Delhi District Court
Ms. Shallu vs M/S Sarvashakti Tour & Travels on 13 September, 2010
1
IN THE COURT OF SURINDER KUMAR SHARMA:
JUDGE : MOTOR ACCIDENT CLAIM TRIBUNAL:
KARKARDOOMA COURTS, DELHI
Suit No.59/2009
Ms. Shallu
D/o Sh. Pardeep Kumar Gupta
R/o H. No. 2, Block-0, Welcome,
Delhi.
...... Petitioner
Vs
1. M/s Sarvashakti Tour & Travels,
Sector-3, Pushap Vihar,
New Delhi.
11nd Address :
1716, Mathura Road,
Faridabad, Haryana.
2. The National Insurance Company Ltd.
Jeevan Bharti Building,
Connaught Place, New Delhi
3. Hari Singh
S/o Sh. Ram Singh
R/o 1/188, Dakshin Puri,
Ambedkar Nagar, Delhi-44.
.... Respondents
Date of Institution : 18. 10.2006 Date of assignment to this court : 18.08.2009 Date on which reserved for Award : 31.08.2010 Date of Order : 13.09.2010 Suit No. 59/2009 Page 1 /10 2 Award This is a petition U/s 166/140 of Motor Vehicle Act 1988 (here-in-after called the Act) filed by the petitioner for grant of compensation.
Briefly stated the facts of the case as averred in the claim petition are that on 30.4.2004 at about 10.05 p.m. the petitioner Ms. Shallu was traveling in TATA Indica Car No. HR-38-FT-6670. The driver of the said car was driving the car at a very hight speed, in a rash and negligent manner. When the petitioner reached at G.T. Road, ITI, Police Booth, Delhi, the car struck against a truck, as a result of which, she sustained grievous injuries on her body. As per the petitioner, the accident was caused due to rash and negligent driving on the part of the driver of the offending car. The petitioner has prayed for an award of Rs.5,00,000/-.
Notice of the claim petition was issued to the Respondents.
Respondent No.2 Insurance Company filed Written Statement wherein it has stated that the copy of the insurance policy filed by the petitioner is a forged policy as the same was never issued by the Respondent No.2 Insurance Company. It was further submitted that the said policy was issued by the Respondent No. 2 for a two wheeler scooter and not for a car. It is submitted that as the offending car was not insured with the Respondent No.2, hence, the name of Respondent No.2 be deleted from the array of the parties. It Suit No. 59/2009 Page 2 /10 3 was prayed that the petition may be dismissed.
During trial Respondent No.1 and No.3 were proceeded ex-parte.
On the pleadings of the parties, following Issues were framed by my Ld. Predecessor on 15.01.2008.
1. Whether Ms. Shallu sustained injuries due to rash and negligent driving of Tata Indica Car No. HR-38-FT-6670 by R-3? OPP.
2. Whether Insurance Policy relied upon by the petitioner in respect of above mentioned vehicle is forged and if so to what effect ? OPR2
3. Whether petitioner is entitled to get any compensation, if so, from whom and of what amount?
4. Relief.
Vide order dated 6.2.2008 on the statement of Sh. Lokesh Kumar Ld. Counsel for the petitioner regarding withdrawing of the present case against the Insurance Company/Respondent No. 2, the petition agaisnt National Insurance Company was dismissed.
Vide order dated 16.5.2009 my Ld. Predecessor again reimpleaded the Insurance Company as the Respondent.
In support of her case, the petitioner has examined three witnesses including herself as PW-1. PW-2 Sh. Rahul Singh and PW-3 Sh. Mohinder Jeet Singh.
In support of its case, The Respondent No. 2 The Suit No. 59/2009 Page 3 /10 4 National Insurance Company Ltd. has examined one Sh. P.K. Bakshi Asstt. Manager from National Insuance Company Ltd as R2W1.
I have heard Sh.Lokesh Kumar Advocate for the Petitioner and Ms. Richa Jindal Advocate for Respondent No.2 Insurance Company. I have also perused the file. Issue No.1.
In support of Issue No. 1, petitioner has examined herself as PW-1 and supported the averments as made in the claim petition.
It was submitted by Ld. Counsel for the petitioner that the accident took place due to rash and negligent driving of the offending vehicle. It was further submitted that an FIR was registered against Respondent No.3 Hari Singh, the driver of the offending vehicle at Police Station Seemapuri in this regard.
The Hon'ble High Court of Delhi in a case reported as National Insurance Company Ltd. Vs. Pushpa Rana and others 2009 ACJ-287 has observed that certified copy of criminal court, such as FIR, recovery memo and mechanical inspection report of vehicle are documents of sufficient proof to reach the conclusion that driver was negligent, proceedings under M.V.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.
The perusal of the file shows that in order to Suit No. 59/2009 Page 4 /10 5 prove its case, the petitioner has examined herself as PW-1. She has stated that on 30.4.2004 at about 10.50 p.m., she was proceeding towards her house from her office. When offending the car reached at Dilshad Garden, Flyover, then a truck was going ahead of their car. She further stated that the car driver was driving the car in a rash and negligent manner, as a result of which, the car struck against the truck, which was ahead of the car. She sustained multiple fracture on her upper jaw and the maxilla. She suffered serious injuries on her face, left arm and left leg. On the other hand, Respondent No.3 Hari Chand has not led any evidence to prove that he was not driving the offending vehicle in a rash and negligent manner and the petitioner has not sustained injuries due to his rash and negligent driving. Therefore, from the statement of petitioner PW-1 & the record of the criminal case registered at Police Station Seema Puri vide FIR No. 165/04 U/s 279/ 337 IPC, it is proved that the petitioner sustained injuries in the accident which occurred on 30.04.2004 due to rash and negligent driving of Tata Indica Car No. HR-38-FT-6670 The issue is decided accordingly.
Issue No. 2 :
The onus to prove this issue is upon the Respondent No.2 Insurance Company. To prove this issue, Respondent No.2 has examined one Sh. P.K. Bakshi Asstt. Manager from National Insurance Company. He has stated that he has brought the Cover Note No.0642596, which was Suit No. 59/2009 Page 5 /10 6 issued in favour of Varaich Finance Ltd. for vehicle No. DL- 8S-V-1126 Two Wheeler LML-Freedom for the period from 12.11.2003 to 11.11.2004. The copies of the same are Ex. R2W1/1 and Ex. R2W1/2. He has also proved the copy of the Insurance policy of the said vehicle as Ex. R2W1/3.In his cross examination this witness has admitted that every cover note has four copies and the record which he has brought contained only one copy of the cover note. He has further stated that the cover note No. 0642596 was issued to Shivaji Motors and he cannot tell the address of the same. This witness has further admitted that the blank book was issued to the agent. He further admitted that in the present case no carbon was kept in his presence for making the carbon copies of the cover note and the cover notes were not prepared in his presence or any other officer of the company. This witness has further stated that they do not destroy the disputed documents. He admitted that it was not mentioned on Ex.
R2W1/2 that the agent has received the premium amount and deposited the same with the company.
He further admitted that there is no cutting in the cover note Ex. P-8 i.e. Insurance Policy of the offending vehicle which is produced by the petitioner and he also admitted that it looks like the original policy. He stated that he cannot say if their company has ever done the insurance of the vehicle of Sarvshakti Tours and Travels. He has further admitted that it has come in the knowledge of the company Suit No. 59/2009 Page 6 /10 7 that the two separate vehicles were insured against the same cover notes. He has also admitted that their company did not take any step to find out the truth. Therefore, under these circumstances, I am of the view that the Respondent No.2 Insurance Company has failed to prove that the cover note No.0642596 which was relied upon by the petitioner was issued in favour of two wheeler and is a forged one.
The issue is decided accordingly.
Issue No. 3 :
In issue No. 1, it has held that the petitioner has sustained injuries in the accident due to rash and negligent driving of Car No. HR-38-FT-6670, so. the petitioner is entitled for compensation.
The petitioner has stated that she spent about Rs.80,000/- on her medical treatment. However, she has stated that she submitted that that all her original medical bills and prescriptions including her treatment record to the employer, who had sent it to the Insurance Company for reimbursement. She further stated that she has received complete reimbursement of her medical bills from the Insurance Company. As the petitioner has received the complete reimbursement of her medical bills, she is not entitled for the payment of any medical bills incurred on her treatment as she had already taken the payment of the same .
The petitioner has stated that she has not received any amount towards conveyance and special diet. She has Suit No. 59/2009 Page 7 /10 8 further stated that she was treated by the doctors at East of Kailash also and for that she had spent lot of amount on her conveyance. In total, she has spent a rum of Rs. 10,000/-. She has spent Rs. 6000/- Rs. 7000/- on special diet. The petitioner has filed no documentary proof regarding her conveyance expenditure and special diet However, as the petitioner sustained grievous injuries due to the accident and remained admitted in the hospital and she has also took treatment from the other hospitals also, so, I assess the amount of compensation on account of conveyance and special diet as Rs. 8,000/-.
As the petitioner sustained grievous injuries due to the accident, so, I assess the amount of compensation on account of pain and suffering as Rs. 5,000/-.
The case of the petitioner is that she was working as System Executive with NITT Technologies at Mathura Road, Delhi and was getting Rs. 3,10,345/- per annum. Due to the said accident, she remained on leave for two months. She further stated that as per her office service rules, she is entitled to get leave encashment. She suffered the loss of two months leave encashment as now she will not get the amount of encashment leave for two months from her office. She filed her original salary certificate and leave certificate, which are Ex. PW-1/1 and Ex. PW-1/3. As per her salary certificate Ex.PW-2/B, the gross monthly salary of the petitioner was Rs. 17,000/-. So, in my view, loss of salary for the two months Suit No. 59/2009 Page 8 /10 9 can be given to the petitioner. So, I calculate loss of salary of two months as Rs. 17,000/- x 2 = Rs.34,000/-.
The petitioner has stated that during the period of her hospitalization, surgery was conducted on her upper jaw and wiring were inserted in her upper jaw. The scars are still visible with naked eyes. Due to the accidental injuries, her face is disfigured and the same does not look normal. As the face of the petitioner is disfigured, so, I award Rs. 20,000/- for the disfigurement of the face of the petitioner due to the said accident.
Therefore, in view of the above, I calculate the amount of compensation payable to the claimants as under :
Conveyance & Special diet : Rs. 8,000/-
Pain ans suffering : Rs.5,000/-
Loss of salary : Rs. 34,000/-
Disfigurement of face : Rs. 20,000/
Total : Rs. 67,000/-
It was contended by Ld. Counsel for Respondent No.2 Insurance Company that the cover note filed by the petitioner was forged, so the Respondent No. 2 Insurance Company is not liable to pay compensation.
In Issue No.2 above, it was held that the Respondent No.2 Insurance Company has failed to prove that the cover note No.0642596 which was relied upon by the petitioner was issued in favour of two wheeler and is a forged one, so, the Respondent No.2 The National Insurance Suit No. 59/2009 Page 9 /10 10 Company Ltd. is liable to pay the compensation to the petitioner.
Issue No.: 4 ( Relief ) In view of the findings on the Issues above, a compensation of Rs. 67,000/- is granted to the petitioner to be paid by Respondent No. 2 The National Insurance Company Ltd. along with interest at the rate of Rs. 7.5 % per annum from the date of filing of the petition till its realization.
Copy of this Award be supplied free of costs to the parties.
No order as to costs.
Announced in Open court On this 13th September, 2010 ( Surinder Kumar Sharma ) Presiding Officer, MACT Karkardooma Courts, Delhi Suit No. 59/2009 Page 10 /10