Delhi District Court
Sunil Kumar S/O Sh.Mahender Singh vs Sh.Narain Singh (Driver) on 15 June, 2007
Suit No.248 of 2005
IN THE COURT OF SH.R P PANDEY: PRESIDING OFFICER
MOTOR ACCIDENT CLAIMS TRIBUNAL
TIS HAZARI COURTS:DELHI
SUIT No.:248/05
SUNIL KUMAR S/O SH.MAHENDER SINGH
H.No.-2031, VPO-ALIPUR, DELHI
... PETITIONER/CLAIMANT
VERSUS
1. SH.NARAIN SINGH (DRIVER)
S/O SH.PRABHU DAYAL
VPO-JAKHOLI
DISTT.-SONEPAT
HARYANA
2. M/S SH.BALAJI AGRO INDUSTRIES (OWNER)
38/39, KM STONE, GT ROAD RAI
DISTT.-SONEPAT, HARYANA
THROUGH ITS PARTNER
SH.SATISH PAHWA
S/O SH.RAM PAHWA
ALSO AT: D-842, NEW FRIENDS COLONY
2nd FLOOR, NEW DELHI-110065
3. THE NEW INDIA ASSURANCE COMPANY LTD. (INSURER)
203, LMT ATLAS ROAD
SONEPAT, HARYANA
... RESPONDENTS
DATE OF INSTITUTION OF PETITION : 07.12.05 DATE ON WHICH RESERVED FOR ORDER : 31.05.07 DATE OF ANNOUNCEMENT OF AWARD : 15.06.07 Page No.1 of 14 Suit No.248 of 2005 AWARD
1. This is a petition under section 140 & 166 of the Motor Vehicle Act, 1988 (for short referred to as M.V.Act) filed by petitioner, claiming compensation from the respondents for the injuries suffered by him in road side accident.
2. The petitioner, aged about 44 years, working as Gardener in Delhi Development Authority (in short DDA) has averred that on 30.9.01 at about 8.45 p.m. while he was coming to his house on foot and reached near Rice Godown, Khushi Ram Bihari Lal at Lower GTK Road, Alipur, a truck bearing registration no.HR-69-0288 (for short offending vehicle) came from his back side driven in rash and negligent manner at a high speed by respondent no.1 and thus hit the petitioner, due to which he fell down on the road and sustained grievous injuries and he was removed to BJRM hospital where his MLC was prepared and his injuries were opined as grievous in nature and thereafter he was referred to LNJP hospital where he remained admitted and was treated for the injuries. An FIR No.400/01 was registered with PS:Alipur in respect of the accident u/s 279/337 IPC. The petitioner has thus claimed a compensation of Rs.3 lacs from the respondents.
Page No.2 of 14 Suit No.248 of 2005
3. The respondent nos.1 & 2, who are respectively the driver and the owner of the offending vehicle have filed common written statement denying therein the averments made in the petition. They have however alleged that the respondent no.1 was driving his vehicle with utmost caution and the petitioner himself was negligent as he was drunk at the time of accident. It has been further averred by them that the petitioner was moving on the road in a drunken state and was thrown off by a bull, who had hit him, due to which he fell down on the road, on which the respondent no.1 was driving his vehicle.
4. The respondent no.3, who is insurer of the offending vehicle has filed written statement denying the claim of the petitioner by taking various pleas as are taken by the insurance companies in such matters. It has however admitted that the vehicle bearing no.HR-69-0288 was insured with it, vide policy No.353901/31/01/01/00008799 valid from 4.7.01 to 3.7.02, in the name of respondent no.2.
5. On the basis of pleadings of the parties, the following issues were framed by the tribunal on 7.8.06:-
1.Whether the petitioner received injuries in a road accident on 30.9.01 due to rash and negligent driving of Page No.3 of 14 Suit No.248 of 2005 vehicle No..HR-69-0288 by Respondent no.-1-Driver ?
2.Whether the petitioner is entitled for any compensation, and if so, to what amount and from whom?
3.Relief.
6. To prove the claim, the petitioner examined himself as PW-1 and closed PE. The respondent no.2 got examined R2W1 Sh.Narain Singh (driver of the offending vehicle) and R2W2 Sh.Wazid Hussain, Manager of respondent no.2. The respondent no.3 got examined Sh.Mahavir Singh, Assistant, New India Assurance Co. Ltd. and closed RE.
7. I have heard ld.counsels for the parties and carefully perused the pleadings and evidence brought on record by them and based on the same, my issuewise findings are as under:-
ISSUE NO.1 Whether the petitioner received injuries in a road accident on 30.9.01 due to rash and negligent driving of vehicle No..HR-69-0288 by Respondent no.-1- Driver?
8. To prove the issue, petitioner himself stepped into witness box as PW.1 and led his evidence by way of affidavit which is put as Ex.PW.1/A wherein he has deposed the same facts which he had Page No.4 of 14 Suit No.248 of 2005 averred in the petition.
9. Besides, he has exhibited copy of his Election I card as Ex.PW-1/A. Certified copies of FIR; DD entry No.24-A dated 20.9.01; site plan of the place of occurrence of accident; verified report of DD entry; mechanical inspection report of truck no.HR-69-0288; superdarinama of the said truck; driving license of respondent no.1; charge sheet prepared and filed by the police in FIR Case No.400/01 registered with PS:Alipur under section 279/337 IPC; MLC of the petitioner as prepared by the doctors of BJRM Hospital; discharge slip of Lok Nayak Hospital showing the admission of the petitioner in the said hospital from 1.10.01 to 30.10.01; leave certificate of the petitioner from the office of DDA; 2nd discharge certificate of the petitioner from Lok Nayak Hospital showing his admission in the said hospital from 24.11.01 to 14.12.01; OPD card of Lok Nayak Hospital; OPD card of Maharishi Balmiki hospital; OPD card of Satyawadi Raja Harish Chand Hospital (2) are put as Ex.PW-1/2 to 17. 3 medical bills of the petitioner are collectively put as Ex.PW-1/18. Copy of his I card issued by DDA is put as Ex.PW-1/19. Salary certificate in original has been proved as Ex.PW-1/20.
10. During his cross-examination, he denied to a suggestion that he was in drunken state at the time of accident. As he had Page No.5 of 14 Suit No.248 of 2005 denied a suggestion regarding drunkenness, doctor's report on MLC, put as Ex.P-10 was confronted to him, wherein at point-A, it has been observed by the attending doctor that the patient allegedly struck from side by speeding vehicle when patient was walking down on road in a drunken state. The condition of the petitioner was also stated as "under influence of alcohol."
11. Thus, the respondent nos.1 & 2 have proved that the petitioner himself was walking under drunken state at the time of accident which must had contributed to a great extent to the cause of accident. Keeping in view the entire facts & circumstances of the case, I hold that this is a case of contributory negligence and the contribution of the petitioner and respondent no.1 is apportioned on 50:50 basis. The issue no.1 is accordingly answered. ISSUE NO.2:
Whether the petitioner is entitled for any compensation and if so, to what amount and from whom?
12. The petitioner has stated in his petition that he is aged about 44 years and was earning Rs.9,000/- p.m. while working as gardener in Horticulture Department of DDA. He also stated that he was earning Rs.5,000/- p.m. by rearing the buffallows and selling Page No.6 of 14 Suit No.248 of 2005 their milk, but he has not brought any documentary evidence to show that he was also having side business at the time of accident. He has however proved his salary certificate issued by DDA put as Ex.PW-1/20 showing his salary for the month of October, 2005, as under:-
B.Pay D.P. D.A. C.C.A. H.R.A. Cy.Allow T.A. W.A. M.A. Total 3605 1803 1136 210 1622 45 100 30 230 8771
13. It is pertinent to note that the accident had occurred on 30.9.01, whereas the petitioner has proved the salary for the month of October, 2005. The relevant period was the last quarter of year 2001. Even in October, 2005, his encashable components of pay were, as under:-
Basic Pay DP DA CCA 3605 1803 1136 210
14. In October, 2001, DP was not there and thus the loss of pay during the month of October, 2001 would have been BP:Rs.3605; DA:Rs.1136 and Rs.CCA:210, total amounting to Rs.4,951/- or say Rs.5,000/- p.m.
15. The petitioner has also proved a certificate issued from his Page No.7 of 14 Suit No.248 of 2005 employer/DDA put as Ex.PW-1/12 showing that he was on medical leave from 1.10.01 to 15.1.02 i.e. 107 days. The petitioner has not proved that he has suffered loss of pay during the period in which he was on leave on account of accident. However, it is common knowledge that leave of the Government employee is encashable at the time of his superannuation or even otherwise he can avail his leaves as per his own requirements. Therefore, he should be compensated for the leaves which he was compelled to avail on account of injuries sustained in the accident. The petitioner remained on leave for a period of about 3.1/2 months and, therefore, he is awarded a sum of Rs.17,500/- on account of loss of pay.
16. The petitioner has proved three medical bills put as Ex.PW- 1/18 (colly) for Rs.104; Rs.128/- and Rs.112/-, total amounting to Rs.344/-. He has not proved any other medical bills, therefore, it is presumed that he must have taken reimbursement of other medical bills from his employer/DDA. The same is accordingly allowed.
17. The petitioner was taken to BJRM Hospital after the accident and in the MLC, Ex.PW-1/10, it is shown that he was referred to LNJP Hospital for further management. Ex.PW-1/11 is the copy of discharge slip of LNJP Hospital showing that he remained admitted in Lok Nayak Hospital from 1.10.01 to 31.10.01. As per Page No.8 of 14 Suit No.248 of 2005 Ex.PW-1/13, he was again admitted in Lok Nayak Hospital on 24.11.01 and discharged on 12.12.01 for treatment of injuries which he had sustained in road side accident. Thus, the petitioner had remained under treatment for a sufficient long time.
18. Keeping in view the nature of injuries suffered by the petitioner, it can be understood that he must have undergone great pain & sufferings due to injuries sustained by him in road side accident. He is accordingly allowed a compensation of Rs.25,000/- towards pain & sufferings. Petitioner is further awarded a sum of Rs.11,000/- as general damages for covering his expenses on special diet; conveyance and other ancillary expenses, for which he could not produce any bills.
19. Ld.counsel for the respondents had argued that the petitioner is not entitled to any compensation amount because he was wholly responsible for the cause of accident as he was walking on the road under the influence of liquor. While deciding the issue no.1, it has been held that the contribution of petitioner towards the cause of action was 50%. Accordingly, petitioner is entitled to the 50% of the compensation amount which comes to Rs.26,922/- (Rs.53844/2).
Page No.9 of 14 Suit No.248 of 2005
20. Now the question is from whom the petitioner is entitled to recover the awarded amount of compensation. The respondent no.3 got examined R3W1 Sh.Mahavir Singh, Assistant, New India Assurance Company Ltd, who proved the notices issued to the respondent nos.1 & 2 by the counsel for the insurance company as also the report of the investigator, who investigated about the validity of DL No.90685/99 of the respondent no.1 and stated that as per the report the said driving license of respondent no.1 was neither issued nor renewed by the Licensing Authority, Sonepat. A copy of driving license of respondent no.1/Narain Singh is put as Ex.R3W1/H and the verification report of DTO/Sonepat is put as Ex.R3W1/I stating that no such driving license was issued or renewed by the said authority. Thus, respondent no.3 has established to the satisfaction of the Tribunal that respondent no.1 was not holding a valid and effective driving license to drive the offending vehicle at the time of accident. The license produced by him is a fake driving license.
21. The respondent no.1 was examined by respondent no.2 as R2W1, who deposed that he was having a valid driving license at the time of accident which was issued by the Transport Authority, Sonepat and the copy of the same is put as Ex.R2W1/B=PW-1/1. During his cross-examination by the counsel for respondent no.3, he stated that he got prepared his driving license from Sonepat and Page No.10 of 14 Suit No.248 of 2005 when he was shown the report of the Sonepat put as Ex.R3W1/I, he has said that he was never told about the same by the Police Authorities, although he was challaned earlier also.
22. The respondent no.2, who is owner/insured of the offending vehicle then examined Sh.Wahid Hussain, its Manager, whose affidavit of evidence is put as Ex.R2W2/A, wherein he has deposed that the respondent no.2 had engaged the respondent no.1 in its serves only after checking his driving license that he was having a valid driving license as on the date of alleged accident i.e. 30.9.01 which was issued by the Transport Authority, Sonepat and test drive of respondent no.1 was also taken.
23. During cross-examination by the counsel for the petitioner, he stated that he is working in the sister concern of respondent no.2 for the last 10 years and that he had himself not taken the test drive of respondent no.1. During the course of cross-examination by the counsel for respondent no.3, he said that he did not himself verify the records pertaining to the driving license of respondent no.1 and that he had only seen the driving license. He said that he was informed that the driving license of respondent no.1 is fake only a few days ago.
Page No.11 of 14 Suit No.248 of 2005
24. Ld.counsel for respondent no.3 has submitted that since the driving license of respondent no.1 was fake, therefore, the insurance company is not liable to make payment of compensation amount to the petitioner and even if it is held liable to pay compensation to the petitioner, it should be granted recovery right against the insured/owner of the offending vehicle i.e. respondent no.2.
25. However, ld.counsel for respondent nos.1 & 2 had argued at length by citing the various judgments of Hon'ble Supreme Court and High Courts that the owner of the vehicle i.e. respondent no.2 is not liable to make payment of compensation and also not liable under recovery right. He has relied upon judgments cited as "National Insurance Co. Ltd. Vs. Swaran Singh & Ors., JT 2004 (1) SC 109; Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, 1987 ACJ 411; Narcinva V Kamat and another Vs. Alfredo Antonio Doe Martins & others, 1985 ACJ 397 (SC); G Nagendra Devi and Others Vs. Y.Mosses and others, 2003 ACJ 221 (Madras High Court); Sohan Lal Passi Vs. P Sesh Reddy and Othes, 1996 ACJ 1044 (SC) and United India Insurance Co. Ltd. Vs. Lehru and Others, II (2003) SLT 516 (SC)", wherein it was held that if it ultimately turns out that license was fake, Insurance Company would continue to remain liable unless they prove Page No.12 of 14 Suit No.248 of 2005 owner/insured was aware that license was fake and still permitted that person to drive his insured vehicle. In this case, the respondent no.3 has failed to prove that the driving license of respondent no.1 was fake to the knowledge of the respondent no.2 and therefore, insurance company cannot be escape the liability towards the petitioner . It can also not be given recovery right against respondent nos. 1 & 2 for the same reasons.
26. In view of the above findings, the respondent Nos. 1 & 2 being the driver and the owner of the offending vehicle are held jointly and severally liable to pay compensation to the petitioners and respondent no.3 being insurer of the offending vehicle is held vicariously liable to pay compensation amount to the petitioner. The issue no.2 is accordingly decided in favour of the petitioner and against the respondents.
RELIEF:
27. In view of my findings on issued nos.1 & 2, the petitioner is held entitled to a net compensation of Rs.26,922/- (Rupees Twenty Six Thousand Nine Hundred Twenty Two Only) on account of injuries suffered by him in the said accident. The petitioner is also held entitled to an interest @ 8% p.a. on the said amount of compensation from the date of filing of the petition i.e. 7.12.05 till realization. The Page No.13 of 14 Suit No.248 of 2005 entire amount be released to the petitioner.
28. The respondent no.3 being insurer of the offending vehicle is directed to deposit the cheque in favour of the petitioner in terms of this award within 30 days in this Tribunal. A copy of award may be collected by the counsel for the respondent no.3 for compliance. File be consigned to Record Room.
Announced in the open court (R P PANDEY)
on 15.06.2007 JUDGE:MACT:DELHI
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