Delhi District Court
Kumari Rinki vs . Firoz Alam & Ors on 16 October, 2014
IN THE COURT OF SH. AJAY KUMAR JAIN:
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL: SOUTH
EAST DISTRICT/ SAKET COURTS: NEW DELHI
Suit No. 771/11
FIR No: 157/09
PS: Jaitpur
Unique ID no. 02406C0335882011
Kumari Rinki Vs. Firoz Alam & ors
Injury Case
Kumari Rinki D/o Sh. Rishal Singh
R/o H. No. 30/2 Sindhu Farm Road Meethapur, Badarpur, New Delhi
........................... Petitioner/Claimant
Versus
1. Firoz Alam S/o Sh. Waris Ali (driver)
R/o House No. 702/4, Block No. E, Ekta Vihar, Meethapur,
Badarpur, New Delhi110044
2. Sh. Waris Ali S/o Sh. Abdul Shakur (owner)
R/o House No. 702/4 Block No. E, Ekta Vihar, Meethapur,
Badarpur, New Delhi
3. Cholamandalam MS General Insurance Co. Ltd.
Office Address: Netaji Subhash Marg, Place Bhawan
D.G. Building, Jhandewalan Darya Ganj, New Delhi110034
...........................Respondents
Date of Institution : 24.09.2009 Date of reserving the judgment : 16.10.2014 Date of pronouncement : 16.10.2014 Judgment:
1. Present claim proceedings initiated on the basis accident information report Kumari Rinki Vs. Firoz Alam & ors suit no.771/11 (Pg 1 of 9) (AIR) filed by the police on 24.09.2009, subsequently a claim petition was also filed by the petitioner and the same was tagged with the present AIR vide order dated 24.10.2011.
2. Brief facts of the case are that on 25.08.2009 at around 7.30 am, minor injured Rinki was going towards her school at Meethapur, when reached near Ekta Vihar Masjid, offending Mahendra Vikram bearing no. DL 1LL 2459 driven by R1 in rash and negligent manner hit the minor petitioner due to which petitioner suffered injuries, then removed to AIIMS trauma centre.
3. An FIR No.157/2009 under Section 279/337 IPC, PSJaitpur was registered.
During investigation police recorded the statement of witnesses, prepared the site plan of the place of occurrence, collected MLC of the injured, seized offending vehicle, conducted its mechanical inspection, arrested respondent no. 1 driver. On completion of investigation found respondent no.1 driver accused of rash and negligent driving, hence chargesheeted him for the commission of offence u/s 279/338 IPC. During investigation police filed driver minor not having any driving license, hence added offence u/s 5/180 MV Act.
4. On 13.12.2011, Ld. Counsel for driver and owner submitted before the court that they are willing to settle the matter and at joint request the matter was referred to Lok Adalat but returned back unsettled.
5. During proceedings, written statement was filed by insurance company.
Insurance company in its WS railed the plea that driver in the case was minor Kumari Rinki Vs. Firoz Alam & ors suit no.771/11 (Pg 2 of 9) as having no license and last digit of the covernote is not readable therefore owner be directed to supply better particulars. Despite opportunity driver and owner had not filed any reply, therefore opportunity to file reply on behalf of the driver and owner closed vide order dated 05.07.2012.
6. During inquiry, following issues are framed: (1.) Whether the petitioner suffered injuries in an accident which took place on 25.08.2009 at about 7.30 am involving offending vehicle i.e Mahindra Vikram bearing no. DL 1LL 2459 due to rash and negligent driving of respondent no.1, owned by respondent no.2 and insured by respondent no. 3 (insurance company) ? OPP.
(2) Whether the petitioner is entitled for compensation? If so, to what amount and against which of the respondents?
(3) Relief.
7. Vide order dated 11.12.2012, interest of the petitioner was closed till the conclusion of PE. PE was closed on 04.06.2014, hence the petitioner is not entitled to interest from 11.12.2012 till 04.06.2014.
8. On 17.05.2013, Ld. Counsel for the insurance company submitted that copy of the covernote supplied to the insurance company do not contain the legible no. therefore requested that legible copy be supplied. IO/SI Dara Singh produced owner on 02.09.2013 and owner supplied the covernote to insurance company on 04.06.2014.
Kumari Rinki Vs. Firoz Alam & ors suit no.771/11 (Pg 3 of 9)
9. During evidence, Sh. Rishal father of the minor petitioner examined himself as PW1. Insurance company examined R3W1. No evidence led by driver and owner despite opportunity, hence opportunity to led RE on behalf of driver and owner was closed vide order dated 26.08.2014.
10. After hearing arguments and considering the material on record, my issue wise findings are as follows: Issue no. 1 (Negligence)
11. PW1 Rishal father of the minor petitioner in his affidavit of evidence (Ex.
PW1/A) stated that minor petitioner when going towards her school was hit by offending vehicle driven by respondent no.1 in rash and negligent manner due to which she fell down and suffered fracture in her femur shaft, though he is not the eye witness, his version is duly supported by police investigation. Police during investigation also found respondent no.1 accused of rash and negligent driving hence chargesheeted him for commission of offence u/s 279/338 IPC. No evidence to the contrary led by driver and owner.
12. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the Kumari Rinki Vs. Firoz Alam & ors suit no.771/11 (Pg 4 of 9) proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of Hon'ble High Court of Delhi in "National InsuranceCompany Limited Vs. Pushpa Rana" (2009 ACJ 287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
13. In view of the above discussion, petitioner able to prove that he suffered injuries due to rash and negligent driving of the R1. Accordingly the issue no. 1 is decided in favour of the petitioner and against the respondents. Issue no 2 (Compensation) Medical Expenses :
14. PW1 Rishal father of the minor injured in his affidavit of evidence (Ex.
PW1/A) that after accident minor injured was removed to AIIMS hospital. Thereafter she was treated at Deep Medical Centre private limited Faridabad, then Sparsh hospital and later on at Sarvodaya hospital. Discharge summary of Kumari Rinki Vs. Firoz Alam & ors suit no.771/11 (Pg 5 of 9) Deep medical centre (Ex. PW1/11) shows petitioner remained admitted in the said hospital from 02.09.2009 till 09.09.2009 and diagnosed to have suffered fracture of shaft of femur and her operation was conducted, thereafter petitioner remained under treatment with Sparsh hospital as well as Sarvodaya hospital. Petitioner for claiming medical expenses relied upon medical bills (Ex. PW1/1 then Ex.PW1/12 to Ex. PW1/37) for a total sum of Rs. 60,259/ Nothing material came in cross examination to dispute the validity of these bills or the injury suffered by petitioner. Hence a sum of Rs. 60,259/ is granted to the petitioner towards medical expenses.
Ld. counsel for the petitioner during argument also filed the summary of bills for a sum of Rs. 85,459/, these summary of bills includes Rs. 12,900/ ( Ex. PW1/2) and Rs. 12,300/ (Ex. PW1/5), however perusal of these exhibit shows that 12,900 and 12,300 are TLC count and not the medical expenses.
15. Compensation for pain and suffering: Minor petitioner is found have suffered grievous injuries in the said accident. Hence, keeping in view of the nature of injuries, duration of treatment and trauma of accident, a sum of Rs. 30,000/is granted towards pain and suffering.
16. Loss of studies: PW1 in his affidavit of evidence stated that her daughter at the time of accident was studying in 7th class but due to these injuries got failed in 7th class, however not filed any documentary evidence to substantiate the said fact. But, keeping in view the nature of injuries and duration of treatment, a lumpsum amount of Rs. 5,000/ is granted to the petitioner towards loss of Kumari Rinki Vs. Firoz Alam & ors suit no.771/11 (Pg 6 of 9) studies.
17. Compensation for Special Diet, Attendant Charges and Conveyance: PW1 has not claimed any expenses under present head in his affidavit of evidence, however this court is obliged to provide just compensation. It is natural that these kind of injuries involve substantial expenses under present head. Thus, keeping in view the nature of injuries and duration of treatment a sum of Rs. 5,000/ each is granted towards special diet, conveyance charges and attendant charges. Hence a lumpsum amount of Rs. 15,000/ is granted as expenses under present head.
18. Liability: Main plea of the insurance company is that insurance company is not liable to pay any compensation because the policy supplied by the owner is found forged and fabricated not issued by the insurance company. Insurance company also raised plea that driver was minor and also having no driving license. Insurance company in this regard examined R3W1 Ashutosh Kumar, Assistant Manager of the insurance company. He categorically stated that the covernote (Ex. R3W1/D1) was not found to be issued from the insurance company. Driver and owner despite opportunity not led any evidence to the contrary. Hence insurance company able to prove that driver and owner was not having any valid insurance policy on the date of accident. Thus insurance company is exonerated from all the liability and only driver and owner are found responsible for entire liability. As driver is minor, also found to be the son of the owner, no liability could be fastened on minor driver and thus the Kumari Rinki Vs. Firoz Alam & ors suit no.771/11 (Pg 7 of 9) entire liability is to be discharged by the owner himself.
19. Thus, the total compensation to which petitioner is entitled comes as under: S.No Details Amount 1 Medical Expenses Rs.60,259/ Compensation for special diet, attendant charges Rs.15,000/ 2 and conveyance 3 Compensation for pain and sufferings Rs. 30,000// 4 Loss of studies Rs. 5,000// Total Rs. 1,10,259/ Hence, the petitioner is awarded a total amount of Rs. 1,10,259/(Rupees one lac ten thousand two hundred and fifty nine only).
Relief :
20. The petitioner is hereby awarded a sum of Rs. 1,10,259/(Rupees one lac ten thousand two hundred and fifty nine only) alongwith interest @ 9% per annum from the date of filing of the present petition till the date of realization in favour of petitioner against the respondents on account of their liability being joint and several (excluding interest from 11.12.2012 to 04.06.2014).
21. The driver R1 driver is the principal tort feasor, R2 being the owner vicariously liable for the acts of R1.
22. In view of the above discussion, Waris Ali (R2) owner is directed to deposit the award amount in the court within a period of 30 days from today alongwith Kumari Rinki Vs. Firoz Alam & ors suit no.771/11 (Pg 8 of 9) the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay.
23. Copy of this order be given dasti to the parties.
24. Put up for receiving the compliance on 17.11.2014 Announced in open Court Dated: 16.10.2014 (Ajay Kumar Jain) POMACT02/(South East District) Saket, New Delhi/16.10.2014 Kumari Rinki Vs. Firoz Alam & ors suit no.771/11 (Pg 9 of 9)