 of 88 of the respondent No.1 and the petitioners, which not only caused damage to the vehicle of the respondent No.1 but also caused bodily injury to the respondent No.1 and his conductor.
29. The respondents No.3 and 4 had also filed their written statement averring that the alleged accident had been caused neither by the respondent No.4 nor by the vehicle of the respondents No.3 and 4. It was averred that in the night of 26.10.2007 there was an accident between the vehicle of the petitioners and a mini truck HR55C5780 near BLS University, Jakhoda. The petitioner's vehicle was hit by the mini truck, due to the force and impact of the collision, the mini truck and vehicle of the petitioners both lost their control and came towards the vehicle of the respondent No.3 PB29A9762 which was coming from the opposite side and was being driven at a very safe and moderate speed by the driver the respondent No.4. It was averred that the vehicle of the respondents No.3 and 4 was first hit by the offending vehicle i.e. mini truck and because of the side on collision the vehicle turned turtle to its side and came to a stand. It was stated that the vehicle of the petitioners was lucky to go to the other direction and was just miraculously saved from colliding with the container of the respondents No.3 and 4 and if it had collided with the falling canter, the tragedy could be far more than what happened to the petitioners and the other passengers. It was averred that the driver respondent No.4 got injuries and the vehicle also got severely damaged. It was averred that there was no fault on the part of the respondent No.4, he was Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 30 of 88 at no fault and the accident happened because of the fault of the respondent No.1 and the driver of the vehicle of the petitioners. It was averred that it was the respondents No.3 and 4 who suffered injuries and loss of property because of the rash and negligent acts of the driver of the vehicle of the petitioners and the respondent No.1. It was averred that the FIR was lodged by the complainant against the respondent No.4 in collusion with the police authorities and other offenders/ respondents with the sole purpose of extorting money from the respondents No.3 and 4. The respondent No.4 also appeared in the witness box as R4W1 and reiterated the averments made in the written statement filed on behalf of the respondents No.3 and 4.
30. It is thus seen that as per the case of the petitioners, when their Tavera vehicle which Amarjeet was driving reached near BLS University, Jakhoda Village, Sadar Bahadurgarh, Distt. Jhajjar, Haryana, their vehicle was first hit on the right side by the offending vehicle Mini Tata Truck bearing registration No.HR55C5780 driven by Shri Om and then the second vehicle Truck Ashok Ley Land bearing registration No.PB29A9762 which was coming from the opposite side also hit the vehicle of the petitioners as a result of which the vehicle in which the petitioners were travelling turned upside down. As per the respondent No.1 the vehicle of the petitioners was behind the vehicle of the respondent No.1 and the vehicle driven by the respondent No.4 bearing registration No.PB29A9762 was coming from the opposite direction, which hit the right hand side of the vehicle driven by the respondent No.1 and after the Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 31 of 88 impact the respondent No.1 went off the road on the left hand side and fell in a 'Khadd'. It was averred that in the meanwhile, the truck Ashok Leyland driven by the respondent No.4 came to a halt on the right hand side of the road and before the driver of the vehicle of the petitioners could stop his vehicle he came and hit the vehicle of the respondent No.4 and there was no collision with the vehicle driven by the respondent No.1. On the other hand the respondents No.3 and 4 stated that the petitioner's vehicle was hit by the mini truck, due to the force and impact of the collision, the mini truck and vehicle of the petitioners both lost their control and came towards the vehicle of the respondent No.3 PB29A9762 which was coming from the opposite side and the vehicle of the respondents No.3 and 4 was first hit by the offending vehicle i.e. mini truck and because of the side on collision the vehicle turned turtle to its side and came to a stand. Thus the respondent No.1 and the respondents No.3 and 4 had denied hitting the vehicle of the petitioners and each had attributed the negligence to the other. It is not in dispute that three vehicles were involved in the accident i.e. the vehicle of the petitioners, of the respondent No.1 and of the respondents No.3 and 4. All have claimed bodily injuries and damage to their vehicles. The spot of accident is also not disputed.
31. PW1 Amarjeet was not crossexamined by the learned counsel for the respondent No.1. During crossexamination by the learned counsel for the respondent No.2 PW1 Amarjeet denied the suggestion that the accident took Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 32 of 88 place due to his own negligence. During crossexamination by the learned counsel for the respondents No.3 and 4 PW1 stated that they were ten persons in Tavera vehicle. He stated that as per the papers of Tavera 9+1 persons could travel in the said vehicle. He did not remember whether he had filed R/C of Tavera on record or not. He denied the suggestion that only seven persons are allowed to travel in Tavera vehicle. He stated that he was driving the Tavera vehicle and the same was registered in the name of his father. He stated that the Tavera vehicle was not registered as a commercial vehicle. He stated that he possessed a valid DL at the time of the accident and he had filed a copy of the same on record. He stated that at the time of the accident they were coming from Jind to Delhi. He stated that his Tavera was firstly hit by mini Truck HR55C5780 on the right back side and due to strong impact of the same the Tavera turned towards left side. He denied the suggestion that after the impact of mini truck HR55C5780 his vehicle had not turned towards the left side. He stated that thereafter his Tavera had stopped and the same was hit by vehicle No.PB29A9762. He denied the suggestion that after impact of mini truck HR55C5780 the Tavera had turned towards the right side and in order to save the Tavera and mini Truck HR55C5780 the driver of vehicle No.PB29A9762 applied brakes and turned turtle. He stated that he did not know whether the driver of the vehicle No.PB29A9762 had sustained injuries or not. He denied the suggestion that the accident took place due to his negligence and the negligence of the driver of the mini truck HR55C5780 and on that account the driver of vehicle No.PB29A9762 sustained injuries Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 33 of 88 and the said vehicle also suffered damages. Thus PW1 Amarjeet stated that they were ten persons in Tavera vehicle. He stated that as per the papers of Tavera 9+1 persons could travel in the said vehicle. He did not remember whether he had filed R/C of Tavera on record or not. However the petitioner Balkar Singh had filed the RC of the Tavera which is Mark A in suit No.68/14 as per which the seating capacity of the Tavera was 10. He denied the suggestion that only seven persons are allowed to travel in Tavera vehicle and even the RC shows that 10 persons could have travelled in the Tavera. He stated that he was driving the Tavera vehicle and the same was registered in the name of his father and there is no dispute about the same and Balkar Singh had also stated about owning the Tavera. He stated that the Tavera vehicle was not registered as a commercial vehicle and in fact it is the case of the petitioners that they along with their relatives were travelling in the Tavera and not that it had been let out on hire. Amarjeet stated that he possessed a valid DL at the time of the accident and he had filed a copy of the same on record and a perusal of the record shows that a copy of the DL of Amarjeet had been placed on record.
32. PW Kulwant Kaur was not crossexamined on behalf of the respondents No.3 and 4. During crossexamination by the learned counsel for the respondent No.2 PW Kulwant Kaur stated that the Tavera in which she was travelling was on the left side of the road and they were to go straight. She stated that the vehicle No.HR 55C 5780 came from behind their vehicle Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 34 of 88 and hit their vehicle on its right backside. She stated that the vehicle No.PB 29A 9762 came from the front side of their vehicle and hit the right front side of their vehicle due to which their vehicle overturned. She stated that there was no divider on the road of accident. She could not tell the width of the road. She could not say whether other vehicles were passing at the time of the accident or not. She denied the suggestion that no accident had taken place due to the rash and negligent driving of vehicle No.HR 55C 5780. She denied the suggestion that the accident had taken place due to the negligence of Tavera car in which they were travelling. During crossexamination by the learned counsel for the respondent No.1 PW Kulwant Kaur stated that they were moving on the main highway at the time of the accident. She denied the suggestion that the accident had not taken place due to the negligence of the respondent No.1. Thus PW Kulwant Kaur stated that they were moving on the main highway at the time of the accident and there is no dispute about the spot of the accident.
33. PW Balkar Singh was not crossexamined on behalf of the respondents No.3 and 4. During crossexamination by the learned counsel for the respondent No.2 PW Balkar Singh stated that the Tavera in which he was travelling was being driven on the left side of the road. He stated that the vehicle No.HR 55C 5780 came from behind the Tavera car and hit the Tavera on the right backside. He stated that the vehicle No.PB29A9762 came from the front side and it was being driven on the wrong side and hit their vehicle on Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 35 of 88 the front right side as a result of which their vehicle overturned. He denied the suggestion that the accident took place due to the sole negligence of the driver of Tavera vehicle in which he was travelling. During crossexamination by the learned counsel for the respondent No.1 PW Balkar Singh denied the suggestion that the accident had not taken place due to the negligence of the respondent No.1.
34. Regarding the manner of the accident all the PWs had deposed that their vehicle was first hit on the right side by the offending vehicle bearing registration No.HR 55C 5780 driven by Shri Om and then by the second vehicle bearing registration No.PB 29A 9762, which was coming from the Rohtak side and it turned upside down. During crossexamination PW1 Amarjeet had stated that at the time of the accident they were coming from Jind to Delhi and again there is no dispute in that regard. He reiterated that his Tavera was firstly hit by mini Truck HR55C5780 on the right back side and due to strong impact of the same the Tavera turned towards left side and thereafter his Tavera had stopped and the same was hit by vehicle No.PB29A9762. He denied the suggestion that after impact of mini truck HR55C5780 the Tavera had turned towards the right side and in order to save the Tavera and mini Truck HR55C5780 the driver of vehicle No.PB29A9762 applied brakes and turned turtle. PW Kulwant Kaur stated that the Tavera in which she was travelling was on the left side of the road and they were to go straight. She stated that the vehicle No.HR 55C 5780 came Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 36 of 88 from behind their vehicle and hit their vehicle on its right backside. She stated that the vehicle No.PB 29A 9762 came from the front side of their vehicle and hit the right front side of their vehicle due to which their vehicle overturned. She stated that there was no divider on the road of accident. She could not tell the width of the road. She could not say whether other vehicles were passing at the time of the accident or not. Likewise PW Balkar Singh stated that the Tavera in which he was travelling was being driven on the left side of the road. He stated that the vehicle No.HR 55C 5780 came from behind the Tavera car and hit the Tavera on the right backside. He stated that the vehicle No.PB29A9762 came from the front side and it was being driven on the wrong side and hit their vehicle on the front right side as a result of which their vehicle overturned. A copy of the site plan has not been filed in the instant case but it is significant that PW Kulwant Kaur had stated that there was no divider on the road of the accident and PW Balkar Singh had stated that the vehicle No.PB29A9762 came from the front side and it was being driven on the wrong side. Moreover no evidence has been led by the respondent No.1 to prove his version of the accident.
35. During crossexamination by the learned counsel for the petitioners R4W1 denied the suggestion that he was coming from the left side as a result of which he hit the vehicle of the petitioner volunteered he was coming from Delhi towards Rohtak from the correct side at a moderate speed. Thus R4W1 had denied the suggestion that he was coming from the left side Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 37 of 88 and volunteered that he was coming from Delhi towards Rohtak from the correct side at a moderate speed. According to the PWs first the vehicle No.HR55C5780 had hit their Tavera and then the vehicle No.PB29A9762 hit their Tavera but as per their testimony it is also clear that both the vehicles had contributed to the happening of the accident and none of the respondents have been able to show that the petitioner Amarjeet who was driving the Tavera had also contributed to the accident in question in any manner. The law is well settled that the claimants can chose the insurer and insured in respect of the vehicles as tort feasors to recover the compensation amount. In Om Wati & Ors. v. Mohd. Din & Ors. 2001 91 DLT 184 (decided by DB of Hon'ble High Court of Delhi) it was observed:
"Coming to the question of 'apportionment' it seems to us that First Appellate Court was in error in holding that claimants would have to forego 30% share of their awarded compensation in favour of the joint tortfeasors of the truck present before the Court as they had failed to implead tort feasors of the car as partyrespondents in their claim suits. This is because the accident could not be wholly treated to be the result of contributory negligence. Even, if it was assumed that the drivers of the two vehicles contributed to the accident in some measure, the other two deceased who were travelling in the car could not be held responsible for any such negligence. Therefore, it was a case of composite negligence in their case. The principle of composite negligence is that where more than one person are responsible for commission of the wrong, the person wronged has a choice of proceedings against all or any one or more. Any one of the wrong doer is liable for the whole damage if it is otherwise made out. In other Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 38 of 88 words the liability of two sets of tortfeasors becomes both joint and several."
However in the present case the driver cum owner and insurance company of the vehicle bearing No.HR55C5780 and the driver and owner of the vehicle bearing No.PB29A9762 have all been joined as respondents. This judgment was referred to by the Hon'ble High Court of Delhi in Raj Pal Kaur & Ors. v. Pawan Gir & Ors. CM(C)1187/2013 decided on 30.10.2013 and it was held that the FIR was registered against the truck driver and the petitioners/ claimants had rightly sought relief against the said vehicle. In the present case the FIR had been registered against both the respondent No.1 and the respondent No.4 and even charge has been framed against them.
36. Further the Hon'ble Supreme Court in T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, held: "6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 39 of 88 the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
Thus it was held by the Hon'ble Supreme Court that each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them.
37. Coming to the facts of the present case the respondent No.1 who is the driver cum owner of the vehicle bearing No.HR55C5780 has not led any evidence to dispute the version put forth by the petitioners or in the criminal record or to prove any other version of the accident. The respondent No.4 had appeared in the witness box as R4W1 but there is nothing to corroborate what has been stated by him. On the other hand all the PWs have reiterated what was stated in the FIR which was lodged soon after the accident and have further corroborated the testimony of each other and no material contradictions are found in the same. Further the criminal record has been placed on record which shows that the respondents No.1 and 4 have been charge sheeted for the offence under Sections 279/337/338 IPC. There is absolutely no evidence from the respondents to disprove the involvement of vehicles No.HR55C5780 and PB29A9762. In view of the testimony of PWs and documents on record which have remained unrebutted, the negligence of the respondents No.1 and Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 40 of 88 4 has been prima facie proved. Looking to the facts of the case the negligence of the respondent No.1 is apportioned as 60% and of the respondent No.4 as 40%.
38. It was stated that due to the accident all the occupants of the vehicle received severe injuries of different nature. The petitioners and other occupants of the vehicle were taken to Delhi Medical and Nursing Home, Bahadurgarh for their treatment. However, due to the seriousness of the injuries suffered by the petitioners Amarjeet Singh and Balkar Singh and other family members, they were sent to AIIMS, New Delhi by an Ambulance after first aid. Their case was referred to Safdarjung Hospital, New Delhi from where they were shifted to Batra Hospital and Medical Research Centre, M. B. Road, New Delhi for the treatment. While the Batra Hospital admitted the petitioner Amarjeet Singh to ICU immediately on 27.10.2007 keeping in view the seriousness of the injuries received by him, the others were discharged after receiving first aid. The copies of the MLRs/MLCs have not been placed on record, however petitioners have placed on record documents regarding their treatment which show the injuries sustained by the petitioners. Thus it stands established that the petitioners had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioners and against the respondents.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 41 of 88 Issue No.2
39. Since issue No.1 has been decided in favour of the petitioners they 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 on treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, the petitioners are 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.
COMPENSATION IN SUIT No.65/14 MEDICINES AND MEDICAL TREATMENT
40. The case of petitioner is that due to the impact of the accident on 26/27.10.2007 all the occupants of the vehicle received severe injuries of different nature. With the help of the people over there, the petitioners and other occupants of the vehicle were taken to Delhi Medical and Nursing Home, Bahadurgarh for their treatment. However, due to the seriousness of the injuries suffered by the petitioners Amarjeet Singh and Balkar Singh and other Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 42 of 88 family members, they were sent to AIIMS, New Delhi by an Ambulance after first aid. Their case was referred to Safdarjung Hospital, New Delhi from where they were shifted to Batra Hospital and Medical Research Centre, M. B. Road, New Delhi for the treatment. While the Batra Hospital admitted the petitioner Amarjeet Singh to ICU immediately on 27.10.2007 keeping in view the seriousness of the injuries received by him, the others were discharged after receiving first aid. It was stated that the right hand of the petitioner Amarjeet Singh below the elbow was operated upon and finally had to be amputated to save the life of the petitioner. The petitioner was discharged from the hospital on 29.10.2007 with a clear direction to report for dressing etc, on week to week basis. It was averred that the treatment of the petitioner was still continuing and would continue for another two months till the wounds were healed up. It was averred that orthopaedicians had been consulted by the family members of the petitioner for fixing artificial limb on the amputated part of the petitioner's right hand. According to the estimate given by the Doctors the same involved Rs.5,00,000/ to Rs.9,00,000/ in India and if the same exercise was undertaken abroad, the same would cost around Rs.16,00,000/ approximately. It was averred that the petitioner's family has already spent more than Rs.50,000/ towards the treatment of the petitioner who had suffered permanent disability due to the accident that took place in the intervening night of 26.10.2007 and 27.10.2007.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 43 of 88
41. PW1 in paras 6 and 916 of his affidavit Ex.PW1/A had deposed to that effect. He stated that he was discharged from the hospital after 3 days on 29.10.2007 and thereafter he was advised to come for regular and periodic check up to the hospital which continued till January, 2008. He stated that he applied for the disability certificate from the competent authority i.e. Medical Superintendent, Lok Nayak Hospital, Government of NCT of Delhi and the same was granted in his favour on 6.6.2008. He stated that with the advice of the doctors he had been fitted with a digital artificial limb which had been purchased at a cost of Rs.8,10,000/ and he had paid a further sum of Rs. 13,500/ on 15.10.2009 for repairing charges of the artificial limb. He stated that approximately Rs.10,00,000/ had been spent in his medical treatment including the artificial limb and as per the advice the artificial limb requires maintenance of Rs.10,000/ to Rs.15,000/ per year. He stated that the injury suffered by him had resulted in permanent disability. Two photographs are Ex.PW1/2 and Ex.PW1/3, copy of discharge summary of Batra Hospital and Medical Research Centre, OPD cards and prescriptions are Ex.PW1/4 (colly), bills are Ex.PW1/5 (colly), copy of disability certificate is Mark B, letter dated 18.01.2008 issued by Otto Bock is Ex.PW1/6, receipt issued by Otto Bock is Ex.PW1/7, invoice issued by Otto Bock is Ex.PW1/8 and invoice issued by Otto Bock is Ex.PW1/9.
42. The MLC of the petitioner is not on record. However the documents filed show that the petitioner had sustained crush injury with auto amputated Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 44 of 88 (R ) elbow (Gustilo Type III c) with severed Bronchial Ulnar Radial Nerves and Anterior Right upper limb with lacerated wounds upper arm and there was compound fracture of Gustilo Grade III c (R ) elbow, fracture lower right end humerus, intercondylar lower end humerus and upper end ulna and above elbow amputation of right forearm was done. Further he remained admitted in hospital from 27.10.2007 to 29.10.2007. Thus the injuries were serious in nature. The petitioner had contended that he had sustained disability in the accident. In order to prove the disability certificate the petitioner had produced PW2 who deposed that she was the Chairperson of the Disability Board which had examined the patient Shri Amarjeet Singh, S/o Shri Balkar Singh. Copy of the disability certificate is Ex.PW2/1. She stated that as per the record the patient was a case of above elbow amputation (right) upper limb and he had suffered 85% permanent physical impairment in relation to right upper limb. She stated that the patient would not be able to perform the functions which require use of both hands efficiently on account of the disability. PW2 was not crossexamined on behalf of the respondent No.1. During crossexamination by the learned counsel for the respondent No.2 PW2 stated that she did not remember whether the MLC of the patient was seen by the Disability Board or not. She stated that there was no copy of the MLC of the patient on the record brought by her. She could not say the extent of disability of the patient in relation to the whole body. During crossexamination by the learned counsels for the respondents No.3 and 4 PW2 stated that the disability certificate is issued after examining the patient and the records brought by the patient.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 45 of 88
Thus PW2 did not remember whether the MLC of the patient was seen by the Disability Board or not and there was no copy of the MLC of the patient on the record brought by her. She also could not say the extent of disability of the patient in relation to the whole body. She stated that the disability certificate is issued after examining the patient and the records brought by the patient. Even nothing has been brought on record to dispute the disability certificate. As such it stands established that the petitioner had sustained disability due to the accident.
43. PW1 Amarjeet was not crossexamined on behalf of the respondent No.
1. During crossexamination by the learned counsel for the respondent No.2 PW1 Amarjeet stated that he had already filed the bills regarding artificial limb on record. He admitted that Ex.PW1/8 is the bill for repair of artificial limb. He stated that he had filed all the bills regarding expenditure on medical treatment within his possession. He denied the suggestion that the bills of medical treatment and artificial limb were forged and fabricated. He denied the suggestion that he had filed an exaggerated claim. During crossexamination by the learned counsel for the respondents No.3 and 4 PW1 Amarjeet stated that he had acquired artificial limb of higher price because it facilitated his movement. He denied the suggestion that he could do most of the work from his right hand after acquisition of artificial limb. He stated that the payment for acquisition of artificial limb was made in cash. He denied the suggestion that bills of artificial limb were forged and fabricated. He denied the suggestion that Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 46 of 88 his claim is false. Thus PW1 stated that he had filed all the bills regarding expenditure on medical treatment within his possession. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner has filed original bills in respect of expenditure on medicines and treatment for an amount of Rs.38,572/ approximately. Looking to the nature of the injuries the petitioner would be entitled to the amount of the said bills. The petitioner would have spent some amount on the treatment even subsequently. Accordingly an amount of Rs.40,000/ is awarded towards expenses on medicines and medical treatment including the amount of the bills.
44. The petitioner had stated that with the advice of the doctors he had been fitted with a digital artificial limb which had been purchased at a cost of Rs.8,10,000/ and he had paid a further sum of Rs.13,500/ on 15.10.2009 for repairing charges of the artificial limb and as per the advice the artificial limb requires maintenance of Rs.10,000/ to Rs.15,000/ per year. Letter dated 18.01.2008 issued by Otto Bock is Ex.PW1/6, receipt issued by Otto Bock is Ex.PW1/7, invoice issued by Otto Bock is Ex.PW1/8 and invoice issued by Otto Bock is Ex.PW1/9. The petitioner in support of his case had also examined PW3 who stated that the documents Ex.PW1/6 to Ex.PW1/9 were issued by his office. He stated that the document Ex.PW1/6 had been issued under the signatures of Shri Roman Jagota, Regional Manager. The documents Ex.PW1/7 to Ex.PW1/9 had been issued under the signatures of Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 47 of 88 Ms. Prabhjot Kaur, Administrative Incharge. During crossexamination by the learned counsel for the respondent No.2 PW3 stated that the fitment of the artificial limb was complete. He stated that the advance payment of Rs.1 lac was received by way of cheque and the remaining payment was in cash. He had not brought any document to show the payment received in cash volunteered the invoice would show the same which was with the Mumbai office. He stated that he had no personal knowledge about this case. He denied the suggestion that the expenditure had been shown on the higher side in order to help the petitioner to get a higher claim.
45. PW3 thus stated that the fitment of the artificial limb was complete. He was crossexamined on the mode of payment and he stated that the advance payment of Rs.1 lac was received by way of cheque and the remaining payment was in cash. However PW3 had not brought any document to show the payment received in cash and volunteered that the invoice would show the same which was with the Mumbai office. However the invoice which has been filed is Ex.PW1/9 and does not mention about any advance payment of Rs.1,00,000/ nor any receipt is annexed with the same as is so in the case of Ex.PW1/7 and Ex.PW1/8. At the same time there is nothing to dispute that the petitioner had got the artificial limb fitted and at the cost mentioned in Ex.PW1/9. PW1 had stated that he had paid a further sum of Rs.13,500/ on 15.10.2009 for repairing charges of the artificial limb and both the invoice and the receipt in that respect have been placed on record though no invoice to Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 48 of 88 show similar expenses in the subsequent years has been placed on record though the petitioner was examined only in 2013. PW1 had stated as per the advice the artificial limb requires maintenance of Rs.10,000/ to Rs.15,000/ per year and Ex.PW1/6 mentions the same but as observed above except for the documents dated 15.10.2009 no documents have been produced for 2010, 2011 and 2012 in that respect. PW1 Amarjeet had also stated that he had already filed the bills regarding artificial limb on record. He admitted that Ex.PW1/8 is the bill for repair of artificial limb. He also stated that he had acquired artificial limb of higher price because it facilitated his movement. He stated that the payment for acquisition of artificial limb was made in cash which was also stated by PW3 except that he stated that payment of Rs.1 lakh advance was by cheque. In these circumstances the petitioner would be entitled to the amount of Rs.8,10,000/ and also the amount of Rs.13,500/. However in absence of anything to show that repair had to be done regularly in the subsequent years, the petitioner is held entitled to an amount of Rs. 1,00,000/ for future expenses on the maintenance of the consumable elements of the prosthesis. As such an amount of Rs.9,63,500/ (Rs.Nine Lacs Sixty Three Thousand and Five Hundred only) is awarded towards medical treatment and expenses including the amount of the bills and for the artificial limb and for future treatment.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 49 of 88 PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
46. 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."
The case of the petitioner is that due to the impact of the accident on 26/27.10.2007 he received severe injuries and he was taken to Delhi Medical and Nursing Home, Bahadurgarh for treatment. However, due to the seriousness of the injuries suffered by him he was sent to AIIMS, New Delhi by an Ambulance after first aid and his case was referred to Safdarjung Hospital, New Delhi from where he was shifted to Batra Hospital and Medical Research Centre, M. B. Road, New Delhi for treatment. He was admitted to ICU immediately on 27.10.2007 keeping in view the seriousness of the injuries received by him and his right hand below the elbow was operated upon and finally had to be amputated to save his life. The petitioner was discharged from Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 50 of 88 the hospital on 29.10.2007 with a clear direction to report for dressing etc, on week to week basis. It was averred that the treatment of the petitioner was still continuing and would continue for another two months till the wounds were healed up. It was averred that orthopaedicians had been consulted by the family members of the petitioner for fixing artificial limb on the amputated part of the petitioner's right hand. It was stated that the petitioner had suffered permanent disability due to the accident that took place in the intervening night of 26.10.2007 and 27.10.2007. He stated that he was discharged from the hospital after 3 days on 29.10.2007 and thereafter he was advised to come for regular and periodic check up to the hospital which continued till January, 2008. He stated that he applied for the disability certificate from the competent authority i.e. Medical Superintendent, Lok Nayak Hospital, Government of NCT of Delhi and the same was granted in his favour on 6.6.2008. He stated that with the advice of the doctors he had been fitted with a digital artificial limb. He stated that the injury suffered by him had resulted in permanent disability. The MLC of the petitioner is not on record. However the documents filed show that the petitioner had sustained crush injury with auto amputated (R ) elbow (Gustilo Type III c) with severed Bronchial Ulnar Radial Nerves and Anterior Right upper limb with lacerated wounds upper arm and there was compound fracture of Gustilo Grade III c (R ) elbow, fracture lower right end humerus, intercondylar lower end humerus and upper end ulna and above elbow amputation of right forearm was done. Further he remained admitted in hospital from 27.10.2007 to 29.10.2007. Thus the injuries were serious in Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 51 of 88 nature. The petitioner had also sustained disability in the accident and the disability certificate is Ex.PW2/1 as per which the petitioner was a case of above elbow amputation (right) upper limb and he had suffered 85% permanent physical impairment in relation to right upper limb. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2007, the petitioner is awarded Rs.50,000/ (Rs.Fifty Thousand only) for pain and suffering.
47. The petitioner was around 19 years of age at the time of the accident and it was so stated in the claim petition. The copy of the DL of the petitioner is Ex.PW1/1 which shows his date of birth as 6.2.198 but the exact year is not legible from the same. The medical documents also show his age to be 19 years. As such the age of the petitioner is taken to be 19 years on the date of the accident. Notice can be taken of the fact that on account of 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.25,000/ (Rs.Twenty Five Thousand Only) for loss of amenities of life. The petitioner would also be entitled to an amount of Rs.15,000/ towards disfiguration and Rs. 10,000/ towards loss of marriage prospects. The petitioner cannot however be held to be entitled to any amount towards loss of expectation of life.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 52 of 88 CONVEYANCE AND SPECIAL DIET
48. 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 petitioner was taken to Delhi Medical and Nursing Home, Bahadurgarh and thereafter he was sent to AIIMS, New Delhi by an Ambulance after first aid and then his case was referred to Safdarjung Hospital, New Delhi from where he was shifted to Batra Hospital and Medical Research Centre, M. B. Road, New Delhi for treatment 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.
49. 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.
50. Although the petitioner has not produced any evidence to show that he incurred any expenses towards attendant charges, however looking to the Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 53 of 88 nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.6000/ is awarded towards attendant charges.
LOSS OF INCOME
51. It is the case of the petitioner that at the time of the accident he was a 19 years old boy and was engaged in his father's business of supplying gas cylinders to the Gas Agencies in Delhi and he was earning Rs.5,000/ per month. However the petitioner has neither deposed to that effect specifically in his affidavit nor produced any document to show the same. During cross examination by the learned counsel for the respondent No.2 PW1 Amarjeet stated that at the time of the accident he was unemployed. He stated that he is educated upto 8th standard. He stated that he had not filed any document regarding his educational qualification. Thus PW1 himself had stated that he was unemployed at the time of the accident. The learned counsel for the respondent No.2 had argued that admittedly the petitioner was unemployed and as such there was no loss of income. It is true that the petitioner had stated that he was unemployed at the time of the accident and even during examination by the Tribunal he had stated that he is 27 years old at present. He stated that at the time of the accident he was not working and at present he was working with his father. As such he would not be entitled to any amount on account of loss of income. However the income of the petitioner would have Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 54 of 88 to be computed notionally for the purpose of computing loss of future income on account of the disability. There is nothing to show that the petitioner had acquired any skill. A copy of the DL of the petitioner is on record but it is not his case that he was working as a driver. During crossexamination the petitioner had stated that he is educated upto 8th standard but he had not filed any document regarding his educational qualification. However, considering the facts of the case the income of the petitioner is computed on the basis of minimum wages for a nonmatriculate prevailing on the date of the accident i.e. Rs.3,709/ p.m. i.e. Rs.44,508/ p.a.
52. The contention of the petitioner is that he had suffered 85% permanent disability in relation to right upper limb. In Raj Kumar v Ajay Kumar & Anr., (2011)1 SCC 343, the Hon'ble Supreme Court has held that :
"4..........The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal has to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. Thus Tribunal has to assess whether the petitioners suffered loss of future earning on account of Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 55 of 88 permanent disability."
"6.Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''.
"8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 56 of 88 applying the standard multiplier method used to determine loss of dependency)."
Thus it has been held that what requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured i.e. the functional disability and after assessing the loss of earning capacity in terms of percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings. The disability certificate is Ex.PW2/1 and as per the same, the petitioner was a case of above elbow amputation (right) upper limb and he had suffered 85% permanent physical impairment in relation to right upper limb. PW2 had stated that the patient would not be able to perform the functions which require use of both hands efficiently on account of the disability. Thus the petitioner had sustained permanent disability due to the accident and the doctor who has been examined in the present case had stated that the patient would not be able to perform the functions which require use of both hands efficiently on account of the disability though she could not say the extent of disability of the patient in relation to the whole body. The petitioner himself had stated during examination by the Tribunal that at present he is working with his father though he had not stated what kind of work he was doing. Further he has got an artificial limb fitted and during cross examination he had had stated that he had acquired artificial limb of higher price because it had facilitated his movement though he denied the suggestion that he could do most of the work from his right hand after acquisition of artificial limb. The petitioner has sustained permanent physical impairment of Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 57 of 88 85% in relation to his right upper limb which would have effect on the working capacity of the petitioner. In view of the same considering the nature of disability, the age of the petitioner and other attending circumstances the functional disability in his respect is taken as 40% in relation to the whole body. Accordingly the loss of income of the petitioner shall be 40% of Rs. 44,508/ i.e. Rs.17,803.2 per annum rounded off to Rs.17,803/ p.a.
53. As observed above the petitioner was 19 years old at the time of the accident and suffered permanent disability. As per Sarla Verma v. DTC (2009) 6 SCC 121 the appropriate multiplier applicable shall be of 18. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 58 of 88 the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
Thus the petitioner would be entitled to addition of 50% of the income towards future prospects as the petitioner was less than 40 years of age. After applying the multiplier of 18, the petitioner shall be entitled to loss of income i.e. Rs.17,803 X 18 = Rs.3,20,454/ + Rs.1,60,227/ (50% future prospects) = Rs.4,80,681/ rounded off to Rs.4,81,000/. The total compensation is assessed as under:
Medicines and Medical treatment Including future treatment Rs.9,63,500/ Pain and suffering Rs.50,000/ Loss of Amenities of life Rs.25,000/ Disfiguration Rs.15,000/ Loss of marriage prospects Rs. 10,000/ Conveyance Rs.5,000/ Special Diet Rs.5,000/ Attendant charges Rs.6,000/ Loss of future Income Rs.4,81,000/ TOTAL Rs.15,60,500/ Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 59 of 88 COMPENSATION IN SUIT No.67/14 MEDICINES AND MEDICAL TREATMENT
54. The case of petitioner Kulwant Kaur is that due to the accident on 26/27.10.2007 she received severe injuries and she was taken to Delhi Medical and Nursing Home, Bahadurgarh for treatment. However, due to the seriousness of the injuries suffered by the petitioners Amarjeet Singh and Balkar Singh and other family members, they were sent to AIIMS, New Delhi by an Ambulance after first aid. Their case was referred to Safdarjung Hospital, New Delhi from where they were shifted to Batra Hospital and Medical Research Centre, M. B. Road, New Delhi for the treatment. While the Batra Hospital admitted the petitioner Amarjeet Singh to ICU immediately on 27.10.2007 keeping in view the seriousness of the injuries received by him, the others were discharged after receiving first aid. It was stated that the petitioner injured her head and also received bodily injuries of minor nature. It was averred that although the petitioner was discharged from the hospital after receiving the necessary treatment for her minor bodily injuries, yet she started complaining of pain in her head very frequently. It was averred that because of the frequency of the pain because of the injury received by the petitioner she consulted Homeopathy and Ayurvedic doctors in New Delhi and presently she was under the treatment of Ayurvedic doctor. It was averred that approximately Rs.12,000/ had already been spent for the treatment of the petitioner for the Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 60 of 88 injuries she received due to the accident that took place in the intervening night of 26.10.2007 and 27.10.2007. PW1 in paras 11 to 16 of her affidavit Ex.PW1/A had deposed to that effect. She stated that she received injury on her head and the same was diagnosed to be concussion arising out of the accident for which she was advised MRI Scan by the doctor. She stated that since she continued to feel pain in her brain, she went for the Ayurvedic (desi) treatment of her injury suffered due to the accident from a Naturopathy Treatment Centre at Bhogal, Ashram Chowk, New Delhi, where she continued the treatment for about two months. She stated that she had spent more than Rs.12,000/ for treatment of her injury which she received on account of the accident that took place in the intervening night of 26.10.2007 and 27.10.2007 due to the negligence of the respondents No.1 and 4. Medical certificate is Ex.PW1/3.
55. The MLC of the petitioner is not on record but the other documents placed on record by the petitioner show the injuries sustained by the petitioner.
The Medical Certificate Ex.PW1/3 which is from a private doctor shows that the petitioner had suffered concussion and that she was advised MRI. However there is nothing to show that the petitioner had got any disability. During crossexamination by the learned counsel for the respondent No.2 PW Kulwant Kaur stated that she had not filed any certificate by the doctor that she was advised bed rest for one year. She stated that she had not filed any medical bills. She denied the suggestion that she had not incurred any amount Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 61 of 88 on treatment. She denied the suggestion that she did not require any bed rest. She denied the suggestion that her claim is false. Thus there is nothing to show that the petitioner had got any disability due to the accident. The petitioner herself stated that she had not filed any certificate by the doctor that she was advised bed rest for one year. She also stated that she had not filed any medical bills though she denied the suggestion that she had not incurred any amount on treatment or that she did not require any bed rest. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner herself stated that she had not filed any medical bills and in fact only photocopies of some bills in respect of expenditure on medicines were filed and Ex.PW1/3 also mentions charges of Rs.500/ from 27.10.2007 to 31.7.2007 but the same was a duplicate copy and cannot be said to be duly proved. However looking to the nature of the injuries the petitioner would have incurred some expenses on her treatment. As such an amount of Rs.2,000/ (Rs.Two Thousand only) is awarded towards medical treatment and expenses.
56. Note can also be taken of the fact that on account of the accident the petitioner may not have been able to perform her day to day duties towards her 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. The petitioner had stated that as a result of the injury suffered by her due to the Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 62 of 88 accident, she was unable to do her day to day household works and for which she had to keep a maid for almost a year at a monthly payment of Rs.3000/. During crossexamination by the learned counsel for the respondent No.2 PW Kulwant Kaur stated that she had not filed any document to prove that she had engaged a maid servant and paid a sum of Rs.3000/ per month to her. She denied the suggestion that she did not engage any maid servant or paid any such amount as mentioned in para No.17 of her affidavit. She also stated that she had not filed any certificate by the doctor that she was advised bed rest for one year. Thus the petitioner herself stated that she had not filed any document to prove that she had engaged a maid servant and paid a sum of Rs.3000/ to her. There is also nothing to show that the petitioner was advised bed rest for one year or that she remained on bed rest for one year. As such there is nothing to show any expenditure on these counts. There is also nothing to show that the injuries of the petitioner were such that she might have to incur extra expenditure on attendant charges. However it can be taken note of the fact that the petitioner might have had to take a special diet for a few days and that she incurred some expenses on conveyance. LOSS OF INCOME
57. It is the case of the petitioner that at the time of the accident she was a 43 year old married lady and a house wife fully occupied in looking after the wellbeing of the family comprising of her husband and children and Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 63 of 88 earning Rs.3000/ p.m. She stated that as a result of the injury suffered by her due to the accident, she was unable to do her day to day household works and for which she had to keep a maid for almost a year at a monthly payment of Rs.3000/. Thus the petitioner herself had stated that she was a housewife. There is however nothing on record to show her educational qualifications. The petitioner had also contended that she was unable to do her day to day household works and for which she had to keep a maid for almost a year but there is nothing to show that she was advised bed rest for any particular period or that her treatment was continuous or that she was unable to do her day to day household work on account of the injuries sustained in the accident. During examination by the Tribunal the petitioner had stated that she is 50 years old. She stated that she was a housewife at the time of the accident. Notice can however be taken of the fact that the petitioner may not have been able to perform her avocation for some period. Hence, the petitioner is held entitled to an amount of Rs.6,000/ consolidated on account of loss of income including for the period she may not have been able to work.
58. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that she acquired any disability on account of the accident or she is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce her efficiency to work and thereby she would suffer loss of future income. Accordingly the petitioner cannot be held entitled Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 64 of 88 to any amount on account of loss of future income.
59. In the facts and circumstances of the case and in view of the above discussion a lump sum amount of Rs.15,000/ would be just and reasonable. Accordingly an amount of Rs.15,000/ is awarded as compensation in favour of the petitioner.
COMPENSATION IN SUIT No.68/14 MEDICINES AND MEDICAL TREATMENT
60. The case of the petitioner Balkar Singh is that due to the accident on 26/27.10.2007 all the occupants of the vehicle received severe injuries of different nature and the petitioners and other occupants of the vehicle were taken to Delhi Medical and Nursing Home, Bahadurgarh for their treatment. However, due to the seriousness of the injuries suffered by the petitioners Amarjeet Singh and Balkar Singh and other family members, they were sent to AIIMS, New Delhi by an Ambulance after first aid. Their case was referred to Safdarjung Hospital, New Delhi from where they were shifted to Batra Hospital and Medical Research Centre, M. B. Road, New Delhi for the treatment. While the Batra Hospital admitted the petitioner Amarjeet Singh to ICU immediately on 27.10.2007 keeping in view the seriousness of the injuries received by him, the others were discharged after receiving first aid. It was averred that at Batra Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 65 of 88 Hospital the injury received by the petitioner was detected to be a fracture on the toe line of the right foot. After Xray the petitioner was discharged from the hospital on 27.10.2007 and on the advice of his wellwishers, the petitioner went for Ayurvedic (desi) treatment of his injury suffered due to the accident from a Naturopathy Treatment Centre at Bhogal, Ashram Chowk, New Delhi for massage and healing. It was averred that the treatment of the petitioner was still continuing and would continue for another two months till the toe line bones were set. It was averred that the petitioner had already spent more than Rs.30,000/ towards his treatment of the injury suffered due to the accident that took place in the intervening night of 26.10.2007 and 27.10.2007. PW Balkar Singh in paras 11 to 16 of his affidavit Ex.PW1/A had deposed to that effect. He stated that an Xray of the injury was done at Dr. Joshi's Medical Centre, Govindpuri, New Delhi and he was under the treatment of Dr. Bijendra Singh at his clinic at Govindpuri. He stated that since he continued to feel pain in the fractured area, he went for Ayurvedic (Desi) treatment of his injury suffered due to the accident from a Naturopathy Treatment Centre at Bhogal, Ashram Chowk, New Delhi, where he continued the treatment of his injury for about 2 & ½ months. He stated that he had spent more than Rs.20,000/ for treatment of his injury which he received on account of the accident. Medical record and prescriptions are Ex.PW1/4 and Ex.PW1/5. The MLC of the petitioner is not on record however the documents which have been filed by the petitioner show fracture of left clavicle rear acromial end with multiple injuries. Thus the injuries were grievous in nature. However there is nothing to Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 66 of 88 show that the petitioner had got any disability.
61. During crossexamination by the learned counsel for the respondent No.2 PW Balkar Singh denied the suggestion that he had not incurred Rs. 20,000/ on treatment. He stated that he had not filed any medical bills. He denied the suggestion that his claim is false. Thus there is nothing to show that the petitioner had got any disability due to the accident. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner himself stated that he had not filed any medical bills and in fact only photocopies of some bills in respect of expenditure on medicines were filed and Ex.PW1/4 also mentions charges of Rs.400/ per visit excluding medicines and other charges from 27.10.2007 to 5.11.2007 but the same was a duplicate copy and cannot be said to be duly proved. However looking to the nature of the injuries the petitioner would have incurred some expenses on his treatment. As such an amount of Rs.3,000/ (Rs.Three Thousand only) is awarded towards medical treatment and expenses. PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
62. The case of the petitioner Balkar Singh is that due to the accident on 26/27.10.2007 the petitioner along with the other occupants received severe injuries of different nature and he was taken to Delhi Medical and Nursing Home, Bahadurgarh for his treatment. However, due to the seriousness of the Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 67 of 88 injuries suffered by the petitioners Amarjeet Singh and Balkar Singh and other family members, they were sent to AIIMS, New Delhi by an Ambulance after first aid. Their case was referred to Safdarjung Hospital, New Delhi from where they were shifted to Batra Hospital and Medical Research Centre, M. B. Road, New Delhi for the treatment. While the Batra Hospital admitted the petitioner Amarjeet Singh to ICU immediately on 27.10.2007 keeping in view the seriousness of the injuries received by him, the others were discharged after receiving first aid. It was averred that at Batra Hospital the injury received by the petitioner was detected to be a fracture on the toe line of the right foot. After Xray the petitioner was discharged from the hospital on 27.10.2007 and on the advice of his wellwishers, the petitioner went for Ayurvedic (desi) treatment of his injury suffered due to the accident from a Naturopathy Treatment Centre at Bhogal, Ashram Chowk, New Delhi for massage and healing. It was averred that the treatment of the petitioner was still continuing and would continue for another two months till the toe line bones were set. He stated that an Xray of the injury was done at Dr. Joshi's Medical Centre, Govindpuri, New Delhi and he was under the treatment of Dr. Bijendra Singh at his clinic at Govindpuri. He stated that since he continued to feel pain in the fractured area, he went for Ayurvedic (Desi) treatment of his injury suffered due to the accident from a Naturopathy Treatment Centre at Bhogal, Ashram Chowk, New Delhi, where he continued the treatment of his injury for about 2 & ½ months. The MLC of the petitioner is not on record however the documents which have been filed by the petitioner show fracture of left clavicle Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 68 of 88 rear acromial end with multiple injuries. Thus the injuries were grievous in nature. However there is nothing to show that the petitioner had got any disability. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2007, the petitioner is awarded Rs.20,000/ (Rs.Twenty Thousand only) for pain and suffering.
63. The petitioner was around 48 years of age at the time of the accident. Notice can be taken of the fact that on account of 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.5,000/ (Rs.Five Thousand Only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards disfiguration or loss of expectation of life. CONVEYANCE AND SPECIAL DIET
64. 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 petitioner was taken to Delhi Medical and Nursing Home, Bahadurgarh and thereafter he was sent to AIIMS, New Delhi by an Ambulance after first aid and then his case was referred to Safdarjung Hospital, New Delhi from where he was shifted to Batra Hospital and Medical Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 69 of 88 Research Centre, M. B. Road, New Delhi for treatment 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.3,000/ (Rs.Three Thousand only) would be just and proper towards conveyance charges.
65. 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.3,000/ (Rs.Three Thousand only) for special diet.
66. 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 a sum of Rs.4000/ is awarded towards attendant charges.
LOSS OF INCOME
67. It is the case of the petitioner that at the time of the accident he was a 48 year old businessman having a family to look after and he was Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 70 of 88 engaged in the business of transportation of gas cylinders to the dealers and was earning Rs.30,000/ p.m. He stated that his monthly income was Rs. 30,000/ approximately and he filed his Income Tax Returns every year and his PAN Card number is BBTPS1168N. He stated that as a result of the injury suffered by him due to the accident, his business suffered as he could not do the normal business of transporting gas cylinders to the dealers in south Delhi in time which resulted in loss of income which otherwise could have been earned had he not been injured. Copy of voter identity card and PAN card are Ex.PW1/1 and Ex.PW1/2.
68. During crossexamination by the learned counsel for the respondent No.2 PW Balkar Singh denied the suggestion that he was not assessed to income tax. He admitted that he had not filed any document regarding his income and occupation. He stated that his income in the next financial year of the accident was almost the same as in the financial year of the accident. He stated that the income in the previous financial year of the accident was also the same as in the financial year of the accident. He denied the suggestion that he had not suffered any loss of income due to the accident. He denied the suggestion that he was not doing business or earning Rs.30,000/ per month as mentioned in his affidavit. Thus PW Balkar Singh admitted that he had not filed any document regarding his income and occupation. He stated that his income in the next financial year of the accident was almost the same as in the financial year of the accident and that the Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 71 of 88 income in the previous financial year of the accident was also the same as in the financial year of the accident. He denied the suggestion that he had not suffered any loss of income due to the accident. It is seen that the petitioner had stated about being an income tax payee but he had not filed any income tax return on record nor any other document to show his income and occupation. Even the particulars of the place from where he was carrying on his business were not stated nor the particulars of any dealers were furnished nor any witness has been produced in the witness box to depose in that respect. As such there is nothing to show that the petitioner was indeed engaged in supply of gas cylinders or that he was earning Rs.30,000/ p.m.
69. The petitioner had stated that as a result of the injury suffered by him due to the accident, his business suffered as he could not do the normal business of transporting gas cylinders to the dealers in south Delhi in time which resulted in loss of income which otherwise could have been earned had he not been injured but again no evidence has been brought on record to show the same nor to show what was the loss suffered by the petitioner nor to show for how much period he could not do normal business. During examination by the Tribunal the petitioner had stated that he is 52 years old. He stated that at the time of the accident he was doing the work of supplying LPG and at present he was doing the same work. There is nothing to show that the petitioner was advised bed rest for any particular period. Notice can however be taken of the fact that the petitioner may not have been able to Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 72 of 88 perform his avocation for some period. Hence, the petitioner is held entitled to an amount of Rs.10,000/ consolidated on account of loss of income including for the period he may not have been able to work.
70. 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 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 income.
DAMAGE TO VEHICLE
71. It is the case of the petitioner that on account of the accident his vehicle was damaged. PW Balkar Singh stated that he is the owner of the vehicle make Tavera, bearing registration No.DL 4CAD 1586. He stated that his vehicle met an accident due to the negligence of the driver / owner of the offending vehicles bearing registration No.HR 55C 5780 and PB 29A 9762 causing severe damage to the vehicle. He stated that his vehicle was insured through ICICI Lombard Insurance Policy bearing No.3001/513443433. He stated that he had spent around Rs.4,40,000/ for repair of the vehicle against which the Insurance Company had paid a sum of Rs.1,99,164/ vide cheque Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 73 of 88 No.894382 dated 03.03.2008 against his claim No.MOT 00624913 directly to M/s. Autovikas Sales & Service (P) Ltd., 62, Rama Road, New Delhi15, where his vehicle was got repaired and the balance amount had been paid exclusively by him. Copy of driving license, insurance policy are Ex.PW1/6 (colly), bills raised by M/s. Auto Works are Ex.PW1/7 and copy of RC of his vehicle is Mark A. As such according to the petitioner he had received part payment of the expenses incurred on the repair of the vehicle but the remaining amount he had to pay himself. During crossexamination by the learned counsel for the respondent No.2 PW Balkar Singh denied the suggestion that he was not entitled to claim for the damages to Tavera vehicle as stated in his affidavit in the present proceedings. He stated that he had not sent any notice to insurer of Tavera for paying lesser amount than actually incurred on its repair. He denied the suggestion that he had not incurred the amount more than the amount sanctioned by the insurer of Tavera vehicle. He denied the suggestion that the entire expenses on the repair of Tavera vehicle related to the present accident had been fully reimbursed by the insurer of the Tavera. He stated that he did not remember whether he had signed any voucher towards full and final settlement of his claim in favour of the insurer of Tavera vehicle. He stated that he had no dispute pending with the insurer of Tavera Vehicle.
72. PW Balkar Singh thus stated that he had not sent any notice to insurer of Tavera for paying lesser amount than actually incurred on its repair and he Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 74 of 88 had no dispute pending with the insurer. He denied the suggestion that he had not incurred the amount more than the amount sanctioned by the insurer of Tavera vehicle or that the entire expenses on the repair of Tavera vehicle related to the present accident had been fully reimbursed by the insurer of the Tavera. He stated that he did not remember whether he had signed any voucher towards full and final settlement of his claim in favour of the insurer of Tavera vehicle. Thus other than Ex.PW1/7 which is the retail invoice issued by M/s Autovikas Sales and Service Private Ltd. the petitioner has not produced any document to show what amount was reimbursed by the insurance company and what amount he had paid. Even no witness was produced to prove the bill or to state that the expenses as stated in the bill were actually required on account of the damage to the vehicle in the accident. Even the mechanical inspection report of the Tavera does not show such serious damage as to entail an expenditure as stated by the petitioner or shown by Ex.PW1/7. Considering the facts and circumstances of the case and that the petitioner has already received reimbursement of an amount of Rs.1,99,164/ the petitioner is held entitled to an amount of Rs.20,000/ on account of damage to the vehicle Tavera.
The total compensation is assessed as under:
Medicines and Medical treatment Rs.3,000/ Pain and suffering Rs.20,000/ Loss of Amenities of life Rs.5,000/ Conveyance Rs.3,000/ Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 75 of 88 Special Diet Rs.3,000/ Attendant charges Rs.4,000/ Loss of Income Rs.10,000/ Damage to Vehicle Rs.20,000/ TOTAL Rs.68,000/ APPORTIONMENT OF LIABILITY:
73. The respondent No.1 is the driver cum owner and the respondent No.2 is the insurer of vehicle No.HR55C5780 and the respondent No.3 is the owner and the respondent No.4 is the driver of vehicle No.PB29A9762. As observed above the negligence of the respondent No.1 has been apportioned as 60% and of the respondent No.4 as 40%. It is the case of the respondent No.2 that the respondent No.1 was not holding a valid and effective permit 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. It may be mentioned that R4W1 was crossexamined on having a permit and during crossexamination by the learned proxy counsel for the respondent No.2 - insurance company R4W1 stated that the accident occurred at Asoda. He stated that he had a permit issued from Punjab and they were having due permission from Haryana Authority and paid due tax for that. He stated that he had not filed the document to show the same but he could produce the same. He stated that he had given the same to the police officials. Thus R4W1 had also not produced the permit but the same is Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 76 of 88 immaterial as the vehicle of the respondents No.3 and 4 has not been shown to be insured and as such there would be no question of breach of conditions of the policy in respect of the vehicle of the respondents No.3 and 4 and the respondent No.2 is not the insurer in respect of the vehicle of the respondents No.3 and 4.
74. In support of its case the respondent No.2 had produced R2W1 in the witness box who stated that the company served upon the respondent No. 1 being the driver cum owner of the vehicle No.HR55C5780 a notice under order 12 rule 8 CPC through their counsel and office copy of the notice under order 12 rule 8 CPC is Ex.R2W1/1 and the registered postal receipt is Ex.R2W1/2. He stated that the notice had not been replied or complied with by the addressee. He stated that despite the notice, the driver cum owner had failed to provide the permit of the vehicle. He stated that there was no valid and effective permit in respect of the vehicle at the time of the accident and there was violation of the terms and conditions of the insurance policy on the part of the insured, hence the respondent No.2 was not liable to pay any compensation to the petitioners. R2W1 was crossexamined neither by the petitioners nor by the learned counsel for the respondents No.3 and 4. It is pertinent that the respondent No.1 had filed the written statement but did not place on record any copy of the permit and even in reply to the notice under Order 12 rule 8 CPC no permit has been produced.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 77 of 88
75. Nonproduction of permit to run a commercial vehicle is a defence legally available to the insurance company under Section 149 of the Act. In New India Assurance Co. Ltd. v. Asha Rani and Ors. (2003) 2 SCC 223 and National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. (2002) 7 SCC 456 the scope of Sections 149(2) and 149(7) of the Act was explained and it was observed that an insurer could avoid its liability only in accordance with what had been provided for in subsection (2) of Section 149 of the Act. The Hon'ble Supreme Court in National Insurance Co. Ltd. v. Chella Bharathamma & Ors. (2004) 8 SCC 517 considered the aforesaid two judgments and it was held:
"High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal visàvis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable.
The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 78 of 88 be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."
In the present case, since the driver cum owner has failed to produce the permit and further he did not step into the witness box to assert that he was having a valid permit, in such circumstances, an adverse inference is liable to be drawn against him. Further the Hon'ble High Court of Delhi in MAC.APP. 1008/2011 Reliance General Insurance Co. Ltd. v. Nawab Jan & Ors. decided on 27.3.2014 where the witness of the insurance company had proved that the notice under Order 12 rule 8 CPC was served upon the owner by which he was asked to produce the permit of the offending vehicle in the court but he failed to do so and also did not file the written statement and was proceeded exparte observed:
"6. The factum of the notice has been proved by the appellant. Therefore, there is nothing on record whether the offending vehicle was having valid permit at the time of accident or not. In such eventuality, adverse inference had to be drawn against the owner of the offending vehicle. However, Ld. Tribunal failed to do so.
7. In view of the aforementioned facts, I am of the considered opinion that Ld. Tribunal has wrongly held that the breach of terms of the policy has not been established. Therefore, appellant is at liberty to recover the amount from respondent no. 7, i.e. the owner of the offending vehicle."
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 79 of 88 In the instant case as well there is nothing to show that the respondent No.1 had a valid permit at the time of the accident or not and as such adverse inference is liable to be drawn against him.
76. It is settled law that the insurance company has to establish that there was a conscious breach of the terms and conditions of the policy. In the instant case the respondent No.1 has not appeared in the witness box to depose that he had a valid permit. In New India Assurance Co. Ltd. v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733 the Hon'ble High Court observed as under:
"23. Where the assured chooses to run away from the battle i.e. fails to defend the allegation of having breached the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at the trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 80 of 88 Though this case related to a driving license but the same principles would apply in the instant case.
77. 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 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 Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 81 of 88 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 & 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 holding a valid permit and thereafter the respondent No.1 has not appeared to rebut the same.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 82 of 88
78. 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. Since the respondent No.1 did not produce a valid permit the respondent No.2 shall have the right to recover the amount of compensation from the respondent No.1 who is the driver cum owner of the offending vehicle and the insured. Accordingly the respondent No.2 shall deposit the amount of compensation for which the respondent No.1 would be liable and after depositing the same shall have the right to recover the same from the respondent No.1.
79. As regards the liability of the respondents No.3 and 4, since the respondent No.3 is the owner of the vehicle, the respondent No.3 would be liable to pay the amount of compensation on behalf of the respondents No.3 and 4.
RELIEF
80. The petitioner Amarjeet Singh in Suit No.65/14 is awarded a sum of Rs. 15,60,500/ (Rs.Fifteen Lacs Sixty Thousand and Five Hundred only); the petitioner Kulwant Kaur in Suit No.67/14 is awarded a sum of Rs.15,000/ (Rs. Fifteen Thousand Only) and the petitioner Balkar Singh in Suit No.68/14 is awarded a sum of Rs.68,000/ (Rs. Sixty Eight Thousand Only) with interest at Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 83 of 88 the rate of 7.5% per annum in terms of the decision in Rajesh and others v. Rajbir Singh and others 2013 ACJ 1403 from the date of filing the claim petition till its realization except for the period from 25.4.2012 till the date of the award i.e. 30.8.2014 as per the order dated 14.2.2013 of my learned predecessor, including, interim award, if any already passed in favour of the petitioners and against the respondents. The entire amount awarded to the petitioner Kulwant Kaur in Suit No.67/14 be released to her and the entire amount awarded to the petitioner Balkar Singh in Suit No.68/14 be released to him. The respondent No.2 is directed to deposit 60% of the amount and the respondent No.3 is directed to deposit 40% of the amount awarded to Kulwant Kaur and Balkar Singh directly in court by way of crossed cheque in terms of the above order within 30 days of the passing of the award failing which they shall be liable to pay further interest @ 12% per annum for the period of delay.
81. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount in Suit No.65/14 is to be disbursed as follows:
a) 20% of the share of the petitioner Amarjeet Singh be released to him by transferring it into his savings account and remaining amount out of his share Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 84 of 88 be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
b)The respondent No.2 is directed to deposit 60% of the amount and the respondent No.3 is directed to deposit 40% of the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Amarjeet Singh within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioner. In case of default, the respondents No.2 and 3 shall be liable to pay further interest @ 12% per annum for the period of delay.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 85 of 88
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released to the petitioner.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving accounts of the petitioner.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card to the petitioner to facilitate his identity.
g) No cheque book shall be issued to the petitioner without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the fixed deposit receipts.
Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 86 of 88
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioner, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioner.
l) The petitioner shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
m) The petitioner Amarjeet Singh 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, 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.
82. The petitioners shall file the proof of residence and the petitioner Amarjeet Singh shall also furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
83. 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 Suit No.65/14, 67/14 & 68/14 Amarjeet Singh Vs. Shri Om & Ors. Page No. 87 of 88 award amount in the register today itself. The respondents No.2 and 3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel (as per the directions contained in para 80 of the judgment cum award) 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 02.12.2014.
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. File be consigned to Record Room.
Announced in open court
on this 30th day of August, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No.65/14, 67/14 & 68/14
Amarjeet Singh Vs. Shri Om & Ors. Page No. 88 of 88