Delhi District Court
Sh. Krishan Lal Batra vs Sh. Ashwani Puri (Driver) on 11 July, 2012
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
TRIBUNALII, DWARKA COURTS, NEW DELHI
MACT NO. 148/11/06
IN THE MATTER OF :
1. Sh. Krishan Lal Batra
S/o Sh. Ram Dass Batra
Flat No. 24, Plot No. 09
IES Apartments, Sector4
Dwarka, New Delhi.
......Petitioner
Versus
1. Sh. Ashwani Puri (Driver)
S/o Sh. Inder Sain Puri
R/o JG3/251C, Vikas Puri
New Delhi.
2. Sh. Inder Sain Puri (Owner)
996, Sikander Pur
Gurgaon (Haryana).
3. National Insurance Co. Ltd. (Insurer)
B/o B18, Ist Floor Community Centre
Janak Puri, New Delhi110058.
.........Respondents
MACT NO. 152/11/06 Krishan Lal Batra v. Ashwani Puri & Ors. Page 1 of 19 IN THE MATTER OF :
1. Sh. Anuj Batra S/o Sh. Krishan Lal Batra Flat No. 24, Plot No. 09 IES Apartments, Sector4 Dwarka, New Delhi.
......Petitioner Versus
1. Sh. Ashwani Puri (Driver) S/o Sh. Inder Sain Puri R/o JG3/251C, Vikas Puri New Delhi.
2. Sh. Inder Sain Puri (Owner) 996, Sikander Pur Gurgaon (Haryana).
3. National Insurance Co. Ltd. (Insurer) B/o B18, Ist Floor Community Centre Janak Puri, New Delhi110058.
.........Respondents
FILED ON : 13.09.2006
RESERVED ON : 03.07.2012
DECIDED ON : 11.07.2012
: J U D G M E N T :
1. These are two claim petitions filed under Section 166 Krishan Lal Batra v. Ashwani Puri & Ors. Page 2 of 19 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Since both the claim petitions have arisen out of a common accident, the two claim petitions were consolidated and consolidated issues were framed. It was decided that the case titled as Krishan Lal Batra v. Ashwani Puri & Ors. which is MACT No. 148/11/06 shall be treated as the leading case and on the basis of evidence recorded in that case both the claim petitions will be decided.
3. Respondent no. 1 is the driver, Respondent no. 2 is the owner and Respondent no. 3 is the insurer of the offending vehicle.
4. It is stated in the claim petition filed by Sh. Krishan Lal Batra that on 18.04.2006, at about 5.30 a.m., the injured/petitioner alongwith his son was returning to I.E.S. Apartments, Dwarka, Sector4 after attending a marriage at Pragati Maidan, New Delhi in car bearing registration no. DL3CG8337.
5. It is stated that the said car was being driven by Sh. Anuj Batra who is claimant in another claim petition referred above.
6. It is further stated that when the petitioner had reached Sector4 near their apartment, a Tata Sumo bearing registration no. DL1T6773, all of a sudden came from the wrong side at a high speed and hit the car of the petitioners from front side as a result of which three occupants in the car including this petitioner Sh. Krishan Lal Batra v. Ashwani Puri & Ors. Page 3 of 19 Krishan Lal Batra suffered grievous injuries.
7. It is stated that the petitioner and other injured persons were taken to Ayushman Hospital, Dwarka, New Delhi.
8. It is stated the accident had taken place due to sole negligence of respondent no. 1.
9. It is stated that petitioner lost his working capacity in the said accident and suffered mental and physical pain and agony.
10. Petitioner has stated that he was 62 years of age at the time of accident and he is a retired professor from IIT, Delhi. It is stated that monthly income of the petitioner at the time of accident was Rs. 9,965/ per month.
11. It is stated that the petitioner has spent a sum of Rs. 50,000/ on his treatment and his treatment is still going on.
12. In these circumstances, petitioner has claimed a compensation of Rs. 15 lacs with interest @ 18% p.a. from the respondents.
13. Notice of this claim petition was issued to all the respondents. Respondent no. 1 and 2 were proceeded exparte and claim petition was contested only by respondent no. 3/insurance company.
14. Respondent no. 3 has taken several preliminary objections which are that the petition is bad for misjoinder of Krishan Lal Batra v. Ashwani Puri & Ors. Page 4 of 19 necessary parties and is liable to be dismissed; insurance company had issued an insurance policy no. 361801/31/05/6300018799 for a period from 24.03.06 to 23.03.07 in the name of Mr. Inder Sen Puri in respect of a new Tata Sumo. It is stated that later on, on 02.05.06 on the request of insured, the insurance company had made an endorsement in the policy and inserted vehicle no. HR55DT5606 in the insurance policy. It is stated that offending vehicle no. DL1T6773 was not insured with the answering respondent under the impugned policy. It is further stated that the identity of the offending vehicle is not certain as in charge sheet and FIR alleged offending vehicle is mentioned as a DL1T6773, while as per the Mechanical Inspection Report, the offending vehicle was DL1T Q6773. Therefore, it is the case of insurance company that it is not a necessary party and be deleted from the array of the parties.
15. Another preliminary objection is raised that the driver, owner and insurer of car no. DL3CQ8337 are also necessary parties but in their absence claim petition is bad for nonjoinder of necessary parties.
16. It is also an objection raised by the insurance company that the driver of alleged offending vehicle was not holding any commercial license valid for the category of the alleged offending vehicle and for this reason insurance company is not liable to pay Krishan Lal Batra v. Ashwani Puri & Ors. Page 5 of 19 any compensation to the petitioner.
17. It is also stated that in case it is found that the insured has violated any terms and conditions of the insurance policy, in that event, insurance company will not be liable to pay any compensation.
18. Insurance company has also stated that in case it is found that the insured was himself negligent, in that event, insurance company will not be liable to pay any compensation.
19. It is also stated that the compensation claimed is excessive, exorbitant and without any basis.
20. On merits, it is reiterated that the alleged offending vehicle no. DL1T6773 was not insured with the answering respondent.
21. In claim petition filed by Sh. Anuj Batra, claimant in MACT No. 152/11/06, sequence of events leading to accident is same as stated in the case of Sh. Krishan Lal Batra. Additionally it is stated that the claimant was 29 years of age at the time of accident and was working as Team Leader (Software Solution) with I BILT Technology Ltd., a CMMI 5 Level Company and was drawing a salary of Rs. 33,889/ per month. It is further stated that petitioner has spent a sum of Rs. 50,000/ on his treatment and the treatment is still going on.
Krishan Lal Batra v. Ashwani Puri & Ors. Page 6 of 19
22. This petitioner has also claimed a compensation of Rs. 15 lacs with interest @ 18% p.a. from the respondents.
23. Respondent no. 1 and 2 were proceeded exparte and respondent no. 3 has filed a written statement stating similar facts and by taking similar objections as were already taken in the case of Krishan Lal Batra and are noted in detail above.
24. From the pleadings of parties, following consolidated issues were framed:
1) Whether Kishan Lal Batra and Anuj Batra, had sustained injuries on their person in an accident which took place on 18.04.06 due to negligent driving of vehicle bearing registration no. DL1T6773 being driven in a negligent manner by respondent no. 2, owned by respondent no. 1 and insured with respondent no. 3? OPP
2) In case, issue no. 1 is decided in favour of the petitioners, to what amount of compensation they are entitled to and from whom? OPP
3) Relief.
25. Sh. Krishan Lal Batra entered in the witness box as PW1 and stated almost similar facts as were already stated by him in his claim petition.
26. Passport of Sh. Krishan Lal Batra was proved as Ex. PW1/1, Pan Card as Ex. PW1/2, Employer Identity Card as Ex. PW1/3, Income Tax Return for the assessment year 200708 as Ex. Krishan Lal Batra v. Ashwani Puri & Ors. Page 7 of 19 PW1/4, Certificate of Employer i.e. IIT stating that out of a medical bill of Rs. 99,144/ submitted by Sh. A.L. Batra in the month of June, 2006 on account of his accident, he was reimbursed a sum of Rs. 48,298/ as Ex. PW1/5, discharge slip of Sir Ganga Ram Hospital as Ex. PW1/6 and medical bills (five in number) totaling Rs. 3807/ as Ex. PW1/7.
27. In cross examination, petitioner stated that he is a retired person and was doing nothing at the time of accident. He stated candidly that he used to file income tax return on the basis of income of pension. He admitted that he is getting the pension regularly even after the accident. He denied a suggestion that he has not spent Rs. 25,000/ on Special Diet, Rs. 15,000/ on conveyance and Rs. 70,000/ on medical bills. He denied a suggestion that he had received entire medical expenses from his own department. He denied a suggestion that medical bills placed on record by him are forged and fabricated.
28. Sh. Anuj Batra entered in the witness box as PW2 and stated that it was the day of his own marriage when the accident had taken place. He proved his passport as Ex. PW2/1, Pan Card as Ex. PW2/2, ITR for the year 200708 as Ex. PW2/3, OPD Card as Ex. PW2/4 and medical bills as Ex. PW2/5.
29. As per the ITR of this petitioner, his gross total income Krishan Lal Batra v. Ashwani Puri & Ors. Page 8 of 19 for the assessment year 200708 was Rs. 5,54,899/. He has placed on record medical bills totaling Rs. 3953/.
30. In cross examination, PW2 stated that he has not placed on record any document to show his employment at a salary of Rs. 46,000/ per month and he has not placed on record any document to show that he was constrained to proceed on leave due to this accident. However, he stated that he had a valid driving license effective from 28.06.99 to 27.06.19 and denied a suggestion that he himself was responsible for the accident.
31. On behalf of insurance company two witnesses were examined. The first witness examined on behalf of insurance company as R3W1 was Sh. Naresh Chand, LDC, Delhi Transport Authority, Janakpuri, New Delhi. He deposed that the driving license of Sh. Ashwani Puri, respondent no. 1 was valid for LTV (Taxi) from 03.03.03 to 03.02.06 and thereafter it was renewed on 29.06.07 to 28.06.10. He stated that the license was valid for LMV Non Transport from 17.01.02 to 16.01.22. He stated that the driving license was not valid/renewed for category LTV (Taxi) on the date of accident i.e. 18.04.06. The driving license of respondent no. 1 was proved as Ex. R3W1/1.
32. Second witness examined on behalf of insurance company was Sh. Sham Singh Bisht, Assistant, National Insurance Krishan Lal Batra v. Ashwani Puri & Ors. Page 9 of 19 Company Ltd. He stated in his evidence by way of affidavit that the driver of the offending vehicle was not having any valid driving license and permit at the time of accident which was a breach of terms and conditions of the policy. Insurance policy was exhibited as Ex. R3W2/1. He stated that a notice under Order 12 Rule 8 of CPC was served upon driver and owner of offending vehicle where it was stated that an accident was allegedly caused on 18.04.06 by respondent no. 1 by driving vehicle no. DL1T6773 which resulted into injuries to Sh. Krishan Lal Batra and Sh. Anuj Batra who have filed claim petitions against insured, driver and National Insurance Co. Ltd. with whom above said vehicle was insured at the time of accident. Therefore, respondent no. 1 and 2 were called upon to produce original insurance policy, fitness, and original driving license of respondent no. 1 covering the category of the vehicle on the date of accident. Postal receipts as per which this notice was sent were proved as Ex. R3W2/3 and 4. Seizure memo of driving license was proved as Ex. R3W2/5 and report given by Motor Licensing Officer, Department of Transport, Govt. of NCT of Delhi dated 22.02.07 as per which respondent no. 1 was having driving license to drive motorcycle and LMV (NT) was proved as Ex. R3W2/6. Report submitted by Surveyor to respondent no. 3/insurance company was proved as Ex. R3W2/7. This license was Krishan Lal Batra v. Ashwani Puri & Ors. Page 10 of 19 valid till 16.01.22. It was stated that the driving license was not valid on 18.04.06 to drive any type of commercial vehicle. Letter addressed to Licensing Authority, Motor Vehicle Department, Gurgaon was proved as Ex. R3W2/8 and letter addressed to the insurance company by the insurer stating that the vehicle was given a permit on 27.04.06 i.e. after the date of accident was proved as Ex. R3W2/9.
33. Arguments were addressed by Sh. S.K. Verma, learned Counsel for petitioners and Sh. Ashutosh, learned Proxy Counsel for insurance company.
34. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1
35. Burden of proving this issue is on the petitioners.
36. For succeeding in a claim petition under Motor Vehicles Act, it is for the petitioners to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
37. This is sine qua non for getting the relief.
38. The petitioners have stated in the claim petition that the offending vehicle was being driven at a very fast speed and in a rash and negligent manner and hit against the car driven by Sh. Anuj Batra as a result of which both the petitioners suffered injuries. Krishan Lal Batra v. Ashwani Puri & Ors. Page 11 of 19
39. It is also stated that the offending vehicle had come from the wrong side.
40. The best person to deny these allegations was respondent no. 1, the driver of offending vehicle. However, he was proceeded exparte.
41. Petitioners have repeated similar averments in their evidence by way of affidavits.
42. The evidence of petitioners has gone unrebutted.
43. The driver of offending vehicle did not enter in the witness box to prove his innocence.
44. Police has registered FIR No. 341/06 under Section 279 and 337 of IPC on the complaint of petitioners against respondent no. 1.
45. It is settled law that the test for proving negligence of the driver of offending vehicle for succeeding in a claim petition under M.V. Act is of preponderance of probabilities and not beyond all reasonable doubts.
46. Applying the principles of res ipsa locquitor this issue is therefore decided in favour of petitioners and against respondents. ISSUE NO. 2:
47. The compensation payable to the claimant who is a victim of road accident should, to the extent possible, fully and Krishan Lal Batra v. Ashwani Puri & Ors. Page 12 of 19 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.
48. 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 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).
49. 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 Krishan Lal Batra v. Ashwani Puri & Ors. Page 13 of 19 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.
50. As per photocopy of MLC of Sh. Krishan Lal Batra, injuries suffered by him are grievous in nature. It is also noted that he has suffered fracture both bone, right leg and fracture tibia and fibula.
51. Discharge Summary of Sir Ganga Ram Hospital has noted diagnosis as Segmental fracture tibia with fracture fibula.
52. Sh. Krishan Lal Batra had remained admitted in the hospital from 18.04.06 to 23.04.06. The treatment given to the petitioner was intra medular interlock nailing right tibia.
53. Resultantly, for Pain and Suffering, compensation payable to this petitioner would be Rs. 40,000/.
54. As per Ex. PW1/5, IIT Delhi, the employer of petitioner has certified that as against a claim of Rs. 99,144/, petitioner was reimbursed a sum of Rs. 48,298/. This shows that a sum of Rs. 50,846/ were not reimbursed to the petitioner. Besides this, petitioner has also spent Rs. 3807/ on purchase of medicines etc. as per Ex. PW1/7. Therefore, petitioner is granted a compensation of Rs. 54,653/ for Cost of Treatment and Cost of Medicines. Krishan Lal Batra v. Ashwani Puri & Ors. Page 14 of 19
55. Petitioner has stated that he was not doing anything at the time of accident and was filing income tax returns on the basis of income of pension which he continued to get regularly even after the accident.
56. Therefore, there is no loss of earning/wages suffered by the petitioner due to this accident.
57. However, petitioner is granted a compensation of Rs. 7,500/ for Special Diet and Rs. 5000/ for Conveyance.
58. Therefore, total compensation payable to this petitioner would be Rs. 1,07,153/ which shall be payable with interest @ 9% p.a. from the date of filing of this claim petition which is 13.09.06 till its deposit.
59. For granting interest @ 9% p.a. reliance can be placed on the judgment of Hon'ble High Court of Delhi in Dhaneshwari & Anr. v. Tejeshwar Singh & Ors. MAC APP. 997/11 dated 19.03.12 where in para 72 and 73 the Hon'ble High Court has held as under:
72. In Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. (2011) 11 SCC 269, the interest granted by the National Commission @ 9% was upheld by the Supreme Court. In Sant Singh v. Sukhdev Singh (2011) 11 SCC 632, interest @ 9% per annum was awarded by the Hon'ble Supreme Court. In Raj Kumar v. Ajay Kumar and Anr.
2011 (1) SCC 343, the interest @ 9% p.a. awarded by the Claims Tribunal was approved. In Arvind Krishan Lal Batra v. Ashwani Puri & Ors. Page 15 of 19 Kr. Mishra v. New India Assurance Co. Ltd.
(2010) 10 SCC 254, interest @ 9% p.a. was awarded on the enhanced amount of compensation.
73. In these circumstances, I would also follow the Bank rate of interest and would award interest @ 9% p.a. on the enhanced amount.
60. So far as another petitioner Sh. Anuj Batra is concerned, he has suffered simple injuries as per MLC prepared at Ayushman Hospital. Photocopy of MLC is on record.
61. Therefore, for Pain and Suffering he is granted a compensation of Rs. 5000/.
62. He has submitted bills totaling Rs. 3953/ which are Ex. PW2/5.
63. Therefore, he is granted a compensation of Rs. 3953/ for Cost of Treatment and Cost of Medicines.
64. For Special Diet and Transport he is given a lump sum compensation of Rs. 5000/.
65. Total compensation payable to Sh. Anuj Batra would be Rs. 13,953/ which shall be payable with interest @ 9% p.a. from the date of filing of this claim petition which is 13.09.06 till its deposit in this Tribunal.
66. The next question is which of the respondents is liable Krishan Lal Batra v. Ashwani Puri & Ors. Page 16 of 19 to pay this compensation to the petitioners.
67. The vehicle was insured by respondent no. 3 is not in dispute because in the issues framed on 22.07.11 it is recorded that the vehicle in question was insured with respondent no. 3.
68. Even at the time of argument, no argument was raised by counsel for insurance company that the vehicle was not insured.
69. The discrepancy raised by insurance company initially in its written statement that offending vehicle is DL1T6773 but insurance is for HR55DT5606 is explained by a perusal of photocopy of temporary registration certificate given by Govt. of NCT of Delhi, Transport Department where the number given to the vehicle was DL1TEMPQ6773 and this temporary certificate of registration was valid from 31.03.06 to 30.04.06.
70. The date of accident is 18.04.06. After permanent registration, the offending vehicle was given registration no. HR55 DT5606 and endorsement in policy was inserted on 02.05.06 which is after the date of accident.
71. Therefore, vehicle no. DL1T6773 and HR55DT5606 are one and the same vehicle.
72. The non mentioning of 'Q' is a clerical omission which should not come in the way of granting relief of compensation to the road traffic accident victims.
Krishan Lal Batra v. Ashwani Puri & Ors. Page 17 of 19
73. Insurance company has raised a defence that the driver of offending vehicle was not having a valid and affective driving license to drive the category of vehicle in question.
74. As per temporary certificate of registration type of body of the vehicle is described as saloon. Permanent registration certificate is not available on record.
75. As per Ex. R3W2/1, which is the insurance policy, the certificate of insurance was given for passengers carrying commercial vehicle.
76. As per Ex. R3W1/1, respondent no.1 was having a driving license to drive LMV Commercial from 03.03.03 to 11.03.11 and Light Transport Vehicle (Taxi) from 03.03.03 to 02.03.06.
77. On the date of accident i.e. 18.04.06 respondent no. 1 was not having any driving license to drive LTV (Taxi). The license to drive LTV (Taxi) was renewed on 29.06.07 till 28.06.10.
78. Resultantly, insurance company has proved that when the insurance of the vehicle was for Passengers Carrying Commercial Vehicle, the driver was not having license of Light Transport Vehicle (Taxi) on the date of accident as the said license had lapsed on 02.03.06 and was renewed on 29.06.07.
79. For this reason, initially the compensation would be payable by insurance company to both the petitioners but insurance Krishan Lal Batra v. Ashwani Puri & Ors. Page 18 of 19 company will have right to recover the same from driver/owner by filing execution proceedings before this Tribunal in accordance with law.
80. Let compensation be deposited within 30 days from today under intimation to both the petitioners.
81. File be consigned to Record Room.
Announced in the Open Court.
On the 11th day of July, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
Krishan Lal Batra v. Ashwani Puri & Ors. Page 19 of 19