Delhi District Court
Baby Priyancy D/O Sh. Yogesh vs ) Saurav Kumar S/O Late Suresh Mandal on 11 July, 2011
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In the court of Sh. Ashwani Sarpal, Addl. District & Sessions
Judge cum Presiding Officer, Motor Accident Claim Tribunal
Rohini Courts, Delhi.
(MACT Case no. 108/10/09)
Baby Priyancy D/o Sh. Yogesh
R/o Pana Udan, Near Harijan Chauphal,
Village Kanjhawla, New Delhi
(Minor through her father and natural guardian) ------Petitioner
Versus
1) Saurav Kumar S/o Late Suresh Mandal
R/o Village Guchhari, P.S. Gogari
Distt. Khagariya, Madhupur road,
Giridih, Jharkhand
2) Naresh S/o Sh. Raghbir Singh
V & P.O. Ladrawan, Tehsil Bahadurgarh
Distt. Jhajjar, Haryana
3) ICICI Lombard General Insurance Co.
Zenith House, Keshavrao Khade Marg
Mahalaxmi, Mumbai ----Respondents
Date of institution----15-7-2009
Date of decision-------11-7-2011
(Application u/s 140 and 166 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:-
Minor petitioner baby Priyancy aged about 3 years along with her sister baby Nancy and parents was going in Maruti Car bearing no. DL-4CA- 5680 from village Ladrawan to village Kanjhawla on 25-9-2008 and she was sitting in front seat of the car being driven by her father. When at about 9.10 a.m., the car reached near Thakur Bhhatta (brick klin), village Ladrawan, then the offending JCB machine bearing no. HR-63A-6700 being driven by -2- respondent no. 1 in rash and negligent manner and at high speed came on the main road from the Bhhatta side and hit the car on left side with its jaws. Due to this accident, petitioner and her sister baby Nancy suffered serious injuries. Respondent no. 1 run away from the spot after causing the accident while leaving offending vehicle at the spot. A criminal case under section 279/337 IPC was registered against respondent no. 1 vide FIR no. 383/08 in police station Sadar, Bahadurgarh, Distt. Jhajjar. Petitioner through the present petition filed by her father claimed sum of Rs. 6,00,000/- as compensation along with interest @ 18% p.a. from the respondents being driver, owner and insurance company of the offending JCB machine. It is important to mention here that another injured baby Nancy also filed separate claim petition which was ordered to be consolidated with the present petition at respondent's evidence stage and is being disposed off today.
Respondents no.1 and 2 in their joint written statement admitted happening of an accident but alleged that it took place due to negligent driving of Maruti car by its driver i.e. father of the petitioner on the wrong side of the road and without observing traffic rules. Respondent no. 3 insurance company in its written statement admitted existence of insurance policy in respect of offending vehicle but tried to avoid its liability on some routine technical grounds. On the basis of pleadings of the parties, following issues were framed on 20-5-2010 by my ld. predecessor:
1) Whether on 25-9-2008 at about 9:10 am near Thakur Bhhata, Village Ladrawan, Tehsil Bahadurgarh, District Jhakkar, Haryana, the petitioner suffered injures due to the accident caused by JCB Machine bearing No. HR-63-A-6700 driven by respondent no. 1 rashly and negligently? OPP
2) Whether the petitioner is entitled to compensation, if so, to what extent and from whom? OPP
3) Relief.
In order to prove the case of minor petitioner, her father Sh. Yogesh examined himself as PW-1 and Dr. Nityanand Pandey from AIIMS as PW-2 whereas respondent no. 3 examined Sh. Shanker Goswami, its investigation manager as R3W1. When despite taking three effective opportunities, respondents no. 1 and 2 failed to lead any evidence then the court was compelled to close the same by order. I have heard counsel for the respondents and gone through the -3- record as well as the written submissions filed by the petitioner. My decision on the above mentioned issues is as under:
Issue no. 1:-
Certified copies of criminal case record Ex. PW1/7 filed by petitioner shows that respondent no. 1 has been prosecuted by the police for causing the accident in question due to rash and negligent driving of offending JCB Machine. PW-1 being the father of minor petitioner was accompanying his daughter when accident took place and he is an eye witness of the accident. He in his affidavit of evidence disclosed how and in which manner accident had taken place. He specifically blamed respondent no. 1 for driving offending JCB machine in rash and negligent manner and hitting car with jaws of machine while suddenly coming on the main road from side road. Photographs of the accident Ex. PW1/1 to 6 lying on the record shows how badly car was damaged by the machine. These photographs also corroborate the story of the petitioner that offending vehicle had come on main road from side Kacha road and hit the car with its jaws.
No effective cross examination of the PW-1 had taken place in respect of manner of accident and I find nothing in his statement to discard his version. Respondents no. 1 and 2 did not step into the witness box to prove their alleged defence of happening of accident due to negligence of the car driver as stated in their written statement. The plea taken by respondents that car came on wrong side and hit the machine is also not proved from cross examination of PW-1 whereas photographs of accident spot reveals that offending vehicle had come on the main road from the side lane and the car was going on its right direction on main road. On the other hand putting of suggestion to PW-1 that car had hit the stationary JCB machine is a strange and new plea which was never the case of respondents as per their written statement. Another different suggestion given to this witness that accident had occurred due to disturbance caused by the rear seat occupants is also an unbelievable story. Twisting of facts further draw an adverse inference against the respondents that they are infact trying to mislead the court by taking contradictory stands.
It is not the case of the respondents that they had lodged any complaint to any higher authority against alleged false implication of -4- respondent no. 1 in criminal case or wrongful seizure of their JCB. It is also not their case that they had any previous enmity with the father of the petitioner or IO or knew them prior to the date of accident, so possibility of false implication of respondent no. 1 in criminal case is also ruled out. Mere fact that in the affidavit of PW-1 filed in another matter, petitioner is shown as sitting on rear seat whereas baby Nancy is shown sitting on front seat itself is not so big contradiction to reject the trustworthy statement of PW-1 who has clarified that this was a typing mistake of his affidavit. When there is no dispute that petitioner had also suffered injuries in the same accident, then her exact position inside of the car becomes unimportant. Accordingly, I find no ground to disbelieve the statement of PW-1 and it is held that accident had taken place due to rash and negligent driving of offending JCB machine by respondent no. 1 by which petitioner had suffered injuries and there was no negligence on the part of the father of the petitioner in driving the car. PW-1 has also placed on record his own driving license Ex. PW1/11 which shows that he was authorized and competent to drive the car. This issue is thus decided in favour of petitioner and against the respondents.
Issue no. 2:-
Petitioner was aged about 2½ years at the time of accident. Her MLC Ex. PW1/12 shows that she had suffered injuries on head, eye and face and was admitted in emergency ward. She was unconscious and under coma and put on ventilator. There was a fracture of skull for which she was operated upon. As per medical certificate Ex. PW1/13, petitioner remain admitted in Jaipur Golden Hospital from 25-9-2008 to 30-9-2008 and thereafter shifted to Trauma Centre of AIIMS where her fresh MLC Ex. PW1/43 was prepared. In this Trauma Centre, she remain admitted from 30-9-2008 to 29-10-2008. As per discharge summery Ex. PW1/44, there was a severe head injury and it will take long period to recover. Petitioner was advised physiotherapy and tracheostomy care. Petitioner due to recurrent seizures was again admitted in hospital on 8-11-2008 and was discharged on 11-11-2008. After discharge, her treatment continued as OPD patient and last visit to hospital is dated 9-3- 2009. Thus it can be said that the treatment of petitioner continued for about six months.-5-
Petitioner got her first treatment from Jaipur Golden hospital and the medical bill of hospital admission Ex. PW1/16 is of Rs. 1,13,820/-. Sum of Rs. 1,200/- was also spent for arranging the blood vide receipt Ex. PW1/18. Medicines bills Ex. PW1/21 to 40 purchased during admission period in Jaipur Golden Hospital are worth Rs. 20,029.06 paisa. In Trauma Centre, AIIMS also sum of Rs. 8,421.43 paisa vide Ex. PW1/45 was spent. The amount of the bills Ex. PW1/51 to Ex. PW1/65 is already added in the bill Ex. PW1/45. Thus as per documentary evidence brought on record, PW-1 spent total sum of Rs. 1,44,573.89 paisa on medical treatment of petitioner. The claim of PW-1 that he spent more then Rs. 5 lakhs upon the treatment of his daughter cannot be believed in absence of documentary evidence especially when in the AIIMS, which is a govt. hospital most of the treatment is provided free of costs. No dispute about these above mentioned bills has been raised and no evidence is brought on record to point out that the same are forged or manipulated. The story regarding misplacement of some bills cannot be accepted as correct. Hence petitioner is entitled in round figure to claim reimbursement of Rs. 1,44,574/- towards medical treatment expenses. The claim of petitioner having spent sum of Rs. 5 lakhs upon medical treatment is rejected.
Petitioner on 30-9-2008 shifted to AIIMS by ambulance and sum of Rs. 5,500/- was paid as ambulance charges vide Ex. PW1/41. No other evidence has been brought on record regarding expenses incurred on special diet and conveyance charges etc. and even no breakup of these expenses is given either in the petition or in the affidavit of PW-1. The claim of PW-1 that he spent sum of Rs. 700-800 per visit to hospital is not substantiated by documents and it is also not disclosed by which conveyance whether personal car or taxi or auto, he visited hospital. Petitioner remain admitted in hospital for total 39 days and visited hospital several times as OPD patient. She must have been taken to hospital on some conveyance. Normally in case of serious injury, a special diet in the form of healthy food, juices, milk etc. is provided instead of or in addition to the normal food. Being a small child, petitioner must have been kept on nourishing liquid diet. As per Ex. PW1/44, petitioner was advised to take high proteins and high calories diet. However in absence of any evidence in this regard and after considering her injuries, period of hospital admission and treatment etc., I am of the view that maximum petitioner can be paid Rs. 25,000/- towards special diet and conveyance.-6-
PW-2 proved the disability certificate Ex. PW1/66 which shows that she has suffered temporary disability of 61% only in relation to her speech and right side of body. The final assessment of extent of disability has to take place after five years. The condition of petitioner is likely to change as per this certificate. The averments of the PW-1 that her daughter has suffered permanent disability and now she cannot hear, speak, eat properly, has suffered paralysis of right side of body, her brain is not working properly and now she cannot become normal again cannot be believed as in this regard, PW-2 who issued the disability certificate has not alleged anything. In absence of any permanent disability, no compensation for loss of any future earning capacity can be granted but the impact of temporary disability can be taken into consideration while assessing compensation under pain and suffering head.
As petitioner was only a 2½ years old girl and was not earning at the time of accident, so no question of loss of any income arises. There is no certificate of any doctor that petitioner requires any treatment in future. It is not the case of petitioner that she was studying in any school at the time of accident or any loss of studies had taken place. Photograph of petitioner affixed on petition shows small marks on left side of her forehead due to operation and injuries but there is nothing on record that her face has been disfigured or injury marks are of permanent in nature which would cause hindrance in her marriage in future. Moreover no claim has been raised in this respect so nothing is awarded on these scores.
Judicial notice can be taken of the fact that due to suffering of such an extent of injuries, normal human life is also affected. Petitioner might have remained under great pain and sufferings due to injuries on her head. She could not have enjoyed amenities of life properly for a period of about 4-5 months. Some difficulty and inconvenience must have arisen to her. Being a small child, she could not be able to play with her friends. She must have also remained under shock of accident. She has also suffered temporary disability atleast for a period of five years. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the facts of the case, status and position of the petitioner, her 39 days hospital admission and period of treatment as well as nature of injuries, petitioner is granted lump sum amount -7- of Rs. 2,00,000/- towards pain and sufferings, inconvenience, temporary disability and loss of amenities etc. In the connected consolidated matter, R3W1 proved issuing of notice Ex. R3W1/2 under Order 12 Rule 8 CPC to the respondents asking them to produce the original driving license, insurance policy etc. This witness further proved on record report Ex. R3W1/6 given by concerned Licensing Authority under RTI Act which shows that driving license of respondent no. 1 Ex. R3W1/5 which was seized by police was fake and not issued to him. Despite service of this notice as per AD card received back Ex. R3W1/4A, respondents did not produce any other driving license of respondent no. 1. After receipt of the report of fake driving license, respondent no. 3 insurance company also lodged complaint Ex. R3W1/7 with the police for prosecution of respondent no. 1 in respect of fake driving license. No evidence in rebuttal has been brought on record by respondents no. 1 and 2 despite taking sufficient opportunity and even despite coming to know from counsel for respondent no. 3 that driving license of respondent no. 1 has been found fake. Hence, it can be said that respondent no. 1 was not having any valid, proper and legal driving license at the time of accident and his driving license was infact a fake document. In such situation, it is held that respondent no. 2 had breached the terms and conditions of the insurance policy Ex. R3W1/1 and thus respondent no. 3 is not liable to pay the compensation amount. Entire responsibility to pay the compensation is of respondent no. 2 owner of the offending vehicle.
Supreme Court in Prem Kumari vs. Prahlad Dev 2008 ACJ 776 also held that where driving license of driver is found fake and if insurance company had not made the payment to the claimants during pendency of the petition, then it is not liable to pay anything and only owner shall be liable but if any interim payment has been made then it can be recovered by the company from the owner.
Counsel for petitioner in his written submissions relied upon the decision of Supreme Court given in case Oriental Insurance Co. vs. Zaharulnisha AIR 2008 Supreme Court 2218 and requested for giving directions to respondent no. 3 to pay the compensation at first instance who may be given recovery rights but this judgment is distinguishable from the facts and circumstances of the present case because in this cited judgment, driver was having valid driving license but was not competent to drive the -8- offending vehicle whereas in the present case there is no valid license at all and whatever driving license was shown is found fake one.
After considering the merits of the case, this issue is decided in favour of petitioner who is held entitled to get the following total compensation from the respondent no. 2 owner of the offending vehicle:
a) Pain and sufferings, loss of amenities etc.-------Rs. 2,00,000/-
b) Special diet & conveyance charges----------------Rs. 25,000/-
c) Medical expenses-------------------------------------Rs. 1,44,574/-
__________________ Total Rs. 3,69,574/-
Petitioner shall be entitled to interest at the rate of 7.5% p.a. on this amount from the date of institution of the petition i.e. 15-7-2009 till realization.
Issue no. 3 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 2 owner of the offending vehicle is directed to pay within 30 days a sum of Rs. 3,69,574/- along with interest at the rate of 7.5% p.a. from 15-7-2009 till this amount is fully paid. It is further ordered that out of the compensation amount, sum of Rs. 3,00,000/- be deposited in shape of FDR in the name of petitioner till the date of her majority in SBI, Rohini Court branch. Father of petitioner however is permitted to withdraw quarterly interest on the same. This FDR shall not be encashed without permission of the court.
In respect of fake driving license of respondent no. 1, respondent no. 3 had given a complaint to the police Ex. R3W1/7 sent by registered post on 24-3-2011. Let a report be called about action taken on that complaint from the concerned SHO police station Sadar, Bahardurgarh, Jhajjar and S.P. Jhajjar within 15 days. Copy of this judgment be given to all the parties and file be consigned to record room.
(Ashwani Sarpal)
Dt. 11-7-2011 Judge, MACT (Outer-II)