Delhi District Court
Devender Verma vs . Mukesh Kumar on 16 February, 2012
Devender Verma Vs. Mukesh Kumar
1
IN THE COURT OF SHRI SANJIV JAIN PO : MACT02 : SOUTH DISTT.
SAKET COURTS : NEW DELHI.
In Suit No. : 898/10
1. Devender Verma
S/o Sh. H S Verma
R/o K111, Civil Lines Zone,
Subroto Park, New Delhi
...... Petitioner
Versus
1. Sh. Mukesh Kumar
S/o Sh. Rampal
R/o Vill. Takrauo
Teh : Karena
Distt. : Mainpuri (U.P) (Driver)
2. Sh. Prakash Chand
R/o F282, School Road,
Khanpur, New Delhi
3. Oriental Insurance Company
Asaf Ali Road, New Delhi
4. Sh. Hari Shankar
S/o Sh. Dharam Lal
R/o K181, Sangam Vihar
New Delhi
5. Sh. Rajender Singh
S/o Sh. Chattar Singh
R/o 47A, Gali No. 10C
Molarband Extension,
New Delhi 110044
......Respondents
Suit No. 898/10 Page No.1/21
Devender Verma Vs. Mukesh Kumar
2
Date of Institution : 21.08.2003
Date of reserving of judgment/order : 16.02.2012
Date of pronouncement : 16.02.2012
J U D G M E N T :
1. This petition u/s. 166 & 140 of the M.V. Act, 1988 as amended upto date (hereinafter referred to as Act) has been filed by Devender Verma claiming a compensation of Rs. 20 lakhs for the injuries sustained by him in an accident which took place on 06.01.03 at Africa Avenue Road within the jurisdiction of Police Station R K Puram, New Delhi .
2. The case of the petitioner is that on 06.01.03, he was going on his motorcycle from his house at Subroto Park to participate in a practice match. At about 2.30 PM when he reached near Sector3, R K Puram, Africa Avenue Road, a Tata Tempo 407 bearing registration no. DL 1A 0503 being driven by respondent no.1 in a rash and negligent manner came from behind and hit his motorcycle. Due to this forceful impact, his motorcycle over turned and he sustained fracture in his left hand, leg and skull. Police came at the spot, registered the case vide FIR 7/03 and arrested the respondent no.1. He was taken to Safdarjung hospital.
3. It was alleged that the petitioner was a young boy, aged about 22 years Suit No. 898/10 Page No.2/21 Devender Verma Vs. Mukesh Kumar 3 and was studying in Kirorimal College in 1st year BA Pass. He was a good sportsman at State level. He had been doing part time job with Zayka Food point, Subroto Park. It was alleged that due to shock and trauma because of the accident, the petitioner suffered irreparable loss as his ambition was to become a National / International football player as he was representing his college/university at the State level. It was stated that the respondent no.2 was owner of the Tata 407 and the vehicle was insured with respondent no.3.
4. During the proceedings, the petitioner impleaded Hari Shankar as respondent no.4 as from the report and other documents he found that the insured Prakash Chand, the respondent no.2 had sold the offending vehicle to respondent no.4. From the record it was transpired that at the time of accident, Rajender Singh was the registered owner, however, the physical possession was with the respondent no.4. Accordingly, Rajender Singh was impleaded as respondent no.5.
5. Notice of the petition was given to the respondents. The Respondent No.3 filed its written statement denying the factum of accident and alleged that the driver of the offending vehicle was not holding a valid and effective driving license at the time of accident. However, it admitted that the vehicle was insured with it vide policy / cover note no. Suit No. 898/10 Page No.3/21
Devender Verma Vs. Mukesh Kumar 4 350959, 3499/2002 for the period from 28.02.02 to 27.02.03 in the name of Prakash Chand, the respondent no.2. The respondent no.1 and 2 did not contest the case and was proceeded Exparte. Respondent no.5 Rajender Singh was directed to be served through publication. Despite that he did not appear and was proceeded Ex parte on 16.02.12. During the proceedings on the application of petitioner, an interim award for a sum of Rs.25,000/ was passed in his favour as he had a permanent disability to the extent of 51%.
6. From the pleadings, following issues were framed vide order dated 04.03.2008 :
(i) Whether injured had received injuries in motor vehicle accident due to rash and negligent driving of vehicle no. DL 1A 0503 by R1, owned by R2 and insured with R3 on 06.01.03?
......OPP.
(ii) If issue no.1 is proved in affirmative whether
the petitioner is entitled for any
compensation if yes from whom and to what
amount? ......OPP.
(iii) Relief.
7. The parties were thereafter called upon to substantiate their case by leading evidence.
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Devender Verma Vs. Mukesh Kumar 5
8. The petitioner examined himself as PW4 tendered his affidavit in evidence Ex.PW4/A and documents Ex.PW4/1 to Ex.PW4/20. He reiterated the facts as stated in the petition and placed on record his educational and merit certificates. He also placed the bills of medicines and disability certificate Ex.PW4/19. He examined Sh. S Shom from Safdarjung hospital as PW1. He brought the MLC of the petitioner Ex.PW1/1. PW2 Himanshu Chaudhary is the other eye witness of the accident. He deposed on the lines of PW4 and stated that the tempo was being driven rashly and negligently on a wrong lane and at a high speed which hit the motorcycle and dragged the petitioner for some distance. He stated that he sent the injured in a TSR to the hospital. Petitioner also examined Dr. Ravi Pathak as PW3. He proved his disability certificate Ex.PW3/2 as per which the petitioner has 51% permanent disability in his whole body. He stated that the petitioner would have difficulty in running, walking with fast pace and squatting.
9. The respondents did not examine any witness.
10. I have heard the arguments advanced by Ld. Counsel Sh. J P Sharma, for the petitioner and Sh. Sharad Chandra Jha for respondent no.4 and Sh. Ramesh Sethi for respondent no.3.
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Devender Verma Vs. Mukesh Kumar 6
11. My findings on the issues are as follows :
I S S U E N O . 1
12. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal is simply to quantify the compensation which is just rational and reasonable on the basis of inquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs. New India Assurance Co. Ltd. 2001 ACJ 421 SC.
13. The petitioner examined as PW4 has stated that when he was going to Nehru Stadium on his motorcycle from Suboroto Park, at about 2.30 PM, near Sector3, R K Puram, a Tata Tempo bearing registration no. DL 1L A 0503 being driven in a rash and negligent manner came from behind and hit his motorcycle. Due to this forceful impact, he fell down and sustained injuries in his whole body and fracture in his left hand, leg and skull. He was removed to Safdarjung hospital. He placed on record his MLC and also examined PW1. Perusal of MLC reveals that Suit No. 898/10 Page No.6/21 Devender Verma Vs. Mukesh Kumar 7 the petitioner sustained multiple injuries in the accident. The testimony of PW4 is well corroborated by PW2. Not an iota of evidence has come to draw an inference that the accident did not result due to rash and negligent driving of Tempo DL 1L A 0503 by respondent no.1. The petitioner has also filed the FIR which was registered at the police station R K Puram. The copy of the report U/s 173 Cr.P.C. was also filed alongwith the site plan which clearly show that the respondent no. 1 was driving the tempo in a rash and negligent manner which hit the motorcycle of the petitioner from behind resulting grievous injuries on the person of the petitioner. Hon'ble High Court of Delhi in case titled ''National Insurance Company Limited V/s Pushpa Rana'' reported as 2009 ACJ 287 has held that whenever criminal proceedings are placed on record on completion of investigation by the police, then that in itself is sufficient proof of the negligent driving of driver of the offending vehicle involved in the accident.
14. From the insurance policy and the written statement filed by respondent no.3, I find that he vehicle was insured in the name of respondent no.2. However, it was registered in the name of Rajender Singh, respondent no. 5 at the time of accident.
15. Thus, the issue no.1 is decided in favour of the petitioner and against the respondents.
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Devender Verma Vs. Mukesh Kumar 8 I S S U E N O . 2
16. The petitioner has claimed Rs. 20,00,000/ as compensation in respect of the injuries sustained by him. In a road accident a person is entitled to compensation for the pecuniary and nonpecuniary damages.
17. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future;
(ii) damages to compensate for the loss of amenities of life which may include a variety of matters ie. on account of injury, the claimant may not be able to walk, run or sit ;
(iii) damages for the loss of expectation of life, ie. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
Let me assess the compensation which the petitioner is entitled for under different heads.
Suit No. 898/10 Page No.8/21
Devender Verma Vs. Mukesh Kumar 9 COMPENSATION FOR EXPENSES INCURRED ON MEDICAL TREATMENT
18. As per the MLC Ex.PW4/1 the petitioner sustained multiple injuries.
He had fracture in his left femur and humerus. Doctor had opined the injuries grievous. He was also examined in Deen Dayal Upadhyay Hospital for his disability. As per certificate Ex.PW3/3, the petitioner was found to be suffering from post head injury right lower limb monoparesis with mild Ataxia with left lower limb. He has 51% permanent disability in relation to his whole body. He also followed up his treatment from Indian Spinal Injuries Centre. He was admitted on 27.10.03 and discharged on 17.11.03. He was diagnosied as post head injuries sequalae with operated fracture shaft femur (diplopia) (Left) with spatictetraparesis. He had weakness in lower limbs. He was again admitted in Indian Spinal Injuries Centre on 03.12.03 and diagnosed as infected implant fracture left femur left side 8 months old with discharge sinus with 5 cm. He had head injury with blurring of speech and fracture in right femur left side with compound injury on pelvis. He developed back and heal sore. He was discharged on 06.12.03. Although the petitioner has filed original bills for Rs. 5,596.40 but he has placed the copy of the bills for Rs. 17,566.50. The petitioner has stated that he did not claim the aforesaid amount from anyone. He has stated that during the proceedings, he lost the original bills. Looking into the injuries on his person and the treatment he Suit No. 898/10 Page No.9/21 Devender Verma Vs. Mukesh Kumar 10 underwent, I find that he might have spent much more. I therefore, award Rs. 40,000/ to the petitioner on account of "Medical Expenses".
COMPENSATION FOR PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
19. Testimony of PW4 shows that due to the accident, he sustained multiple injuries. Immediately after the accident, he was removed to Safdarjung hospital. He was admitted in the hospital for 3 times. He had developed bed sore. He also got treatment from Indian Spinal Injuries Centre. Due to the injuries he has blurring of speech. He was operated for shaft femur side. Knailing was done which got infected.
The petitioner had been studying in Kirorimal College at that time. He was a state level football player and had a good future. He could not fulfill his ambition to become National/International football player. He followed up his treatment for more than 2 years and became 51% permanent disabled in relation to his whole body. Looking into the injuries, and its affect on his career prospects, I award a compensation of Rs. 1,50,000/ towards "Pain & Sufferings".
COMPENSATION FOR SPECIAL DIET, ATTENDANT CHARGES AND CONVEYANCE CHARGES :
20. PW1 has stated that due to the accident he was admitted in the Suit No. 898/10 Page No.10/21 Devender Verma Vs. Mukesh Kumar 11 hospital thrice. He remained on bed for quite a long time. He also attended the hospital as an outdoor patient. He became physically challenged person due to the said accident. He also took the help of the attendant in his daytoday work. The special diet was advised to him for his early recovery. Taking into consideration his multiple injuries and all the facts, I award Rs. 20,000/ each towards Special diet and Conveyance and Rs. 30,000/ towards Attendant charges.
COMPENSATION FOR LOSS OF INCOME :
21. The petitioner has stated that at the time of accident he was pursuing his studies. He was doing part time job with Jayka Food point. He was a good sportsman at State level. He placed on record his sports certificate issued by Delhi University sports council, All India Football Federation, Kirorimal College, Department of Physical Education, Delhi Soccer Association, Birla Institute, Pilani and merit certificate for being winner in football in Shaheed Bhagat Singh Memorial Tournament Ex.PW4/9 to Ex.PW4/18. He also examined PW3 who stated that the petitioner has become disabled and he has 51% disability in his whole body which is permanent in nature. He has stated in his day to day activities he would have difficulty in running, walking with fast pace and squatting. Due to the injuries, he lost his career in sports. He was a young boy and had a bright future. He could not pursue his studies for a long time.
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Devender Verma Vs. Mukesh Kumar 12
22. In this case the petitioner did not place any document to show that he had been working with Zayka Food point, nor he examined any person to prove this fact, however, he has placed his certificates of merits in football. He was pursuing his graduation from a reputed college i.e. Kirori Mal College. He would have got an excellent job after graduation. He had a illustrious career in sports. Keeping these facts in mind, for calculating the loss of income, wage of Rs. 5,000/ is taken. Thus, the loss of income is calculated as 12 x 5,000 = Rs. 60,000/ taking a period of one year, he remained confined to bed. Seeing his brilliant future and excellence in sports, 50% is added on this wage for calculating the future loss of income on account of permanent physical disability. The petitioner wanted to become National/International football player but due to the accident his ambition was shattered. Even as on date he has difficulty in running, walking with fast pace and squatting. Thus, he will not able to do a mobile job. It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" that in the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. Reference was also made of the case "Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343."
23. Looking into the injuries and the fact that petitioner wanted to make his Suit No. 898/10 Page No.12/21 Devender Verma Vs. Mukesh Kumar 13 career in sports, his functional disability is taken as 40%, for calculating the compensation towards future loss of income. Petitioner was 22 years of age at the time of accident. Applying the ratio of the case of "Sarla Verma Vs. DTC 2009 (6) Scale 129" taking a multiplier of '18', future loss of income is calculated as (5000 + 50% of 5000) x 40% x 12 x 18 = Rs. 6,48,000/.
24. I therefore, award a compensation of Rs. 60,000/ towards loss of income and Rs. 6,48,000/ towards "Loss of Future Income". LOSS OF AMENITIES & MARRIAGE PROSPECTS
25. The petitioner was a young boy and had a good future. He was a football player of state level. The accident made him physically handicapped. He lost his career as his ambition was to become international football player. His marriage prospects also jeopardised as he became permanently disabled. Looking into his age, injuries and facts and circumstances of the case, I award a compensation of Rs. 1,00,000/ towards "Loss of Amenities" and Rs. 1,00,000/ towards "Loss of Marriage Prospects".
26. Thus the total compensation awarded in favour of the petitioner is assessed as under :
Suit No. 898/10 Page No.13/21
Devender Verma Vs. Mukesh Kumar 14 MEDICAL EXPENSES : Rs. 40,000/ PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 1,50,000/ SPEICAL DIET, ATTENDANT & CONVEYANCE CHARGES : Rs. 70,000/ LOSS OF INCOME : Rs. 60,000/ LOSS OF FUTURE INCOME : Rs. 6,48,000/ LOSS OF AMENITIES & MARRIAGE PROSPECTS : Rs. 2,00,000/ ============ TOTAL : Rs. 11,68,000/ ============ It is pertinent to mention here that the petitioner was awarded Rs. 25,000/ as Interim compensation vide order dated 04.03.2008 which is be deducted from the total compensation. Petitioner is thus entitled to a compensation of Rs. 11,43,000/.
L I A B I L I T Y
27. As the offending vehicle was being driven by respondent No.1, therefore primary liability to compensate the petitioner is that of respondent No.1. As the offending vehicle was insured in the name of of respondent No.2 and that the respondent no.5 was the registered owner, therefore, they become vicariously liable to compensate the Suit No. 898/10 Page No.14/21 Devender Verma Vs. Mukesh Kumar 15 petitioner. It is an admitted position on record that the offending vehicle was insured with respondent No.3, therefore, respondent No.3, becomes contractually liable to compensate the petitioner to the extent of liability of the insured.
28. Ld. Counsel for the Insurance company, however, in his quest to have the Insurance company exonerated of its contractual obligation contended that the offending vehicle was being driven by the driver using the fake license. Ld. counsel stated that summons were sent to the Transport Authority, Karnal and as per their report, no driving license bearing the number M/7767/SDO (C) was issued to the respondent no.1 by the Authority. Ld. counsel stated that notice U/o 12 R 8 CPC was sent to the Regd. owner/driver to produce the valid and effective license but they failed to produce the same as such the insurance company is not liable.
29. I have considered the submissions and perused the record.
30. It has been held by Hon'ble Apex Court in the case titled as Lal Chand Vs. Oriental Insurance Company Ltd. reported as 2006 (3) TAC321 SC that Insurance Company has to show and prove on record that due and adequate care was not taken by the owner or owner had the knowledge that driver was not holding a valid driving license. Only in Suit No. 898/10 Page No.15/21 Devender Verma Vs. Mukesh Kumar 16 that eventuality the Insurance Company can be absolved of its contractual obligation, not otherwise.
31. On going through the record and the report received from the Transport Authority, Karnal, I find that the respondent no. 1 was driving the offending vehicle using the fake licence as from the report received from the Licencing Authority, Karnal, no such licence was issued by the authority in the name of respondent no. 1. In the instant case, no evidence is led by the respondent no. 2, 4 and 5 that they had verified the genuineness of license allegedly in possession of respondent no. 1 before giving him the offending vehicle to drive. Nor there is any evidence to show that they got themselves satisfied about the competency and the capability of respondent no. 1 to drive the offending vehicle before he was deputed on it. As per the terms of the policy, any person including insured must hold an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. This very act on the part of the above respondents amounts to breach of insurance policy. Consequently, the respondent no. 3 has been able to establish that the vehicle was not plying on the road in consonance with the terms of the policy.
32. It is pertinent to mention that respondent no.2 had moved an application U/o 1 R 10 CPC for deleting his name from the array of Suit No. 898/10 Page No.16/21 Devender Verma Vs. Mukesh Kumar 17 parties stating that he had already sold the vehicle to one Mahavir on 23.09.2000 who got it transferred in his name on 24.10.2000. It was also stated that Mahavir also sold the vehicle to Rajender Singh on 31.05.2002 and Rajender Singh sold the vehicle to Hari Shankar on 01.06.2002 and now as per the record of the Authority, Hari Shankar is the owner of the offending vehicle. In response to the said application, it was submitted by the petitioner that the insurance cover note clearly indicates that the offending vehicle was insured for the period from 28.02.02 to 27.02.03 in the name of respondent no.2, the applicant, as such he is vicariously liable to compensate the petitioners for the act committed by the respondent no.1.
33. On going through the record duly verified by the Transport Authority, Delhi, I find that the ownership in the name of Hari Shankar, respondent no.4 was transferred on 19.04.03. As on date of accident Rajender Singh, respondent no.5 was the registered owner but the registered owner did not get the insurance policy transferred in his name. As per Section 147 of Motor Vehicle Act, the liability of the registered owner continues till the vehicle is registered in his name even if the vehicle is sold / transferred. It was held in the case of "Dr. T.V. Jose Vs. Chako 2002 (1) RCR (Civil) 120 (SC)" that there can be transfer of title by payment of consideration and the delivery of the vehicle but the owner still continues to remain liable to the third party Suit No. 898/10 Page No.17/21 Devender Verma Vs. Mukesh Kumar 18 as long as his name continues in the record of the R.T.O.
34. In the case in hand, the vehicle was insured and the premium to the insurance company was paid which also covered the third party. No doubt, the vehicle was transfered and the transfer was not communicated to the insurance company but on this count, the petitioner cannot be denied the compensation. It was held in the case of "G. Govindan Vs. New India Assurance Company Ltd. AIR 1999 (SC) 1398" wherein reference was also made of the section 95(5) and section 94 of the Motor Vehicle Act that on the sale of the vehicle, the insurable interest does not cease nor the policy lapses. The third party risk continues till the obligations are fulfilled. It was held that the object of the legislation is to protect the third party interest and compulsory insurance is also for the benefit of the third party.
35. In the case of Pushpa Vs. Shakuntla 2011 AIR SC 682, it was held that the registered owner continues to be the owner of the vehicle for the purposes of the Act even though under civil law, he ceases to be the owner after sale and thus is equally liable for the payment of the compensation. Thus, for the abovesaid reasons, the liability to compensate the petitioner would remain with that of respondent no. 1, 2 and 5 i.e. driver / insured / owner of the offending vehicle jointly and severally.
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Devender Verma Vs. Mukesh Kumar 19
36. Legislature being conscious of the magnitude of the plight of the victims of road accident have introduced the present beneficial provisions to protect the interest of third parties i.e. victims of road accident so as to enable them to claim compensation from the driver/ owner of the vehicle. Legislature in its wisdom has made it a statutory obligation of every owner to have his vehicle insured against third party risks. This has been made mandatory so that victims of road accident even after being granted compensation from the court, should not run from pillar to post to have the orders of the court executed and to facilitate them to get the same from the Insurance Company.
37. Balancing the "twin interest" of the Insurance Company at one hand and that of the third party i.e. petitioner for whose benefit the present legislation was brought on the statute book, it is directed that the Insurance Company shall pay the compensation awarded to the petitioner within the time given in this award and shall have the right to recover the same from respondent No. 1,2 and 5 jointly and severally.
38. For the foregoing reasons, the respondent no. 3 is directed to pay compensation to the petitioner within the time given in the award and shall have the right to recover the same from respondent no. 1, 2 and 5 jointly and severally.
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Devender Verma Vs. Mukesh Kumar 20 R E L I E F
39. In view of my findings I award a sum of Rs. 11,43,000/ as compensation with interest @ 9 % per annum from the date of filing the petition till the date of its realization in favour of the petitioner and against the respondent No.3.
40. Respondent No.3 is directed to pay the awarded amount by way of cheque in favour of the petitioner, to be deposited in this Tribunal, within a period of 30 days of this order failing which it shall be liable to pay future interest @ 12% per annum on the awarded amount till its realization (for the delayed period). Out of the awarded amount a sum of Rs. 6,00,000/ be kept in the form of FDR in the name of the petitioner in any nationalised bank for the period of three years and six years on which the petitioner would be entitled to get monthly / quarterly interest as applicable. However, no loan shall be granted to him against the said FDR. Insurance Company shall intimate to the petitioner about depositing the cheque in terms of the award at the address of petitioner mentioned in title of this award, so as to facilitate the petitioner to withdraw the same.
41. Copy of this Judgment be given to the parties for compliance.
42. Nazir attached to the Tribunal of undersigned is directed to issue notice Suit No. 898/10 Page No.20/21 Devender Verma Vs. Mukesh Kumar 21 to the petitioner immediately on deposit of the cheque of the awarded amount by the Insurance Company in this Tribunal so as to facilitate him to get the same released.
43. File be consigned to Record Room.
Announced in the Open Court
on 16th Day of February, 2012 (SANJIV JAIN)
Presiding Officer : MACT02
South Distt. : Saket Courts
New Delhi : 16.02.2012
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