Delhi District Court
Mact No.999/08 Dev Singh vs . Khem Raj Yadav on 27 January, 2012
1
MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV
IN THE COURT OF SH. B. S. CHUMBAK, PO MACT EAST
DISTRICT : DLEHI
Petition No. 999/08
Date of filing of the petition 05/05/08
Date of assignment to this court 28/11/08
Date on which judgment was reserved 14/12/11
Date of award 27/01/12
IN THE MATTER OF:-
SH. DEV SINGH
S/O LATE SH. GAMBHIR SINGH
R/O D/1/19, VINAY ENCLAVE,
PREM NAGAR-3rd LAXMI VIHAR,
DELHI-110041
ALSO AT
E-3/231, VINAY ENCLAVE,
GALI NO.6, LAXMI VIHAR,
PREM NAGAR-3rd NANGLOI,
DELHI-110041 ....PETITIONER
VERSUS
1. KHEM RAJ YADAV
S/O SH. HARMAYA
R/O VILLAGE & POST GARHI,
KALEJRI, PS CHANTI NAGAR,
TEH KHEKHRA, DISTRICT BAGHPAT, UP (DRIVER)
2. DEVINDER SIGH SHOKEEN
S/O SH. MAHENDER SINGH
R/O 191, QAMRUDDIN NAGAR,
NANGLOI, DELHI -110041 (OWNER)
3. BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.
201-201-A, 2ND FLOOR, ITL TWIN TOWER,
NETAJI SUBHASH PLACE
PITAMPURA, DELHI (INSURER) ......RESPONDENTS
AWARD 2 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV
1. Sh. Dev Singh s/o late Sh. Gambhir Singh r/o D/1/19, Vinay Enclave, Prem Nagar-3rd Laxmi Vihar, Delhi (hereinafter referred to as petitioner) filed the present petition u/s 166 & section 140 of the Motor Vehicles Act 1988 (hereinafter referred to as Act of 1988) against Sh. Khem Raj Yadav s/o Sh. Harmaya r/o village & Post Garhi, Kalejri, PS Chanti Nagar, Teh-Khekhra, District Baghpat, UP, Driver (hereinafter referred to as respondent no. 1), Devender Singh Shokeen s/o Sh. Mahender Singh r/o 191 Qamruddin Nagar, Nangloi, Delhi, owner (hereinafter referred to as respondent no.2) and Bajaj Allianz General Insurance Co. Ltd., having its office at 201-201-A, 2nd Floor, ITL Twin Tower, Netaji Subash Place, Pitampura, Delhi, Insurer (hereinafter referred to as respondent no.3) for seeking compensation in lieu of injuries received due to said accident.
2. Petitioner/injured in this case was about 42 years old working as filter maker with Chadha Industries Pvt. Ltd., 38, DLF Kirti Nagar, New Delhi and was earning Rs.6280/- per month.
3. Brief facts arising out of this case are that on 25.03.08 at about 5 p.m petitioner/injured Dev Singh was alighting from the bus bearing no. DL-1PB- 5341 at Plate Form in front of counter no.33 Bus Stand Anand Vihar, Delhi. In 3 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV the meantime before leaving the gate of the bus the driver of the bus of offending vehicle started driving the bus in a rash and negligent manner as a result of this negligent act injured fell down on the road and the front wheel of conductor side passed over the right leg of the petitioner due to that he sustained grievous injuries. Injured was taken to Dr. Hedgewar hospital and was examined vide MLC no. 755/08, thereafter he was taken to ESI hospital, Basai Darpur, Delhi and was got admitted there.
4. It is further averred that a case u/s 279/337/338 IPC was registered at PS Anand Vihar vide FIR no. 159/08. Petitioner has to incur good amount on his treatment and his treatment is still continuing. It is further pleaded that injuries will also affect the life span of the petitioner and has become permanently disabled on sustaining injuries in this accident. Copy of the disability certificate is also placed on record. The financial condition of the petitioner is badly ruined and loss suffered by the petitioner cannot be computed in its pecuniary terms. Respondent no.1 is the driver, respondent no.2 is the owner and respondent no.3 being the insurer all are jointly and severally liable to make the compensation to the petitioner and claimed Rs. 10,00,000/- on account of grievous injuries sustained by him towards all the heads besides mental pain and agony, loss of income and loss of future income, special diet and 4 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV conveyance with interest @ 12% p.a.
5. Notice of the petition was served upon all the respondents. Respondent no.1 and 2 failed to file the written statement despite opportunity given to them however, petition was contested by respondent no.3.
6. Respondent no.3 Insurance Company in his written statement controverted all the allegations as alleged in the petition and also took many preliminary objections such as no cause of action has been arisen against the answering respondent and without prejudice to the pleadings it is submitted that answering respondent is not liable to pay any amount of compensation in case it is found that driver of the offending vehicle bearing no.DL-1PB-5341 was not holding valid and effective driving license or that he had not holding any driving license at all or that he was not driving the offending vehicle as per instructions of insured/owner of the vehicle or that owner was not having valid permit and valid certificate of fitness for plying the vehicle in Delhi and also in contravention with the provisions of Motor Vehicle Act. It is further pleaded that only on considering the facts and circumstances of this case it is established that petitioner sustained injury because of his own carelessness while alighting from the running bus and not because of any wrongful act or negligent act on the part of the driver of the offending bus however, in reply to para no. 17 it is 5 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV admitted that vehicle bearing no. DL-1PB-5341 was insured with answering respondent no.3 subject to terms and conditions, exceptions and stipulations contained in the policy no. OG-07-1104-1812-00000153 and was valid from 29.3.07 to 28.03.08 and in view of the aforesaid averments requested for dismissal of the petition.
7. On the basis of pleadings from both the parties following issues were framed :
i) Whether the petitioner had sustained injuries on 25.3.08 at about 5 p.m at a Plate Form in front of Counter no.33 Bus Stand Anand Vihar, Delhi due to rash and negligent driving of respondent no.1 while driving vehicle bearing registration no. DL-1PB-5341?
ii) Whether the petitioner is entitled to any
compensation? If so, to what amount and from
whom?
iii) Relief
8. After framing of issues case was fixed for petitioner's evidence.
9. During the course of trial and before recording evidence of petitioner respondent no.1 and 2 filed their written statement on 28.11.08 and same was taken on record.
10.Petitioner appeared as PW1and filed his affidavit Ex. PW1/A stating therein all the facts which are mentioned in the petition. He also filed the documents Ex. 6
MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV PW1/1 to Ex. PW1/5 and the criminal record Ex. PW1/B consisting of 12 pages. PW1/1 is the discharge slip from the ESI hospital, Ex. PW1/2 is the disability certificate, Ex. PW1/3 is the salary certificate, Ex. PW1/4 and 5 are the ration card and election identity card of the petitioner.
11.In his affidavit he specifically stated that on 25.03.08 at about 5 p.m he was alighting from the bus bearing no. DL-1PB-5341 at Plate Form in front of counter no.33 Bus Stand Anand Vihar, Delhi. In the meantime before leaving the gate of the bus the driver of the bus of offending vehicle started driving the bus in a rash and negligent manner as a result of this negligent act he fell down on the road and the front wheel of conductor side passed over his right leg due to that he sustained grievous injuries. He was taken to Dr. Hedgewar hospital and was examined vide MLC no. 755/08, thereafter he was taken to ESI hospital, Basai Darpur, Delhi and was got admitted there. He also remained admitted there from 25.3.08 to 24.4.08 in the ESI hospital , Basai Darapur, Delhi. He further deposed that at the time of accident he was about 42 years old and was working as filter maker with Chadha Industries Pvt. Ltd. 38, DLF Kirti Nagar, New Delhi and was getting Rs.6280/- per month. He specifically deposed that accident had taken place due to the rash and negligent driving by R-1 and on the basis of inquiry conducted by the IO a 7 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV case u/s 279/337/338 IPC was registered on 25.3.08 vide FIR bearing no. 159/08 registered at PS Anand Vihar on the basis of his statement.
12.During his cross examination on behalf of counsel for R-3 he deposed that he studied upto 8th class. On 25.3.08 he had gone to Anand Vihar Bus Terminal as he intended to go to Utranchanal and the accident had taken place when he was getting down from the bus and when he was about to touch the ground it was driven by R-1 at a fast speed and he denied the suggestion that he was getting down from a moving bus. He also admitted that he received treatment from ESI hospital and he also received an amount of Rs.6500/- for 91 days from ESI. He also admitted that he had not filed any documentary proof on account of medical treatment, conveyance and special diet. He also denied the suggestion that he was not getting salary of Rs.6280/- per month. Witness also filed a discharge slip showing that the date of admission of the petitioner is 25.3.08 and date of discharge is 24.5.08 and during further cross examination he deposed that the discharge slip shown as mark P1 bears overwriting however, it is denied that discharge slip is a forged and fabricated document.
13.PW2 Saji Varghese, Manager Chadha Industries Pvt. Ltd appeared as PW2 8 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV and produced the salary slip of petitioner from January 2008 to April 2008. Copies of the same are Ex. PW2/1 to PW2/4. He also produced the register showing the name of the employees which is Ex. PW2/5. ESI deposit challan and ESI return which are Ex.PW2/6 and PW2/7 are also placed on record.
14.He further deposed that the petitioner was working as a workman in the company since 2005 and before the said period their business was a family business and petitioner was employed with them since 1989. He further deposed that had the petitioner being continued in service, he would have been gotten a salary of 6800 to 7000/- per month as the salary is going to be increased @ 7% to 10% yearly. He further deposed that after the said accident petitioner has become unable to work on a stitching machine which was being run by using right leg and thereafter he could not operate the stitching machine.
15.During his cross examination he also produced the opening letter from sl. no. 1-8 collectively Ex. PW2/R3/1 (consisting of 176 pages). Rest of his testimony is reiterated by him as submitted by him during examination in chief.
16.Dr. Rajat Gupta Orthopedic Specialist ESI hospital Basi Dara Pur appeared 9 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV as PW3 and produced the copy of permanent disability certificate and also deposed that he was one of the member of the Board issuing the disability certificate to the petitioner which bears his signature at point A. The copy of the same is already Ex. PW1/2. He further deposed that this was a case of amputation below the right knee, therefore, the petitioner was granted 50% disability for such injury.
17.PW4 Sh. Kanta Parshad Employee of ESI hospital appeared as PW4 and produced the complete treatment record of petitioner Dev Singh by virtue of which he remained admitted in their hospital from 25.3.08 to 24.5.08. The photocopy of treatment record is collectively Ex. PW4/A (consisting of 50 pages) . Thereafter PE was closed and case was fixed for respondents evidence.
18.Khem Raj Yadav appeared as R1W1 and filed his affidavit Ex. R1W1/1 stating therein that he was having a valid driving license to drive the bus and taxi through out India. He also deposed that he never drive the vehicle in a rash and negligent manner and the petitioner sustained injuries because of his own negligence while alighting from the bus. He further deposed that petitioner filed a false case only with the aim to seek compensation and the statement given 10 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV by the petitioner is not supported by any other witness.
19.During his cross examination by counsel for petitioner he admitted that a case was registered against him and he was arrested and released on bail in that case. He also deposed that he had not filed any complaint to any authority alleging therein that he was falsely implicated in this criminal case. He also deposed that he was driving the vehicle at the instance of Jagbir Singh who was having a Special Power of attorney in his name duly executed by owner of the vehicle. He also admitted that at the time of driving the offending vehicle he was not having permit in the name of Jagbir Singh . Thereafter, evidence on behalf of R-1 and R-2 was closed and case was fixed for evidence on behalf of insurance company.
20.RW Ms. Sunanda Nimisha, Sr. Executive (Legal) Bajaj Allianz General Insurance Co. Ltd. appeared as R3W1 and filed her affidavit Ex.R3W1/A bearing her signature at point A and B. She also relied upon the copies of documents which are Ex.R3W1/1 to R3W1/9. R3W1/1 is the copy of power of attorney in her favour issued by Insurance company, Ex. R3W1/2 is the notice dated 21.1.2010 issued by insurance company u/o 12 rule 8 CPC issued upon owner and Ex.R3W1/3 is the notice issued upon the driver, Ex. R3W1/4 11 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV and 5 are the postal receipts of the same, R3W1/6 is the office generated copy of insurance policy alongwith terms and conditions. Ex. R3W1/7 is the original DL verification report of DL no.C08062001244129 in the name of Sh. Khem Raj which was valid from 12.6.04 to 11.6.07. R3W1/8 is the DL verification report of second DL bearing no.C08062008571187 which was valid from 4.6.2008 to 3.6.2011 in the name of Khem Raj. Ex.R3W1/9 is the original investigator report wherein it has been informed that DL Ex.R3W1/8 was cancelled vide order of sh. Sampat Nayak, MLO and was re-issued on 4.6.08 and date of accident in the present case is 25.3.08.
21.During his cross examination by counsel for R-1 and R-2 he denied the suggestion that validity period mentioned in the DL Ex.R3W1/7 is incorrect. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
22.Sh. Jamaluddin, UDC appeared as R3W2 and produced the summoned record pertaining to driving license bearing no. C08062001244129 issued in the name of Khem Raj which was valid from 12.6.04 to 11.6.07. Office copy of the DL is Ex.R3W2/1. He also produced office copy of renewed license of Khemraj which was valid from 4.6.2008 to 3.6.2011 which is Ex. R3W2/2. 12
MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV
23.During his cross examination by R-1 and R-2 he deposed that he had seen copy of DL Ex. R3W2/3 bearing no.C08062001244129 which was valid from 12.6.07 to 11.6.2010 in the name of Khem Raj due to the reason that he had not been directed to produce the record pertaining to aforesaid DL he could not explain any more about the same, thereafter his cross examination was deferred and he was again examined on 15.9.2010. On that day he produced the record of aforesaid DL and deposed that applicant had applied for renewal of license on 19.5.07 and same was renewed on 12.6.07 with validity period upto 11.6.2010 as per their record. He further deposed that the complete computerized record/data for the period of four months i.e w.e.f April 2007 to July 2007 had been lost and copy of manual record is Ex.R3W2/4 (two pages).
24.Sh. Amit Wadhawa, Assistant Manager (Legal) Bajaj Allianz General Insurance Co. Ltd. appeared as R3W3/A and produced the insurance policy alongwith terms and conditions which has already been exhibited as Ex.R3W1/6 and certified copy of insurance policy with terms and conditions which has also been filed by the petitioner and IO of criminal case with AIR. The insurance policy issued to the insured (R-2) does not cover any claim arising out any contractual liability vide general exception clause (2) attached 13 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV with insurance policy. He also produced the certified copy of charge sheet Ex. R3W3/1, certified copy of RC Ex. R3W3/2, certified copy of permit Ex. R3W3/3, certified copy of SPA dated 15.10.05 Ex. R3W3/4, certified copy of order dated 27.3.08 by virtue of which the offending vehicle was released on superdari which is Ex. R3W3/5, certified copy of superdaginama dated 27.3.08 executed by Jagbir Singh for receiving the vehicle on superdari which is Ex. R3W3/6, certified copy of statement u/s 161 Cr.P.C dated 27.3.08 of Jagbir Singh which is Ex. R3W3/7 and it is further deposed that on the basis of aforesaid documents it is established that there is violation of section 82(1) of Motor Vehicle Act as the permit holder transferred his right in favour of Sh. Jagbir Singh without seeking permission from the STA department.
25.Sh. Veer Narain Singh, Dealing Assistant, State Transport Authority appeared as R3W4 and produced the complete record of permit of blue line bus bearing registration no. DL-1PB-5341. As per their record the permit of the bus was issued in the name of Devender Singh Shokeen and as per record their office have not transferred the permit in the name of Jagbir Singh before 25.3.08 and 15.10.2005. The detail of permit of the vehicle is Ex. R3W4/1.
26.HC Lakhmi Singh IO of this case appeared as R3W5 and deposed that investigation of this case was conducted by him and in the course of 14 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV investigation he had recorded the statement of Jagbir Singh on 27.3.08. The certified copy of the same is Ex. R3W3/7. He further deposed that as per his investigation Devender Singh was the registered owner of the vehicle and Jagbir Singh had taken the vehicle on superdari. Thereafter, respondent's evidence was closed and case was fixed for final arguments.
27.After hearing arguments and taking into consideration the facts and circumstances of this case my findings on the issues are as follows :
ISSUE -1
i) Whether the petitioner had sustained injuries on 25.3.08 at about 5 p.m at a Plate Form infront of Counter no.33 Bus Stand Anand Vihar, Delhi due to rash and negligent driving of respondent no.1 while driving vehicle bearing registration no. DL-1PB-5341?
28.On this issue, the statement of petitioner is very much relevant and in his affidavit Ex. PW1/A he specifically deposed that on 25.03.08 at about 5 p.m he was alighting from the bus bearing no. DL-1PB-5341 at Platform in front of counter no.33 Bus Stand Anand Vihar, Delhi. In the meantime before leaving the gate of the R-1 started driving the bus in a rash and negligent manner as a result of this negligent act he fell down on the road and the front wheel of conductor side passed over his right leg due to that he sustained grievous 15 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV injuries. He was taken to Dr. Hedgewar hospital and was examined vide MLC no. 755/08, thereafter he was taken to ESI hospital, Basai Darapur, Delhi and was got admitted there. He also remained admitted there from 25.3.08 to 24.4.08 in the ESI hospital , Basai Darapur, Delhi.
29.His testimony is further corroborated by filing the true copy of the record of criminal case wherein it appears that on 25.3.08 a criminal case u/s 279/337/338 IPC was also registered at PS Anand Vihar vide FIR no. 159/08 on the basis of statement of PW.1. His testimony is further corroborated with the fact that injured was taken to Dr. Hedgewar hospital and was got medically examined vide MLC no. 755/08, thereafter he was shifted to ESI hospital Basai Darapur and he remained admitted there w.e.f 25.3.08 to 24.4.08 which again suggests that petitioner received injuries due to said accident and was taken to Dr. Hedgewar hospital for receiving treatment. The copy of the charge sheet is Ex.R3W3/1, copy of the FIR, certified copy of seizure memo of DL, site plan prepared by IO, certified copy of arrest of driver, certified copy of mechanical inspection of the vehicle, certified copy of MLC, Superdaginama, certified copy of RC, driving license of R-1 further corroborates the testimony of PW1 in the same manner as has been stated by him in his petition. 16
MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV
30.The mechanical inspection dated 25.3.08 of the vehicle showing therein the fresh damages such as left side front tyre scratch coupled with the fact that same was seized from the spot further corroborates the fact that vehicle was involved in the said accident. Site plan showing the place of accident was prepared by IO and driving license, RC all were taken in possession by the IO further corroborates the testimony of PW.1.
31.In view of the aforesaid evidence adduced by the petitioner and investigation conducted by the police official and also in the absence of any evidence contrary to the petitioner evidence I am of the considered view that there is no reason to disbelieve the testimony of PW1 on this issue and accordingly, petitioner succeeded in proving that on 25.03.08 at about 5 p.m petitioner/injured Dev Singh was alighting from the bus bearing no. DL-1PB- 5341 at platform in front of counter no.33 Bus Stand Anand Vihar, Delhi. In the meantime before leaving the gate of the bus R-1 started driving the bus in a rash and negligent manner as a result of this negligent act injured fell down on the road and the front wheel of conductor side passed over the right leg of the petitioner due to that he sustained grievous injuries.
32.Accordingly, I decide this issues in favour of petitioner and against the 17 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV respondents.
ISSUE NO.2
ii) Whether the petitioner is entitled to any compensation? If so, to what amount and from whom?
33. As regard the quantum of compensation the petitioner has to be compensated for the actual expenses incurred by him and for the loss of income of his being rendered permanently disabled. Besides non-pecuniary losses are to be assessed on the basis of facts proved.
34. As regards the medical expenses incurred by the petitioner no medical bills are brought on record, however, during cross examination it is admitted that an amount of Rs.6500/- approximately were received by the petitioner from ESI and he specifically stated that he had purchased the medicine from the market but no medical bills to prove that he had purchased the medicines from market are brought on record. It is the admitted case of receiving treatment from ESI hospital and therefore, petitioner is not entitled to receive any compensation under the head of medical expenses.
35. On perusal of discharge summary and medical record of the 18 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV injured/petitioner and also keeping in view the nature of injuries on the basis of which a disability certificate Ex. PW1/2 is brought on record, thereby, it is established that it is case of amputation below the right knee thereby the petitioner received permanent disability of 50% in the lower limb.
36. Petitioner claimed his age as 42 years on the date, time and place of accident and the election identity card Ex. PW1/5 further suggests that the age of the petitioner was 39 years on 1.1.05 . The accident had taken place in the year 2008 which further corroborates that the petitioner was about 42 years old at the time of accident. On the contrary respondent no.3 failed to brought on record any evidence in rebuttal to the testimony of PW .1.
37. Petitioner brought on record a certificate Ex.PW1/3 proving thereby that he was working with Chadha Industries Pvt. Ld. having its office at 38, DLF Kirti Nagar Industrial Area Delhi. This fact is corroborated by PW2 Manager of Chadha Industries who had produced the salary slip of petitioner from January 2008 to April 2008 which are Ex. PW2/1 to PW2/4. He had also produced the register of employees Ex. PW2/5 and ESI deposit challan and ESI return Ex. PW2/6 and 7 respectively. In his testimony he specifically deposed that petitioner had drawn last salary from their office to the tune of 19 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV Rs.6280/- including perks. It is also brought on record that had he been continued in service he would have gotten salary of 6800 to 7000/- per month, as the salary is going to be increased @ 7% to10% p.a. It is also brought on record that due to the said injury the petitioner has become totally disabled to operate the stitching machine as the right leg is being used in operating the stitching machine. Thereby it is established that petitioner was employee of Chadha Industries and was earning Rs.6280/- per month at the time of accident. It is also established that the petitioner was operating a stitching machine by using his right foot which has been amputated thereby, he has become permanently disabled to operate the stitching machine.
38. Ld. counsel on behalf of petitioner further submitted that admittedly the petitioner was operating a stitching machine by using his right leg which have been amputated thereby the petitioner has become permanently disabled @ 50% towards lower limb and this 50% disability has to be compensated on the basis of 100% permanent functional disability in his earning capacity and also placed his reliance on a decided case cited as K. Narasimha Muthy Vs. Manager Oriental Insurance Co. Ltd. & another 2004 ACJ 1109.
20
MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV
39. For assessing the future compensation in the present case reference is also being had to the provisions of Second Schedule Clause (5) of the Motor Vehicle Act which provided as under:-
Clause 5:- Disability in non-fatal accidents:-
The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents.
Loss of income, if any, for actual period of disablement not exceeding fifty two weeks. Plus either of the following:-
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.
Injuries deemed to result in Permanent Total Disablement/ Permanent Partial Disablement and percentage of loss of earing capacity shall be as per Schedule I under Workman's Compensation Act, 1923.
40. I also placed my reliance on a decided case cited as "Sarla Verma Vs. Delhi Transport Corporation 2009 ACJ 1298".
41. Following the formula laid down in clause (5) and the observations 21 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV given by their lordships in the aforesaid decided cases and also taking into consideration the evidence adduced by the petitioner, I am of the view that petitioner succeeded in establishing the particulars of his employment and on the basis of salary certificate his yearly income is to be assessed @ Rs.6280/- per month with 50% future increase which comes to Rs.9240/- on the basis of evidence brought on record.
42. The right leg of the petitioner below knee was amputated thereby the injury is resulted into 50% permanent disability towards right lower limb. The disability certificate is Ex. PW1/2, thereby petitioner has become entitled to receive Rs.3,00,000/- as compensation towards non pecuniary heads.
43. On the other hand Ld. counsel on behalf of insurance company submitted that on considering the nature of injury the disability towards whole body is to be assessed as 25% towards whole body instead of 50%.
44. But on following the observation given by their lordships in K. Narasimha Murthy's case (supra) the 50% permanent disability has to be compensated 50% functional disability in his earning capacity despite of the fact that the injury resulted in 50% permanent disability towards lower limb 22 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV only, therefore, the contention raised by Ld. counsel for insurance company is not tenable in law hence rejected.
45. Considering the age of petitioner as 42 years the multiplier of 15 is appropriate and accordingly I assess the loss towards future income to the tune of Rs.9240/-x15x12x50/100 =Rs.8,31,600/-.
46. Ld. counsel for petitioner submitted that the present case is a case of amputation with 50% disability, therefore, petitioner has become entitled for compensation of Rs.3,00,000/- towards non pecuniary heads and placed his reliance on the decided case cited as Oriental Insurance Co. Ltd. Vs. Vijay Kumar Mittal, 2008 ACJ 1330 wherein it is observed that :
"In the cases of amputation the general principle which should govern the assessment of damages in personal injury cases is that the court should award to the injured person such a sum as will put him in the same position as he would have been in, if he had not sustained the injuries."
and also relied upon a decided case cited as Arun Sondhi Vs Delhi Transport Corporation, I (2001) ACC 615, and Siddhi Gopal Dixit @ Siddh Gopal Dixit Vs Siya Ram & Ors. MACT appeal no. 573/2009 decided on 03.03.2010, I carefully perused the observations given by their lordships in the 23 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV aforesaid decided case wherein it is observed as under:-
"A trend which emerges is that between the years 1985 and 1990, the courts have been awarding about Rs. 3,00,000/- under the head 'non-pecuniary damages' for amputation of leg resulting in permanent disability of 50 % and above".
47. However, the pain and suffering of the petitioner in the present case cannot be measured in terms of money as the suffering is going to be with him for his whole life. The present case is a case of amputation of right leg below knee, therefore, in view of the observation given by their lordships in the aforesaid decided case and taking into consideration the facts and circumstances of this case I am of the considered view that petitioner has become entitled to Rs.3,00,000/- towards non pecuniary heads i.e mental pain and agony, conveyance, better diet and attendant etc. I accordingly assessed Rs.3,00,000/- towards on these non pecuniary heads.
LIABILITY
48. On the point of deciding liability by whom the amount of compensation is payable Ld. counsel on behalf of petitioner submitted that the offending vehicle was admittedly insured with R-3, R-1 the driver was having the valid DL to drive the offending vehicle at the time of accident and R-2 was the registered owner of the offending vehicle and was also having a valid 24 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV permit to ply the vehicle on a route no.236 from Nangloi J.J. Colony to Anand Vihar ISBT. The route via is also prescribed and accident had taken place in front of counter no.33 bus stand Anand Vihar Delhi i.e well within the area falling on the route of the offending bus. No evidence contrary to the testimony of petitioner's witness is brought on record by the respondents including insurance company. In such circumstances, R-1, R-2 and R-3 all have become jointly and severally liable to make the payment of compensation and R-3 is liable to indemnify R-1 and R-2.
49. On the contrary Ld. counsel for insurance company submitted that admittedly the permit was granted in favour of Devender Singh Shokeen s/o Mahender Singh impleaded as R-2 in this case. On perusal of the criminal case record/investigation wherein it is brought on record that on 27.3.08 statement of Sh. Jagbir Singh was recorded by the IO which is Ex. R3W3/7 wherein it is stated that R-2 was the registered owner of the vehicle and Jagbir Singh had taken the vehicle on superdari. A special power of attorney mentioning therein that R-2 appointed Sh. Jagbir Singh s/o Sh. Bahadur Singh as his special attorney thereby authorizing him to take over the possession of the vehicle and to ply on the route mentioned in the permit in the name of Devender Singh which amount to transfer of the permit in the name of Jagbir 25 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV Singh without seeking permission from the Transport Authority and thereby the provisions of section 82 (1) of Motor Vehicle Act is violated which reads thus :
"Transfer of permit - (1) Save as provided in sub section (2), a permit shall not be transferable from one person to another except with the permission of the transport authority which granted the permit and shall not, without such permission, operate to confer or any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorized by the permit."and also placed his reliance on a decided case cited as National Insurance Co. Ltd. Vs. Anjana Sham and others 2007 (7) SCC 445.
50. Ld. counsel for insurance company further submitted that irrespective of the fact that the person other than the permit holder was in possession of the vehicle it is also brought on record that on the date of accident R-1 was also not having a valid driving license. The inquiry with regard to driving license bearing no. C08062001244129 which was issued to R-1 Khem Raj shows that the same was valid from 12.6.04 to 11.6.07 and on perusal of DL bearing no. C08062008571187 shows that it was valid from 4.6.2008 to 3.6.2011, however, the accident has taken place on 25.3.08 and on the date of accident R-1 was not having a valid driving license.
51. On the contrary on the issue of validity of driving license Ld. counsel for petitioner submitted that R3W2 Jamaluddin, UDC Wazirpur Transport Authority was examined and he produced a letter no. MLO/NWZ-1/2010/822 26 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV dated 14.9.2010 duly signed by MLO (NWZ-1) which is Ex. R3W2/4 wherein it is specifically stated that R-1 moved an application for renewal of the aforesaid license in their office on 19.5.2007 as per manual record, the name of the applicant stands at sl. no. 14 dated 19.5.07. The said license was renewed and issued on 12.6.07 with the validity upto 11.6.2010 and in the said document it is specifically stated that said license was genuine as per their record, however, accident has taken place on 25.3.08 which specifically suggests that R-1 was in possession of valid driving license on the date, time and place of accident. The photocopy of driving license which is Ex. R3W2/3 is also brought on record which clearly shows its validity on the date of accident.
52. On the issue of execution of Special Power of Attorney in favour of Jagbir singh it is pleaded that on perusal of the Special Power of Attorney it transpires that the intention to execute the said power of attorney is not of transferring the permit of the vehicle in the name of Jagbir Singh however, this SPA was executed for the purpose to sell, to receive sale consideration, to apply and get the necessary sale permission/ NOC from the concerned authorities, to execute proper sale deed either in the name of intending purchaser or his/her nominees to get the same registered before concerned sub registrar and on taking into consideration the contents of the SPA the 27 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV intention of the permit holder to let out the permit or to execute an agreement on receiving consideration is not established. No receipt for making specific payment for plying the vehicle by SPA holder is also executed however, it is established that no consideration is disclosed in the said document Ex. R3W3/4 and without intention of transferring the permit or to ply the vehicle by one Jagbir Singh without consideration it cannot be said that the permit holder had an intention to transfer the permit in favour of SPA holder. This fact is further corroborated with the testimony of R-1 Khem Raj as in his affidavit he has no where stated that he was working with the SPA holder and R-2 was not the actual owner or permit holder of the offending vehicle. During his cross examination he also denied the suggestion that he was being paid by Jagbir Singh rather it is stated by him that he was being paid on the instructions of owner/permit holder of the offending vehicle which clearly suggests that the intention to transfer the permit by the permit holder in favour of Jagbir Singh is not proved, therefore, provisions of Section 82(1) of Motor Vehicle Act is not violated in this case and submitted that there is no violation of the terms and conditions mentioned in the insurance policy as well as any of the Motor Vehicle rules.
53. After hearing arguments and taking into consideration the facts and 28 MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV circumstances of this case and the observations given by their lordships in the aforesaid decided cases as well as the contentions raised by Ld. counsel for both the parties I carefully perused the contents of SPA and the intention of the permit holder to execute such SPA and is of the considered view that SPA alone itself is not sufficient to establish the intention of the permit holder either to transfer the permit in the name of SPA holder or to let out the said vehicle with consideration is disclosed in the SPA, therefore, I am not in agreement with the contention of Ld. counsel for the insurance company on the issue of granting right of recovery to the insurance company, respondent no.3 against R-1 and R-2.
54. Accordingly, I am of the view that insurance company is not entitled for any sort of recovery right against R-1 and R-2. I decide this issue accordingly.
55. After hearing arguments on behalf of Ld. counsel for both the parties, I carefully perused the evidence adduced by the petitioner and the observation given by their lordships in the aforesaid case, the petitioner is become entitled for the total amount of compensation towards all the heads as follows:-
Sl.No. On Account of Amount (Rs.)
1 Towards loss of future income Rs. 8,31,600/-
29
MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV
Sl.No. On Account of Amount (Rs.)
Towards mental pain and agony, Rs. 3,00,000/-
3 conveyance, better diet and attendant
Total Rs.11,31,600/-
56. I accordingly, grant a compensation to the tune of Rs.11,31,600/- to the petitioner with interest @ 7.5% p.a. from the date of filing of the petition till its realization minus the amount of interim compensation, if any and interest excepted if any. R-3 Insurance Company is directed to make payment of Rs.11,31,600/- with interest @ 7.5% p.a to the petitioner w.e.f the date of filing of the petition till its realization.
RELIEF
57. The insurance company is hereby directed to deposit the award amount with upto date interest in UCO bank branch, KKD branch in the name of the petitioner within 30 days from the date of award under the intimation to this court and bank would keep this amount in an account in the name of Judge MACT East and would wait for the further directions as to the disbursement of the same till the compliance is reported.
58. No order as to costs. An attested copy of this award alongwith two recent photographs of the petitioners with court stamp be also sent to the bank for facilitating the compliance.
30
MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV
59. Put up for compliance on 01.03.2012.
Announced in the open court (B.S. CHUMBAK)
on 27/01/2012 PO MACT/EAST DISTT.
KKD:DELHI
31
MACT NO.999/08 DEV SINGH VS. KHEM RAJ YADAV
27/1/2012
Present: None.
Final arguments already heard.
Final award to the tune of Rs.11,31,600/- to the petitioner with interest @ 7.5% p.a. from the date of filing of the petition till its realization minus the amount of interim compensation, if any and interest excepted if any. R-3 is directed to make payment of Rs.11,31,600/- with interest @ 7.5% p.a to the petitioner w.e.f the date of filing of the petition till its realization.
No order as to costs. An attested copy of this award along with two recent photographs of the petitioners with court stamp be also sent to the bank for facilitating the compliance.
Put up for compliance on 01/03/2012 (B.S. CHUMBAK) PO MACT EAST DISTRICT DELHI:27.1.2012