Delhi District Court
Sh. Yogesh Sharma vs Sh. Om Varan Singh on 19 April, 2007
IN THE COURT OF SMT. PRATIBHA RANI,
JUDGE/MACT/DELHI
***
(1) Suit No.200/05 Sh. Yogesh Sharma, S/o Sh. Mahavir Prasad Sharma, R/o F-154/155, Arya Samaj Road, Uttam Nagar, New Delhi.
..........Petitioner Versus
1. Sh. Om Varan Singh, (Driver) S/o Sh. Ram Pal, R/o RZ-C-27A, West Sagarpur, New Delhi.
2. Sh. Shiv Chander, (Owner) S/o Sh. Prem Pal Singh, R/o RZ-C-27A, West Sagarpur, New Delhi.
3. The New India Assurance Company Ltd., 4th floor, Bajaj House, 97, Nehru Place, New Delhi.
..........Respondents Date of Institution : 9.11.2005 *** (2) Suit No.201/05 Smt. Pushpa Sharma, W/o Sh. Yogesh Sharma, R/o F-154/155, Arya Samaj Road, Uttam Nagar, New Delhi.
..........Petitioner 1 Versus
1. Sh. Om Varan Singh, (Driver) S/o Sh. Ram Pal, R/o RZ-C-27A, West Sagarpur, New Delhi.
2. Sh. Shiv Chander, (Owner) S/o Sh. Prem Pal Singh, R/o RZ-C-27A, West Sagarpur, New Delhi.
3. The New India Assurance Company Ltd., 4th floor, Bajaj House, 97, Nehru Place, New Delhi.
..........Respondents Date of Institution : 9.11.2005 AWARD By this common order I shall dispose of the two petitions i.e. petition No.200/05 and petition No.201/05 filed by Sh. Yogesh Sharma and his wife Smt. Pushpa Sharma respectively for the injuries suffered by them in a RTA due to rash and negligent driving of respondent No.1. The case of the petitioners is that on 17.9.2005 at about 11.20 am they were going on motorcycle No.DL-4S-AK-1480 from C-2-B, Janak Puri to Hari Nagar. When They reached at C-2-B- Block red light, a vikram tempo bearing No.DL-1L-F-1414 came at a high speed and hit the motorcycle of the petitioners as a result of which they fell down and suffered injuries. The motorcycle was being driven by Sh. Yogesh Sharma (petitioner in petition 2 No.200/05) whereas his wife Pushpa Sharma (petitioner in petition No.201/05) was the pillion rider. The compensation has been claimed by both the petitioners from respondent no.1 - the driver, respondent No.2 - the registered owner and respondent No.3 - the insurer of the offending vehicle.
2. Notice of the petition was sent to the respondents. Respondent No.1 and 2 have filed joint written statement in both the petitions denying that the accident has taken place because of rash and negligent driving of respondent No.1 while admitting that on the relevant date and time, the respondent No.1 was driving tempo No.DL-1L-F-1414. It has been pleaded that when respondent No.1 reached near red light at C-2-B, Janak Puri, the signal was red and at that time, the petitioner was coming towards the red light (traffic intersection) from Dabri side and was going towards Hari Nagar. From a distance the petitioner saw the yellow light and tried to cross the traffic intersection at a high speed, but before the petitioner could cross the traffic intersection, the light turned red and it became green for the traffic coming from Uttam Nagar side. At that time, another motorcycle, which was also at a high speed, crossed the traffic intersection in front of the motorcycle of the petitioner due to which petitioner lost the balance over his vehicle and fell down at the red light just in front of vehicle of respondent No.1. 3 Respondent No.1 who was alert, immediately stopped his vehicle and hence a major mis-happening was averted. It has been pleaded that the petitioner fell down and suffered injuries because of his own high speed driving and carelessness. It has been further pleaded that respondent No.1 was an expert driver and holding a valid driving licence and that the offending vehicle was insured with respondent No.3 at the relevant time.
3. Respondent No.3 - the insurance company has also filed the written statement in both the petitions taking preliminary objection that as the owner of the vehicle was having knowledge that driver was not holding a proper and valid driving licence and had willfully breached the terms and conditions of the policy, the insurance company has no liability to pay any amount as compensation. However, on merits it has been admitted by respondent No.3 that the offending vehicle was insured with it vide policy No.310600/31/04/07746 for the period 22.1.2005 to 21.1.2006 in the name of respondent No.2.
4. On the pleadings of the parties following issues were framed in both the petitions on 4.4.2006 :- ISSUES IN PETITION NO.200/05
(1) Whether the petitioner received grievous injuries due to rash and negligent driving of offending vehicle No. DL-1L-F-1414 being driven by respondent No.1? (2) To what amount the petitioner is entitled for compensation and from whom?
4
(3) Relief.
ISSUES IN PETITION NO.201/05
(1) Whether the petitioner received grievous injuries due to
rash and negligent driving of offending vehicle No. DL-1L-F-1414 being driven by respondent No.1? (2) To what amount the petitioner is entitled for compensation and from whom?
(3) Relief.
5. After framing of issues both the petitions were consolidated vide order dated 4.4.2006 being arising out of the same accident and for the purpose of recording of evidence, petition No.200/05 was treated as the main case.
6. Petitioners Sh. Yogesh Sharma and Smt. Pushpa Sharma have appeared in the witness box and examined themselves as PW1 and PW2 respectively. No evidence has been led by the respondents.
7. I have heard ld. Counsels for the petitioner and insurance company. Written arguments have also been filed by insurance company. I have carefully gone through the record and my findings on the above issues are as under :-
ISSUE NO.1 - NEGLIGENCE (of both the petitions)
8. PW1 Sh. Yogesh Sharma, (petitioner in petition No.200/05) has deposed in his affidavit that on 17.9.2005 at about 11.20 am he was driving the motorcycle No. DL-4F-AK- 5
1480 with his wife as pillion rider. They were going to Hari Nagar from C-2-B, Janak Puri and when they reached C-2-B red light, Janak Puri, a vikram tempo bearing No.DL-1L-F-1414 came at a high speed and hit his motorcycle from behind as a result of which they alongwith the motorcycle fell down and sustained injuries. They were taken to DDU hospital by the PCR. He has also stated that this accident has taken place because of rash and negligent driving of respondent No.1. PW-2 Smt. Pushpa Sharma (petitioner in petition No.201/05) has also filed her affidavit on identical lines supporting and corroborating the statement of her husband i.e. PW-1 to establish that the accident has taken place because of rash and negligent driving of respondent No.1. Petitioners have also filed the certified copies of criminal case record of case FIR No.541/05 which are collectively exhibited as Ex.PW2/A (16 sheets). The certified copy of the report under Sec. 173 CrPC shows that respondent No.1 was chargesheeted for the offences punishable under Sec. 279/337/338 IPC for causing injuries to both the petitioners. The FIR also shows that it has been recorded on the basis of statement of petitioner Yogesh Sharma wherein he has explained in detail as to how his motorcycle was hit by respondent No.1 at the traffic signal of C-2-B-, Janak Puri. In the FIR it is specifically mentioned that the tempo driver i.e. respondent No.1 6 was overtaking the motorcycle of the petitioner but in order to save some other motorcyclist on his right, he hit the motorcycle of the petitioner. The report of the Investigating Officer also shows that when he reached the spot, he found the tempo and the motorcycle in the accidental condition and on coming to know that injured have been removed to DDU Hospital by PCR, he reached there and recorded the statement of injured Sh. Yogesh Sharma. The police investigation has also concluded that the accident has taken place because of rash and negligent driving of respondent No.1. The statement of both the petitioners/injured also establishes that their motorcycle was hit by the tempo driver i.e. respondent No.1 while driving the tempo No.DL-1L-F-1414 in a rash and negligent manner. The MLC of petitioner Smt. Pushpa Sharma shows that she has suffered simple injuries while petitioner Yogesh Sharma has suffered grievous injuries as well as temporary disability. From the statement of the petitioners/injured, certified copies of criminal case record as well as the MLCs of petitioners, it stands established that petitioner Yogesh Sharma has suffered grievous injuries and petitioner Smt. Pushpa Sharma has suffered simple injuries in this accident which took place due to rash and negligent driving of respondent No.1 while driving tempo No.DL-1L-F-1414. Issue no.1 of both the petitions is decided accordingly. 7 ISSUE NO.2 - COMPENSATION (of petition No.200/05)
9. PW-1 Sh. Yogesh Sharma has filed his affidavit to the effect that in this accident, he suffered grievous injuries and got his leg fractured treated at DDU Hospital and Dr. RML Hospital. He has further deposed that he was admitted thrice in RML Hospital and remained bed ridden from 17.9.2005 to February, 2006. He has proved his treatment record, medical bills and income tax returns as Ex.PW1/1 to 39. Perusal of his discharge reports Ex.PW1/36 to 38 show that he remained admitted in RML Hospital firstly from 3.10.2005 to 6.10.2005, secondly from 17.10.2005 to 24.10.2005 and lastly from 2.11.2005 to 10.11.2005 and has also undergone surgery. Even now Sh. Yogesh Sharma is not in a position to walk independently and though he has not been issued any permanent disability certificate, he has been issued a certificate dated 14.3.2007 by Doctor of RML Hospital which is reproducing as under :-
" Certificate for the persons with disabilities This is to certify that Sh. Yogesh Sharma, age 30 years, S/o Late Sh. M.P. Sharma, R/o WZ-154/155, F-Block, Arya Samaj Road, Uttam Nagar, New Delhi-59, male, registration No.41421/07 dated 19.2.2007 is a case of intercondylar fracture tibia right. Advised treatment & reassessment after treatment. He is physically disabled and has N/A % permanent physical impairment in relation to his whole body. (This is not for court purposes).
Note :
1. This condition is non-progressive/likely to 8 improve.
2. Reassessment is recommended after treatment."
10. The petitioner has placed on record the medical bills which are to the tune of Rs.23,719/-. Considering the nature of injuries suffered by the petitioner as well as the disability, he must have spent huge amount on his treatment though bills are only for Rs.23,719/-. In the circumstances, I award a sum of Rs.30,000/- to the petitioner towards cost of treatment.
11. The petitioner has filed his income tax returns in saral form for the assessment years 2005-2006 and 2006-2007 which are Ex.PW1/34 and PW1/35. In the income tax return for the assessment year 2006-2007, the income of petitioner Yogesh Sharma is given as Rs.1,10,000/- p.a. Considering that petitioner Yogesh Sharma has suffered grievous injuries as well as fracture and he has also undergone surgery and also requires diagnostic arthroscopy of right knee in near future, he must not have been able to earn his livelihood for a period of atleast one year. Hence, I award a sum of Rs.1,10,000/- towards loss of income. Though no document regarding the expenses incurred by the petitioner on special diet and conveyance is placed on record but keeping in view that he has suffered grievous injuries for which he was operated in Dr. RML Hospital and remained as indoor patient three times for different durations, he must have good 9 amount on conveyance and special diet. Hence, I award a sum of Rs.10,000/- towards special diet and Rs.10,000/- towards conveyance. The petitioner is also awarded a sum of Rs.15,000/- towards pain and suffering undergone by him during this period. Thus, the petitioner is awarded a total sum of Rs.1,75,000/- towards compensation.
12. The petitioner has also placed on record another prescription from Suman Medicare which is dated 10.9.2006 as per which the petitioner Sh. Yogesh Sharma requires diagnostic arthroscopy right knee and the estimated cost has been given as Rs.12000/- to Rs.15000/-. Hence, petitioner is also awarded a sum of Rs.15,000/- towards future expenses, but since this amount is to be spent in future, no interest will be payable on this amount.
ISSUE NO.2 - COMPENSATION (of petition No.201/05)
13. PW-2 Smt. Pushpa Sharma has stated that she suffered grievous injuries and was treated at DDU Hospital and RML hospital and was admitted thrice in RML hospital and remained bed ridden from 17.9.2005 to October, 2005. The MLC of petitioner Pushpa Sharma, prepared at DDU Hospital, shows that she did not suffer any bony injury. She was not even admitted in the hospital and nature of the injuries suffered by her has been opined as simple. It appears that just to have more 10 compensation, she has filed false affidavit regarding the nature of injuries and the duration of treatment. There is only one bill dated 20.9.2005 for a sum of Rs.110/- about the amount spent by her on her treatment. There is also no document on record showing her admission thrice in RML hospital. She has deposed in her affidavit that at that time of accident, she was doing private job and earning Rs.5000/- but no document to prove her said job and loss of income has been proved. In the circumstances, considering the nature of injuries suffered by petitioner Pushpa Sharma, it would meet the ends of justice, if she is awarded a sum of Rs.10,000/- in lumpsum towards cost of treatment, conveyance & special diet, loss of earning and pain & suffering. Hence, petitioner Smt. Pushpa Sharma (in petition No.201/05) is awarded a lumpsum amount of Rs.10,000/- towards compensation on account of cost of treatment, conveyance & special diet, pain & suffering and loss of earning, if any.
14. Now the question arises from whom the petitioners are entitled to received this amount. Respondent no.1 being the driver and respondent No.2 being the owner of the offending vehicle are liable to pay the amount of compensation to the petitioners. Petitioners have placed on record the photocopy of the insurance policy which shows that the offending vehicle No. 11 DL-1L-F-1414 was insured with respondent No.3 for the period 22.1.2005 to 22.1.2006. During the course of final arguments, ld. Counsel for the insurance company has contended that respondent no.1 i.e. the driver was driving vikram tempo though holding a valid driving licence only for HTV, was not authorised to drive vikram tempo. This contention is not tenable in view of the fact that HTV licence is issued by the authority only after the person holds a licence for light transport vehicle for the specified time. In this regard, reliance can be placed on the judgment of Full Bench in case New India Assurance Co. Ltd. Vs. Dharmu, 2005 ACJ 149 (HP) wherein it was held as under :-
"Where a driver has been issued a driving licence authorising him to drive a heavy transport vehicle, no additional endorsement for any other purpose is required enabling him to drive the vehicle of the type involved in the present case. Since undoubtedly the driver of the offending vehicle was possessed of valid driving licence enabling and authorising him to drive heavy transport vehicle, undoubtedly the driver of the offending vehicle was possessed of a valid driving enabling and authorising him to drive the vehicle involved in the accident. It cannot, therefore, be said that the driver was not possessed of a valid driving licence at the time of the accident.
15. In the instant case, as respondent No.1 was holding a valid driving licence and offending vehicle was duly insured with respondent No.3 - the insurance company, respondent No.3 being the insurer of the offending vehicle is vicariously liable to pay the amount of compensation to the petitioners. Issue no.2 of 12 both the petition is decided accordingly. RELIEF (of petition No.200/05)
16. In view of my finding on the above issues, the petitioner Yogesh Sharma (in petition no.200/05) is entitled to a sum of Rs.1,75,000/- towards compensation and a sum of Rs.15000/- towards future expenses which respondent No.3 - the insurance company is liable to pay. The petitioner is also to be compensated for the delay in getting the awarded amount. Accordingly, I allow an interest @ 6% p.a. from the date of filing of petition. Hence, respondent No.3, the Insurance Company is directed to pay the awarded compensation of Rs.1,75,000- with interest @ 6% p.a. from the date of filing of the petition and Rs.15000/- towards future expenses within 30 days from the date of order, failing which, petitioner would be entitled to future interest at this rate till the date of payment and the future interest will be deducted from the salary of the employee of respondent No.3 who will be responsible for delay.
17. Out of the total award of Rs.1,75,000/-, a sum of Rs.1,00,000/- shall be kept in any Nationalized bank in the shape of FDR for a period of seven years. No loan or advance on the said fixed deposit shall be permitted without the prior permission of this court. Petitioner can withdraw quarterly interest on the said fixed deposit. However, in case of any 13 emergent need, the petitioner may approach this court for pre- mature withdrawal of any amount.
RELIEF (of petition No.201/05)
18. In view of my finding on the above issues, the petitioner Pushpa Sharma is entitled to a compensation of Rs.10,000/- which respondent No.3 being the insurer of the offending vehicle is liable to pay. The petitioner is also to be compensated for the delay in getting the awarded amount. Accordingly, I allow an interest @ 6% p.a. from the date of filing of petition. Hence, respondent No.3 is directed to pay the awarded compensation of Rs.10,000/- to petitioner with interest @ 6% p.a. from the date of filing of the petition within 30 days from the date of order, failing which, petitioner would be entitled to future interest at this rate till the date of payment and the future interest will be deducted from the salary of the employee of respondent No.3 who will be responsible for delay. Files be consigned to Record Room.
Announced in the open Court 19.4.2007 ( PRATIBHA RANI ) Judge/MACT/Delhi 14 15