Delhi District Court
The Commissioner Of Police vs Sh. Ram Khillan on 8 February, 2013
1
IN THE COURT OF SH. HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.:92/11
DATE OF INSTITUTION: 19.4.2010
1. The Commissioner of Police
Police Head Quarters
I. P. Estate, New Delhi
2. Deputy Commissioner of Police
Police Control Room, Delhi ............Petitioner
Versus
1. Sh. Ram Khillan
S/o Sh. Ram Bhure
R/o R16, Dev Kunj
Raj NagarII, Palam
New Delhi
2. Sh. Mohan Lal Anand
S/o Sh. K. L. Anand
R/o 13/356, Geeta Colony
Delhi
3. M/s Bajaj Allianz General Insurance Company Ltd.
GE Plaza Airport Road
Yerwada, Pune411006
Final Arguments heard on : 31.1.2013
Award reserved for : 8.2.2013
Date of Award : 8.2.2013
2
AWARD
1. Vide this judgment cum award I shall decide petition filed U/s 166 and
140 of Motor Vehicle Act, 1988 as amended up to date (hereinafter
referred to as the Act) for grant of compensation for damage to vehicle
bearing no.DL1CJ4666(MG) PCR Van in a road accident .
2. Briefly stated the facts giving rise to the petition are that on 01.03.2009 at
about 2.45 AM the PCR Van No. DL1CJ4666 was on patrolling duty at
Mathura Road, New Delhi and when the vehicle reached in front of
National Sports Club of India suddenly a TSR bearing no. DL1RL0492
being driven by its driver in a rash and negligent manner hit the vehicle of
petitioner from rear side causing several damages to MPV. It is stated
that the case vide FIR no. 42/2009 under Section 279/337 IPC, PS Tilak
Marg was registered against the driver and owner of offending vehicle. It
is stated that due to accident the rear glass of the PCR Van was broken,
rear bumper damaged, tail light was broken and rear quarter panel
dented besides the paint damage. It is stated that the vehicle of petitioner
was got inspected by the board consisting of MTC/P&L alongwith Sh.
Ajay Girdhar, Surveyour of the insurance company. It is stated that the
government committee recommended that the vehicle no. DL1CJ4666
be got repaired at State cost from Authorized Dealer and the damage
3
charges be recovered from the owner of offending vehicle bearing
no.DL1RL0492 and the vehicle was got repaired from M/s Sikand &
Company and the final bill amounting to Rs. 16,289/ including labour
charges was sent to the Manager, Bajaj Allianz General Insurance
Company Ltd/ respondent no. 3 with the request to make the payment at
the earliest but the insurance company submitted a written letter dated 3.12.2009 stating therein that they regret to confirm the claim of petitioner outside the court and directed the petitioner to proceed to file a claim petition in the court as per provisions of Motor Vehicle Act. It is stated that the accident occurred due to negligence of respondent no. 1, the offending vehicle was owned by respondent no. 2 and insured with respondent no. 3, hence all the respondents were liable to pay compensation to the petitioner. It is prayed that award of Rs.16,289/(Rs. Sixteen Thousand Two Hundred Eighty Nine only) be passed alongwith interest @ 24% per annum in favour of petitioner against all the respondents.
3. As respondents no. 1 failed to appear despite service and was proceeded exparte on 12.1.2012.
4. Respondent no. 2 did not file written statement despite opportunities and was proceeded exparte on 22.12.2011.
5. Respondent no. 3 has filed written statement and has contested the 4 petition on various grounds interalia that respondent no. 3 is not liable to pay compensation as the driver of offending vehicle was not holding a valid and effective driving licence at the time of accident. The factum of accident is denied. It is stated that the amount claimed is very exorbitant and without any basis. It is stated that the petitioners have no locus standi to file the present claim petition as the petitioners are not the registered owner of the vehicle no. DL1CJ4666. It is stated that the petition is bad for nonjoinder of necessary parties as the driver and insurer of PCR van no. DL1CJ4666 are also the necessary parties. It is stated that the accident took place due to rash and negligent driving of driver of vehicle no. DL1CJ4666. The averments made on merits are denied. The insurance of the offending vehicle with respondent no. 3 is admitted subject to clearance of Section 64VB of the insurance Act and subject to terms and conditions of the policy bearing no. OG091101180300002468 for the period w.e.f 2.7.2008 to 1.7.2009. It is denied that the vehicle was got repaired by the petitioner after paying a sum of Rs. 16,289/. It is denied that respondent no. 3 is liable to pay compensation.
6. From the pleadings of parties following issues were framed by my Ld. Predecessor on 12.1.2012.
1. Whether the vehicle of petitioner no. DL1CJ4666 was 5 damaged in an accident which occurred on 01.03.2009 at about 2.45 AM at Mathura Road, in front of National Sports Club, New Delhi caused by rash and negligent driving of vehicle no. DL1RL0492 driven by respondent no.1, owned by respondent no. 2 and insured with respondent no. 3?OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.
7. In support of its case petitioner examined driver of PCR Van Ct. Ajit Kumar as PW1. He tendered in evidence in examination in chief his affidavit Ex. PW1/A and proved the copy of his driving licence as Ex. PW1/1. PW1 also proved the copy of FIR as Ex. PW1/2.
8. Petitioner examined Ct. Ranbir Singh, Billing Clerk, Provisions and Lines, Rajpur Road Delhi as PW2. PW2 stated that the vehicle bearing no. DL1CJ4666 was got repaired by the office of DCP Police Control Room from M/s Sikand and Company, Authorized Dealer of Maruti and payment of Rs.16,289/ vide bill no. 241 dated 26.6.2009 was made by the office to M/s Sikand and Company. PW2 proved the photocopy of bill no. 241 as Ex. PW2/1 and payment voucher as Ex.PW2/2. Petitioner thereafter closed its evidence.
9. On the other hand respondent no. 3 examined Sh.Shreyas Thakur, Executive Legal of the insurance company as R3W1. He tendered in 6 evidence his affidavit Ex. R3W1/A. R3W1 proved the copy of policy as Ex. R3W1/1, notice under Order 12 rule 8 CPC as Ex. R3W1/2 and postal receipts of the same as Ex. R3W1/3. Respondent no. 3 thereafter closed its evidence.
10.I have heard the Ld. counsel for the petitioner and perused the record. My findings on specific issues are as under:
ISSUE NO. 1
11.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that its vehicle was damaged in an accident caused due to rash and negligent driving by respondent no.1, the driver of offending vehicle no. DL1RL0492.
12.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants 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 7 sections 279/304A , Indian Penal Code against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
13.The case of the petitioner is that on 01.03.2009 at about 2.45 AM the PCR Van No. DL1CJ4666 being driven by Constable Ajit Kumar was on patrolling duty at Mathura Road, New Delhi and when the vehicle reached in front of National Sports Club of India suddenly a TSR bearing no. DL1RL0492 being driven by its driver/respondent no. 1 in a rash and negligent manner hit the vehicle of petitioner from rear side causing several damages to the said PCR Van. It is stated that the case vide FIR no. 42/2009 under Section 279/337 IPC was registered at PS Tilak Marg. It is stated that due to accident the rear glass of the PCR Van was broken, rear bumper damaged, tail light was broken and rear quarter panel dented besides the paint damage. Petitioner examined driver of PCR Van Ct. Ajit Kumar as PW1. Ct. Ajit Kumar adduced evidence by way of affidavit Ex. PW1/A. In para 2 and 3 of affidavit Ex. PW1/A, PW1 8 has reiterated the manner of accident as stated in the claim petition. The petitioner has filed on record the copy of final report under Section 173 Cr. PC as per which respondent no. 1 has been charge sheeted for the offence under Section 279/337 IPC. The petitioner has also filed on record the certified copy of Asal Tehrir which has been prepared on the basis of statement of Sh. Ajit Kumar/ PW1, copy of FIR Ex.PW1/2. As per FIR the case was registered on the basis of complaint of Sh. Ajit Kumar wherein he has reiterated the manner of accident as stated in the claim petition and his affidavit Ex. PW1/A. In the crossexamination PW1 stated that the PCR van was being driven on the left side of road at the speed of 20/KM/hour and there was not much traffic on the road and TSR hit the PCR Van on the right back side. PW1 denied the suggestion of respondent no. 3 in the crossexamination that the accident took place as PCR Van was suddenly stopped by him. This suggestion of respondent no. 3 is also of no help to respondent no. 3 as respondents have not set up the case that the PCR Van was being driven at high speed and had suddenly stopped as a result of which TSR hit the PCR Van from back side. Moreover, apart from giving suggestion to PW1 in the cross examination that the accident took place due to sudden stopping of PCR Van, respondents have not adduced any other evidence to corroborate their version of accident. Thus in view of testimony of PW1 and 9 documents on record it has been prima facie proved that the accident was caused due to rash and negligent driving of TSR no. DL1RL0492 by respondent no. 1. Issue no. 1 is accordingly decided in favour of petitioners against the respondents.
ISSUE NO. 2
14.As negligence of respondent no. 1 has proved, petitioner is entitled to compensation.
COMPENSATION
15.Present claim petition has been filed for compensation in respect of damages caused to vehicle no. DL1CJ4666(MG) by rash and negligent act of respondent no. 1.
16.It has been held in Smt.Kaushnuma Begum And Ors vs The New India Assurance Co.Ltd. Appeal(civil) 6 of 2001 Special Leave Petition(civil)1431 of 2000 as under:
"Section 165(1) of the MV Act confers power on the State Government to constitute one or more Motor Accidents Claims Tribunals by notification in the Official Gazette for such area as may be specified in the notification. Such Tribunals are constituted for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Section 175 of the MV Act contains a prohibition 10 that no civil court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal".
17. The petitioner has claimed a sum of Rs. 16,289/ for the damages caused to its vehicle bearing no. DL1CJ4666(Maruti Gypsy). In order to prove its claim petitioner examined PW2 Ct. Ranbir Singh, Billing Clerk who stated that the vehicle bearing no. DL1CJ4666 was got repaired by the office of DCP Police Control Room from M/s Sikand and Company, Authorized Dealer of Maruti and payment of Rs. 16,289/ vide bill no. 241 dated 26.6.2009 was made by the office to M/s Sikand and Company. PW2 proved the bill no. 241 dated 13.7.2009 for a sum of Rs. 16,289/ issued by M/s Sikand and Company Ex. PW2/1 and payment voucher form as Ex. PW2/2. In his crossexamination PW2 denied the suggestion of respondent no. 3 to the effect that they have not made any payment as per bill Ex. PW2/1 and the bills and voucher are false. The contention of counsel for respondent no. 3 is that no authorised officer has been examined by petitioner to prove the expenditure of Rs. 16,289/ on the repair of PCR Van which was damaged in the accident. It is to be noted that PW2 is the Billing Clerk who specifically stated that the vehicle no. DL1CJ4666 PCR was got repaired by the office of DCP, PCR from M/s Sikand and company vide bill no. 241 and payment was made vide 11 voucher Ex.PW2/2. Voucher Ex. PW2/2 specifically mentions the payment of Rs. 16,289/ to M/s Sikand and company in respect of bill no.
241. In view of deposition of petitioner's witnesses and documents on record the petitioner is awarded a sum of Rs. 16,289/(Rs. Sixteen Thousand Two Hundred Eighty Nine only) towards damage to the vehicle of the petitioner.
RELIEF
18.Petitioner is thus awarded a sum of Rs. 16,289/(Rs. Sixteen Thousand Two Hundred Eighty Nine only) with interest at the rate of 9% per annum from the date of filing of petition till its realisation. The entire amount be released to petitioner.
19.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file its complete address as well as address of his counsel for sending the notice of deposit of the award amount.
20.The insurer/respondent no. 3 shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 19.3.2013.
12APPORTIONMENT OF LIABILITY
21.Respondent no. 3 has disputed its liability on the ground that the vehicle was being driven without valid permit. In this regard respondent no. 3 has examined Sh. Shreyas Thakur, Executive Legal of the insurance company as R3W1. R3W1 proved the copy of policy alongwith terms and conditions as Ex. R3W1/1(colly), notice under Order 12 rule 8 CPC as Ex. R3W1/2 and postal receipts of the said notice as Ex. R3W1/3. R3W1 stated that they have neither received any reply to the notice nor the notice has been returned back unserved.
22.In MAC APP.522/2011, National Insurance Co.Ltd. Vs Smt.Sangeeta Tokas it is well settled that: :
"3.It is well settled that the onus is on the Insurer to prove that there is a conscious and willful breach of the terms of the policy by the insured. It is true that a notice under Order XII Rule 8 was proved to have been served upon Respondent No.
6. Respondent No.6 also failed to produce the permit to show that the vehicle could be plied in the State of Haryana. It is important to note that the offending vehicle No.HR 13 GA 0461 must be registered with any District Transport Authority in the State of Haryana. The service of notice under Order XII Rule 8 CPC only entitled to the Appellant to produce secondary evidence in respect of the document sought to be produced by Respondent No.6. It is not a case where the Appellant Insurer would not know as to where from the permit was 13 issued, as in case of a driving license. The driving license can be issued by any licensing authority in the country. The permit of a vehicle to ply in a State or any other State is primarily to be issued by the Transport Authority where the vehicle is registered. It is important to note that the vehicle is registered in the State of Haryana and it must have been plying in that State only. The Appellant did not make any efforts to summon the record from the concerned Transport Authority to prove that Respondent No.6 did not have any permit to ply the vehicle on Jhajjar Gurgaon road within the State of Haryana. The Appellant having not been able to show any conscious and willful breach of the terms of the policy could not avoid liability to indemnify the Insured."
23.In the case in hand apart from examining Sh. Shreyas Thakur as R3W1 and apart from proving notice under Order 12 Rule 8 CPC respondent no. 3 has not taken steps for summoning the records from transport authority where offending vehicle was registered. In view of decision in National Insurance Co.Ltd. Vs Smt.Sangeeta Tokas(supra) the respondent no. 3 has not been able to show any conscious and willful breach of terms of policy in order to avoid liability to indemnify the insured. Thus, respondent no. 1 being the driver, respondent no. 2 being the owner and respondent no. 3 being the insurer are held jointly and severally liable. Respondent no. 3 being the insurer is directed to deposit the award amount within 30 days with interest at the rate of 9% from the 14 date of filing of petition till its realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
An attested copy of the award be given to the parties(free of cost).
Announced in the open court. (HARISH DUDANI) On 8.2.2013. PO/MACT, NEW DELHI