Delhi District Court
Shri Vikram Singh (Aged About 26 Yrs.) vs The Oriental Insurance Co. Ltd. ... on 7 June, 2013
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS, NEW DELHI
MACT No. 182/12/11 AND MACT No. 362/12
IN THE MATTER OF :
(i) MACT No. 182/12/11
Shri Vikram Singh (Aged about 26 Yrs.)
S/o Shri Daya Nand Singh
R/o Village & P.O. Rawta,
P.S. Jaffarpur, Najafgarh,
New Delhi - 110 073.
... Claimant
Versus
1. The Oriental Insurance Co. Ltd. (D.O.12), (Insurer)
7678, Singh Sabha Road,
Shakti Nagar, Delhi - 110 007.
(Vide Insurance Covernote ZA No. 111502 covering the risk from
19/11/2010 to 18/11/2011).
2. M/s. Sumitra Carrier, (Owner)
Through its Manager / Proprietor / Partner,
H. No. 113, Village Kapashera, Heera Public School,
Delhi - 110 037.
Also at: H. No. 1560, Sector - 10A,
Gurgaon, Haryana.
3. Shri Dalip Singh, (Driver)
S/o Shri Bhagu Ram,
Jhuggi No. 155, BSS Camp,
Rajokari Pahari,
New Delhi.
... Respondents
MACT No. 182/12/11 AND MACT No. 362/12 Page 1 of 24
FILED ON : 03.06.2011
RESERVED ON : 03.06.2013
DECIDED ON : 07.06.2013
AND
(ii) MACT No. 362/12
Shri Vikram Singh, (Aged about 28 Yrs.)
S/o Shri Daya Nand Singh,
R/o Village & P.O. Rawta,
P.S. Jaffarpur, Najafgarh,
New Delhi - 110 073.
... Claimant
Versus
1. The Oriental Insurance Co. Ltd. (D.O.12), (Insurer)
7678, Singh Sabha Road,
Shakti Nagar, Delhi - 110 007.
(Vide Insurance Covernote ZA No. 111502 covering the risk from
19/11/2010 to 18/11/2011).
2. M/s. Sumitra Carrier, (Owner)
Through its Manager / Proprietor / Partner,
H. No. 113, Village Kapashera, Heera Public School,
Delhi - 110 037.
Also at: H. No. 1560, Sector - 10A,
Gurgaon, Haryana.
3. Shri Dalip Singh, (Driver)
S/o Shri Bhagu Ram,
Jhuggi No. 155, BSS Camp,
Rajokari Pahari,
New Delhi - 38.
... Respondents
MACT No. 182/12/11 AND MACT No. 362/12 Page 2 of 24
FILED ON : 24.08.2012
RESERVED ON : 03.06.2013
DECIDED ON : 07.06.2013
J U D G M E N T :
1. These are two claim petitions which are filed by the same claimant Shri Vikram Singh for grant of compensation. Whereas Claim Petition MACT No. 182/12/11 is filed under Section 166 & 140 of the Motor Vehicles Act, 1988 for grant of compensation for injuries suffered by the claimant in a Road Traffic Accident on 17.12.2010, Claim Petition MACT No. 362/12 is filed by the same claimant for compensation for damage to his motorcycle bearing Registration No. DL8SND1613 which was damaged in the same accident.
2. As all the three respondents in both the claim petitions are same and as both the claim petitions have arisen out of same accident, they are being disposed of vide a common judgment.
3. First facts stated in Claim Petition which is MACT No. 182/12/11 which is for compensation for injuries suffered by the claimant in the accident are being taken up for consideration.
4. It is stated in this claim petition that on 17.12.2010, at about 11.30 p.m., the claimant was going on his Motorcycle No. DL8SND1613 towards his residence at Najafgarh via Sector 24 and 26, Dwarka, New Delhi. At Bharthal Chowk, near crossing of Sector 24 and 26, Dwarka, the offending vehicle bearing Registration MACT No. 182/12/11 AND MACT No. 362/12 Page 3 of 24 No. HR55G2349 being driven in a rash and negligent manner by Respondent No. 3, hit the motorcycle of the claimant from behind resulting in grievous injuries to him.
5. It is stated that FIR No. 310/10 dated 18.12.2010 under Section 279/337 of IPC was registered against Respondent No. 3 at P.S. Sector 23, Dwarka, New Delhi.
6. It is stated that the claimant had suffered head injury, multiple fractures of left 3rd to 8th Ribs and Abrasions all over his body.
7. It is stated that initial treatment was given to the claimant at Ayushman Hospital, Dwarka and thereafter at Artemis Hospital, Gurgaon and also at ESIC Hospital, Gurgaon, Haryana.
8. It is stated that the claimant had remained admitted in Ayushman Hospital from 17.12.2010 to 18.12.2010 and in Artemis Hospital from 18.12.2010 to 03.01.2011 and lastly he had remained admitted in ESIC Hospital from 13.04.2011 till 20.05.2011.
9. It is stated that the claimant was 26 years of age at the time of accident (DOB 26.01.1985) and he was employed with M/s. Orient Craft Ltd., Gurgaon, Haryana as a helper at a salary of Rs.8,000/ per month.
10. It is stated that the treatment of the claimant was still continuing.
11. Therefore, claimant has claimed a compensation of Rs. 50 Lacs with interest @ 15% per annum from the date of claim petition till its realization.
12. Insurance company has filed its written statement and has taken a preliminary objection that the driving license of MACT No. 182/12/11 AND MACT No. 362/12 Page 4 of 24 Respondent No. 3 was found to be fake on verification by the police authorities as per report of Investigating Officer. Therefore, the insurance company denied its liability to pay any compensation to the claimant or to indemnify the insured.
13. Rest of the contents of the claim petition were also denied but factum of insurance of the offending vehicle on the date of accident was admitted.
14. Respondent No. 2 and 3 were proceeded ex parte.
15. From the pleadings of the parties, following issues were framed in:
1. Whether Vikram Singh, had sustained injuries on his person in an accident which took place on 17.12.2010 due to negligent driving of vehicle bearing registration no. HR55G2349 being driven in a negligent manner by respondent no. 3, owned by respondent no. 2 and insured with respondent no. 1? ..... OPP
2. In case, issue no. 1 is decided in favour of petitioner, to what amount of compensation he is entitled to and from whom? ...... OPP
3. Relief.
16. First witness examined by the claimant in this inquiry was one Shri Satpinder Singh, Administrator of Ayushman Hospital who stated that the claimant was treated in that hospital from 17.12.2010 till 18.12.2010 and the claimant had spent Rs. 23,840/ and IPD bill of that amount was proved as Ex.PW1/1.
17. Dr. Jitender Pal Singh, Junior Specialist (Orthopedics) from Rao Tula Ram Memorial Hospital, New Delhi MACT No. 182/12/11 AND MACT No. 362/12 Page 5 of 24 was examined as PW2. He proved disability certificate given to the claimant as Ex.PW2/1. As per this certificate, the claimant has suffered 100% permanent disability in relation to his both lower limbs which is non progressive and not likely to improve for the rest of his life. PW2 stated that the claimant is a case of Traumatic Paraplegic (Paralysis) with Bowel / Bladder involvement and will require external aid like Catheter every 4 to 6 hours to empty bladder. PW2 deposed that even if claimant laughs loudly or coughs or sneezes, he can pass stool and urine involuntarily. He deposed that the claimant will not be able to stand on his legs for the rest of his life.
18. Dr. Atul Soni was examined as PW3 and he proved treatment record of the claimant in ESIC Hospital as Ex.PW3/1. As per discharge slip of that hospital, the claimant had remained admitted in that hospital from 13.4.2011 till 20.05.2011.
19. Claimant himself entered in the witness box as PW4 and stated similar facts in his evidence by way of affidavit as were already stated by him in his claim petition. He proved his voter card as Ex.PW4/1, driving license as Ex.PW4/2, Certificate of CBSE Examination2001 as Ex.PW4/3, discharge summary of Artemis Hospital as Ex.PW4/4, treatment record at Rao Tula Ram Hospital as Ex.PW4/5, treatment record at Chaudhary Brahm Prakash Ayurvedic Charak Sansthan as Ex.PW4/6, treatment record at AIIMS as Ex.PW4/7, bills for purchase of medicines etc. as Ex.PW4/8, blood supply report of Blood Bank of Mata Chanan Devi Hospital as Ex.PW4/9 and lastly his salary slips w.e.f. March, 2010 till October, 2010 as Ex.PW4/10.
MACT No. 182/12/11 AND MACT No. 362/12 Page 6 of 2420. In cross examination, he deposed that at the time of accident, he was returning back after doing duty in the company as his duty hours continued till late in the evening. Suggestion that the accident took place due to his own mistake was denied by him.
21. Ms. Sarita Rani, Record Clerk of Artemis Hospital entered in the witness box as PW5 and proved treatment record of the claimant in that hospital as Ex.PW5/A.
22. Shri Sudhir Kumar from M/s. Orient Craft Ltd. where the claimant was employed at the time of accident entered in the witness box as PW5 (this witness should have been referred as PW6 but by clerical mistake was referred as PW5). He proved salary slip of the claimant for the month of JuneNovember, 2010 as Ex.PW5/1, salary details of the claimant from September, 2007 till December, 2010 with expected calculation after accident as Ex.PW5/2 and personal information of the claimant was proved as Ex.PW5/3. He deposed that claimant is still their employee but is not given any salary w.e.f. 17th December, 2010.
23. In cross examination, he denied a suggestion that the claimant was not a permanent employee or his income would not have increased with the passage of time. He also stated that the claimant can report for duty when medically fit on the same post.
24. Father of the claimant Shri Dayanand Singh entered in the witness box as PW6 and proved few bills for purchase of medicines etc. and treatment of the claimant as Ex.PW6/29.
25. Shri Rajinder Singh entered in the witness box as PW7 and stated that he is registered owner of a taxi bearing Registration No. DL1D6894 which was used by the claimant for MACT No. 182/12/11 AND MACT No. 362/12 Page 7 of 24 going to the hospitals. He stated that he had taken the claimant to hospitals around 4050 times and he was charging Rs.600/ for taking the claimant to Gurgaon and Rs.400/ for taking the claimant to ESIC Hospital at Najafgarh. He also stated that he had taken the claimant on several occasions to AIIMS as well as to Khera Hospital.
26. Dr. Deepak of Artemis Hospital was examined as PW8 who proved estimate for future treatment as Ex.PW8/1. As per this, the claimant was advised plastic surgery and stem cell implant for large bed sores which were non healing. Approximate cost of this treatment was assessed as Rs. 3.50 Lacs. He deposed that the estimate was given by Dr. Arun Saroha whose signatures he identified. He deposed that the claimant needs flap rotation and stem cell implant for large bed sores which are non healing and for spinal cord injury. He deposed that stem cells when taken from bone marrow can grow into any kind of cell in the body and in this case it may grow as a nerve cell so that the continuity of the spinal cord may be restored. However, he also stated that he has not seen the patient and possibility of restoring continuity of spinal cord after two years of accidental injuries is unlikely.
27. No other witness was examined by the claimant.
28. On behalf of the Insurance Company, its Administrative Officer Shri V.D.Talwar entered in the witness box as R3W1 and relied on report filed by the Investigating Officer to contend that the Driving License is fake. He exhibited the report as Ex.R3W1/A and certified copy of the insurance policy as Ex.R3W1/1. He deposed that as the insured has caused breach of terms and conditions of policy, insurance company be exonerated.
MACT No. 182/12/11 AND MACT No. 362/12 Page 8 of 2429. Husband of the owner of the offending vehicle Shri Jai Pal Singh Yadav had appeared in this Tribunal and on his oral request, he was given an opportunity for deposing in this inquiry as R2W1. He stated that Respondent No. 3 was engaged by him. He had tested driving skill of Respondent No. 3 and had also seen driving license of Respondent No. 3 issued by Licensing Authority, Mathura which appeared to him to be genuine. He deposed that the driver of the offending vehicle also had a license issued by the Licensing Authority, Gurgaon which was proved as Ex.R2W1/1.
30. In cross examination, he denied suggestions that neither he had tested driving skills of the driver nor he had seen his driving license before employing him as driver.
31. No other witness was examined by any other party.
32. Arguments were addressed by Shri Ashish Gupta, learned counsel for the claimant and Ms. Kirandeep Kaur, learned counsel for the insurance company.
33. Issue wise findings are as under: ISSUE NO. 1:
34. Burden of proving this issue is on the claimant.
35. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, it is for the claimant to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
36. This is sine qua non for getting the relief.
37. Claimant has stated in his claim petition that on MACT No. 182/12/11 AND MACT No. 362/12 Page 9 of 24 the date of accident, the offending vehicle had hit his motorcycle from behind resulting in grievous injuries to him.
38. Respondent No. 3 was the best person to deny allegations of rash and negligent driving made against him by the claimant but for reasons best known to him, he did not file any written statement.
39. Claimant has made similar allegations of rash and negligent driving against Respondent No. 3 in his evidence by way of affidavit also. But when claimant entered in the witness box Respondent No. 3 did not crossexamine him.
40. Moreover, Respondent No. 3 did not enter in the witness box to prove his innocence.
41. Police after investigation has filed chargesheet against Respondent No. 3 under Section 279/338 of IPC which is also prima facie suggestive of negligence of Respondent No. 3 in driving the offending vehicle.
42. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be MACT No. 182/12/11 AND MACT No. 362/12 Page 10 of 24 some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society"
43. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
44. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse MACT No. 182/12/11 AND MACT No. 362/12 Page 11 of 24 inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
45. Therefore, this issue is decided in favour of claimant and against the respondents.
ISSUE NO. 2:
46. In the case of Raj Kumar v. Ajay Kumar & Anr., MANU/SC/1018/2010, Civil Appeal No. 8981/2010 decided on 18.10.2010, following principles were laid down by the Hon'ble Supreme Court for determining compensation payable to road traffic accident victims: i. The compensation payable to the claimant who is a victim of road accident should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equatable manner.
ii. Compensation payable in injury cases is payable under two heads. They are pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
(ii) (a) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future MACT No. 182/12/11 AND MACT No. 362/12 Page 12 of 24 medical expenses. Nonpecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries
(v) loss of amenities (and /or loss of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).
iii. In routine personal injury cases compensation is awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation is granted under any of the heads (ii) (b), (iii) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.
47. MLC of the claimant was prepared at Ayushman Hospital, Dwarka, New Delhi. As per this, nature of injuries are grievous. Claimant was treated in Ayushman Hospital from 17.12.2010 till 18.12.2010. Thereafter, claimant was admitted in Artemis Hospital, Gurgaon, Haryana as a case of head injury and fracture D12 vertebra with paraplegia. He had undergone posterior spinal decompression and stabilization D10 to L2. He had remained admitted in hospital from 18.12.2010 to 03.01.2011. At the time of discharge, he was advised physiotherapy of limbs and chest four times for 2030 minutes. The claimant had also remained admitted in ESI Hospital, Gurgaon from 13.04.2011 till 20.05.2011 as a case of traumatic paraplegic with bed sores.
48. The impact of injuries suffered by the claimant was so huge that he has suffered 100% permanent disability in relation to his both lower limbs.
MACT No. 182/12/11 AND MACT No. 362/12 Page 13 of 2449. As per evidence of PW2, Dr. Jitender Pal Singh claimant would pass stool / urine involuntarily if he laughed, coughed or sneezed loudly. He also stated that for the rest of his life claimant will not be able to stand on his legs and will need catheter for passing urine.
50. Therefore, for Pain and Suffering, the claimant is awarded a compensation of Rs. 75,000/.
51. Claimant has spent Rs. 23,840/ on his treatment at Ayushman Hospital. This amount was not reimbursed in his favour from any quarter. However, cost of treatment of the claimant in Artemis Hospital was borne by ESIC. Still there are bills worth Rs. 84,317/ for purchase of medicines etc. which are on record and are not reimbursed to the claimant from any quarter. There are some other medical bills worth Rs. 3,728/ which are on record. Therefore, for Cost of Medicines / Cost of Treatment, the claimant is awarded a compensation of Rs. 1,11,885/.
52. Claimant has examined one Shri Rajender Singh as PW7. He is registered owner of a Taxi bearing Registration No. DL1T6894. This witness has stated that he had provided services of his Taxi for taking the claimant to different hospitals on 4050 occasions. He has stated that he was charging Rs. 600/ for taking the claimant to the hospital in Gurgaon and Rs. 400/ for taking the claimant to the hospital in Najafgarh.
53. In crossexamination, he stated that since claimant is a covillager he had not given any bills to the claimant. He also stated that he was not charging per kilometer basis as he had to wait for three to four hours in the hospital for the claimant.
MACT No. 182/12/11 AND MACT No. 362/12 Page 14 of 2454. This witness has not stated specifically conveyance charges taken by him from the claimant for taking the claimant on different occasions. He has stated in a general manner that he used to charge Rs. 400/ to Rs. 600/ per visit and he has taken the claimant to the hospital on 4050 occasions.
55. Therefore, claimant is awarded a compensation of Rs. 22,500/ for Conveyance Charges.
56. Considering the fact that the claimant has suffered grievous injuries and had to be hospitalised on several occasions for the treatment, a sum of Rs. 10,000/ is awarded for Special Diet.
57. Next question is effect of permanent disability which is 100% in relation to both lower limbs on loss of earnings by the claimant.
58. It is already noted that as per opinion of the Medical Board of DDU Hospital, the claimant has suffered 100% permanent disability in relation to his both lower limbs. PW2 who was one of the members of the Board has stated that claimant is a case of traumatic paraplagic (paralysis) with Bowel/bladder involvement. He has stated that claimant will need external aid like catheter every four to six hours to empty the bladder. He has stated that if claimant laughs loudly or coughs or sneezes loudly, he can pass stool and urine involuntarily. He has stated that claimant will not be able to stand up due to paralysis of both lower limbs.
59. As per evidence of PW5 Sh. Sudhir Kumar from Orient Craft Ltd., the claimant was working as a Helper. Claimant in his cross examination had disclosed that he was doing field work MACT No. 182/12/11 AND MACT No. 362/12 Page 15 of 24 and his timings started from 9.30 a.m. and continued till late hours.
60. In the case of Gulam Nabi Bhat v. Md. Arman Ali & Ors., MAC APP. No. 335/09 dated 07.08.12, the Hon'ble High Court of Delhi had treated loss of earning capacity as 100% when the claimant was declared 100% permanently disabled in relation to both lower limbs. The said claimant was dealing in sale of fruits being a fruit merchant from J & K to Subzi Mandi, Azadpur. Considering his nature of job, the Hon'ble High Court of Delhi had held that a paraplagic person whose both lower limbs cannot work at all can hardly give effective instructions to carry out the business as a whole sale merchant. Therefore, loss of earning capacity of the claimant was treated as 100%.
61. In this case also, considering that claimant has suffered 100% permanent disability in both lower limbs, his loss of earning capacity will be 100%.
62. Salary of the claimant in the month of November, 2010 was Rs. 5,016/ per month. In the case of Gulam Nabi Bhat (supra), the Hon'ble High Court of Delhi relying on a judgment of Hon'ble Supreme Court of India in the case of Santosh Devi v. National Insurance Co. Ltd. & Ors. 2012 (4) Scale 559 had further granted compensation to an extent of 30% for loss of future prospects.
63. The directions in the case of Santosh Devi (supra), were further clarified by the Hon'ble Supreme Court of India in the case of Rajesh v. Rajbir Singh & Ors., 2013 (6) Scale 563 where it was held that they have stated loss of future prospects should be 50% in case age of a victim was less then 50 years.
MACT No. 182/12/11 AND MACT No. 362/12 Page 16 of 2464. In this case also, the age of victim was less then 50 years. Therefore, 50% compensation for loss of future prospects is to be taken into consideration for awarding compensation to the claimant.
65. Thus calculated, financial loss for the claimant shall be assessed as Rs. 7,524/ per month i.e. Rs. 5,016/ + Rs. 2,508/ = Rs. 7,524/.
66. As per Ex. PW4/2, driving license of the claimant, his date of birth is 26.01.1985. The accident had taken place on 17.12.10. Claimant was 25 years and 10 months of age at the time of accident.
67. Relying on Sarla Verma v. DTC, 2009 (6) SCALE 129 and Iffco Tokio General Insurance Co. Ltd. v. Vinod, MAC No. 234/12 dated 31.05.12, the multiplier applicable will be of 17.
68. Therefore, total Loss of Wages for the claimant will be Rs. 7,524/ x 12 x 17 = Rs. 15,34,896/.
69. Considering the physical condition of the claimant, he will be always in need of help of an attendant. In the case of Gulam Nabi Bhat (supra), the date of accident was 16.10.06 and the Hon'ble High Court had granted compensation for attendant charges @ Rs. 2000/ per month.
70. As noted above, in this case the date of accident is 17.12.10. In October, 2006 minimum wages of an unskilled workman were Rs. 3,312/ which had gone up to Rs. 5,278/ per month in the year 2010.
71. Therefore, for Attendant's Charges, claimant is granted a compensation @ Rs. 3000/ per month i.e. Rs. 3,000/ x 12 MACT No. 182/12/11 AND MACT No. 362/12 Page 17 of 24 x 17 = Rs. 6,12,000/.
72. In the case of Gulam Nabi Bhat (supra), the Hon'ble High Court had granted a compensation of Rs. 25,000/ towards loss of marriage prospects and loss of amenities. This claimant is also awarded same compensation of Rs. 25,000/ towards Loss of Amenities.
73. Additionally, claimant has proved by the evidence of PW8 that he will need a sum of Rs. 3,50,000/ for future treatment. As per Ex. PW8/1, claimant needs plastic surgery for flap and stem cell implant as he is suffering from non healing large bed sores. This estimate was proved by PW8, Dr. Deepak.
74. PW8 had clarified that stem cell implant is for spinal cord injury. Stem cell when taken from bone marrow can grow into any kind of cell in the body and in this case it will grow as nerve cell so that the continuity of the spinal cord may be restored.
75. Therefore, claimant is awarded Rs. 3,50,000/ towards Future Treatment.
76. Hence, total compensation payable to the claimant would be Rs. 27,41,281/ which shall be payable with interest @ 7.5% per annum from the date of filing of this petition, which is 03.06.2011, till its realization.
77. Next question is which of the respondents is liable to pay this compensation to the claimant?
78. As per D.A. Report, Investigating Officer has reported that the driving license is fake and that is why FIR is registered under Section 279/338/465/471 of IPC. This report of Investigating Officer has presumptive value unless proved to the MACT No. 182/12/11 AND MACT No. 362/12 Page 18 of 24 contrary.
79. Moreover, insurance company has examined its Administrative Officer Sh. V.D. Talwar who relying on report of Investigating Officer has stated that since driving license was fake, this is a breach of terms and conditions of policy and therefore it was prayed that insurance company be exonerated or given recovery rights against the owner of the vehicle.
80. On the other hand, husband of the owner of the offending vehicle Sh. Jai Pal Singh Yadav had entered in the witness box and had stated that his wife Smt. Sumitra Yadav is the Proprietor of M/s. Sumitra Carriers and he is attorney of his wife in relation to vehicle in question. He had deposed that he himself had engaged Sh. Dalip Singh, Respondent No. 1 as the driver of the offending vehicle. He had seen the driving license of the driver and had also tested driving skills of the driver before engaging him as a driver for the offending vehicle. He had also deposed that the driver had shown him a driving license issued by the Licensing Authority, Mathura which appeared to be a genuine license.
81. In cross examination by counsel for insurance company, he denied suggestions that neither he had tested driving skills of the driver nor had seen license which later on turned out to be fake.
82. In these circumstances, the question is whether insurance company has proved that the insured/owner of the vehicle has committed deliberate, willful and conscious breach of terms and conditions of policy or not?
83. In the case of Lal Chand v. Oriental Insurance Co.
MACT No. 182/12/11 AND MACT No. 362/12 Page 19 of 24Ltd. III (2006) ACC 731 (SC) the Hon'ble Supreme Court of India has held as under: "8. We have perused the pleadings and the orders passed by the Tribunal and also of the High Court and the annexures filed along with the appeal. This Court in the case of United India Insurance Co. Ltd. v. Lehru & Ors., reported in I (2003) ACC 611 (SC) = II (2003) SLT 516 = 2003 (3) SCC 338, in paragraph 20 has observed that where the owner has satisfied himself that the driver has a license and is driving competently there would be no breach of Section 149 (2) (a) (ii). He will, therefore, have to check whether the driver has a driving license and if the driver produces a driving license, which on the face of it looks genuine, the owner is not expected to find out whether the license has in fact been issued by a Competent Authority or not. The owner would then take test of the driver, and if he finds that the driver is competent to drive the vehicle, he will hire the driver.
9. In the instant case, the owner has not only seen and examined the driving license produced by the driver but also took the test of the driving of the driver and found that the driver was competent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. Thus, the owner has satisfied himself that the driver has a license and is driving competently, there would be no breach of Section 149(2) (a) (ii) and the insurance company would not then be absolved of its liability.
10. Another decision rendered by a three judges Bench of this Court in the case of National Insurance Co. Ltd. v. Swaran Singh & Ors., MACT No. 182/12/11 AND MACT No. 362/12 Page 20 of 24 reported in I (2004) SLT 345=I (2004) ACC 1 (SC) = 2004 (3) SCC 297, can also be usefully referred to in the present context. This Court in para 110 of this judgment gave the summary of their findings to the various issues as raised in those petitions. We are concerned only with subpara
(iii) of paragraph 110. The said subpara (iii) reads thus:
(iii) The breach of policy condition e.g. Disqualification o the driver or invalid driving license of the driver, as contained in SubSection (1) (a) (ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
11. As observed in the above paragraph, the insurer, namely the Insurance Company, has to prove that the insured, namely the owner of the vehicle, was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant point of time.
12. We respectfully agree and following the MACT No. 182/12/11 AND MACT No. 362/12 Page 21 of 24 above ruling, we allow the appeal filed by the owner of the vehicle and absolve him from any liability as ordered by the High Court. It is now brought to our notice that the entire compensation has already been deposited and the same has been withdrawn by the claimants. No other point has been urged, by both sides. We, therefore, allow the appeal and order no costs."
84. In almost similar circumstances, the Hon'ble High Court of Delhi in the case of The Oriental Insurance Co. Ltd. v. Sudhama Prasad & Ors., MAC APP. No. 50/05 dated 02.05.12, relying on the judgments of the Hon'ble Supreme Court in the case of Swaran Singh (supra) and Lehru (supra), order passed by Claims Tribunal refusing recovery rights was upheld.
85. Therefore, though the driving license of Respondent No. 1 was fake, still owner cannot be saddled with the liability to pay the compensation because driving skills of Respondent No. 1 were tested and his driving license was also seen which had appeared to be a genuine driving license to the owner. Therefore, owner has not committed deliberate, conscious and willful breach of the terms and conditions of the policy.
86. Resultantly, compensation would still be payable by the insurance company which be deposited within 30 days from today under intimation to claimant as well as his counsel by registered post. In case, even after passing of 90 days, insurance company fails to deposit this compensation, it shall be recovered by attaching its bank account with a cost of Rs. 5,000/ as per directions of the Hon'ble High Court of Delhi in the case of New MACT No. 182/12/11 AND MACT No. 362/12 Page 22 of 24 India Assurance Co. Ltd. v. Kashmere Lal & Ors., 2007 ACJ 688.
87. Nazir of this court will also send intimation of deposit of compensation to the claimant as well as to his counsel.
88. Ahlmad will put up a copy of this order with report from Nazir regarding deposit of compensation again on 09.09.2013.
89. Financial needs of the claimant ascertained.
90. Considering the fact that claimant has already spent Rs. 1,11,885/ on purchase of medicines, Rs. 10,000/ for special diet, Rs. 22,500/ for conveyance charges and Rs. 3,50,000/ for future treatment totalling Rs. 4,94,385/ shall be released in his favour forthwith.
91. However, compensation of Rs. 75,000/ for pain and suffering, Rs. 25,000/ for loss of amenities in life, Rs. 15,34,896/ for loss of wages and Rs. 6,12,000/ for attendant's charges totalling to Rs. 22,46,896/ shall be kept in 17 FDRs of equal amount for a period from 1 to 17 years in State Bank of India, Dwarka Courts, New Delhi in the name of claimant Sh. Vikram Singh.
92. Compensation will be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi. The cheque will be in the name of SBI A/c. Vikram Singh. A sum of Rs. 4,94,385/ with proportionate interest shall be released in favour of claimant straight away and remaining amount of Rs. 22,46,896/ shall be kept in 17 FDRs of equal amount for a period of 1 to 17 years. Monthly interest on these FDRs shall also be released in Saving Bank Account of the claimant regularly. No cheque book will be given to the claimant. No loan or advance will be given MACT No. 182/12/11 AND MACT No. 362/12 Page 23 of 24 against these FDRs. The FDRs shall not be prematurely released without directions of this Tribunal. Insurance company will deposit compensation with the bank under intimation to this Tribunal and the bank will send copy of FDRs for the records of this Tribunal.
93. In MACT No. 362/12, this very claimant has prayed for compensation for damage to his motorcycle which he was driving at the time of accident. In this case, claimant has relied on invoice of Rs. 36,000/ showing purchase of motorcycle in his name but there is no bill for the repair of this motorcycle.
94. However, perusal of Mechanical Inspection Report of the motorcycle shows that there is a substantive damage to the vehicle as petrol tank, handle, mud guard, indicators, leg guards on both sides, front brake lever, right side foot rest, engine and left side foot rest are damaged and front tyre is bursted.
95. Applying some guess work, claimant is awarded a compensation of Rs. 18,000/ for the Repair of the Motorcycle. This compensation shall be payable with interest @ 7.5% per annum from the date of filing of this petition, which is 24.08.2012, till its realization.
96. Copy of this order be given to all the parties.
97. A copy of this order be also sent to State Bank of India, Dwarka Courts Branch, New Delhi.
98. File be consigned to the Record Room.
Announced in the open Court On the 7th Day of June, 2013.
(ARUN BHARDWAJ) PRESIDING OFFICER MOTOR ACCIDENTS CLAIMS TRIBUNALII DWARKA COURTS: NEW DELHI MACT No. 182/12/11 AND MACT No. 362/12 Page 24 of 24