Delhi District Court
Sh. Gaya Prasad S/O Sh. Ram Sahai vs Manzoor Khan S/O Sh. Maksud Khan on 4 February, 2010
1
IN THE COURT OF SHRI SANJAY KUMAR AGGARWAL
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
NEW DELHI
SUIT NO.: 204/00
DATE OF INSTITUTION : 10.07.2000
Sh. Gaya Prasad S/o Sh. Ram Sahai,
R/o S-184/82, New Sanjay Camp, Part II,
Near Mohan Export, Okhla, Phase I, New Delhi.
.......Petitioner.
VERSUS
1. Manzoor Khan S/o Sh. Maksud Khan,
R/o D-8/5, Model Town, Delhi.
2. Manoj Kumar Yadav S/o Durga Prasad Yadav,
R/o WZ-86, Todapur, New Delhi.
3. Oriental Insurance Co. Ltd.,
9th Floor, Tower I, Jeevan Bharti Bldg.,
124, Connaught Place, New Delhi.
......... Respondents
AWARD
1. This Judgment-cum-Award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred as Act) filed by petitioner for grant of compensation for the injuries suffered by him in the road vehicular accident.
2. The case of the petitioner is that on 27.8.99 at about 9.15 AM, while the petitioner was going on cycle from Tehkhand Village to his house, and while he reached in front of Tata Steel, Okhla, Phase, the offending vehicle bearing registration number DL-1PA-1991 driven by the respondent no. 1 in a rash and negligent manner hit the cycle of the petitioner. As a result of impact, the petitioner received injuries. He was removed to AIIMS Hospital. In total, the petitioner have claimed Rs. 5 lacs as compensation on account of the injuries sustained by him in the accident.
23. The written statement was filed by the respondent no. 1 and the respondent no. 2 wherein they categorically denied the very claim and termed the case of the petitioner to false one. It was submitted that the offending vehicle never met with an accident. The written statement was filed by respondent no.3, insurance company wherein wherein it was admitted that the offending vehicle was insured with it on the date and time of accident but denied the claim of the petitioner.
4. On the pleadings of the parties following issues arise for consideration on 22.02.2003:
1.Whether Sh.l Gaya Prasad suffered injuries in an accident that took place on 27.8.1999 in front of Tata Steel, Okhla, Phase I, New Delhi due to rash and negligent driving of bus No. DL-1PA-1991 by respondent no. 1, owned by R2 and insured with R3? OPP.
2. Whether Respondent no. 3 is not liable for compensation on account of preliminary objections taken by it in their written statement?
3. Whether the petitioner is entitled for compensation ? If so to what amount and from whom>
4. Relief.
5. In order to establish the claim of the petitioners, learned counsel for the petitioner has filed the affidavit of Shri Gaya Prasad who has been examined as PW-1. Besides, PW2 Sh. Jai Parkash, Record Clerk, AIIMS and Dr. V.K.Gautam, Professor of Orthopedic 3 Surgery, Maulana Azad Medical College were also examined. The respondents have adduced the evidence of R2W1 Sh. Manoj Kumar Yadav, R3W1 Sh. S.C.Khanna, Asstt. Mgr., Oriental Insurance Co.
Ltd. and R3W2 Sh. Virender Pal Singh, LDC, RTO, Mall Road in their defence.
6. I have thoroughly gone through the testimony of the witness and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the parties. My findings on various issues are as under :
ISSUE NO. 17. Since the present petition is under Section 166 of M V Act, it was the bounden duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident. The petitioner have filed the certified copies of criminal record i.e. the copy of FIR bearing No. 641/99 besides charge sheet etc. To determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the competition 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 on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not 4 required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed 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.
8. Therefore, reading all the documents filed by the petitioner as a whole it is clear that respondent No.1 was driving the vehicle in a rash and negligent manner.
9. The issue No:1 therefore, stands in favour of the petitioners and against the respondents.
COMPENSATION :
NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS :
10. As per the medical record, the petitioner had got injuries/fracture pelvic, fracture tibia etc. He had also swelling over left upper thigh. The petitioner also got multiple small abrasions over left knee with deformity of knee joint. The petitioner had got serious injuries as suggested by medical record. The petitioner have also got 40% disability which has already been proved by calling the Dr. V.K.Gautam. The petitioner has not filed any original bills and have 5 filed the photocopies of the bills. It is claimed that the original medical bills have been misplaced. The petitioner appears to illiterate. The cognizance can also be taken on the fact that in such like cases, the public at large is generally ignorant and insensitive to take care of the medical bills etc. and are more concerned with their treatment. Therefore, I hereby award a sum of Rs. 10,000/- towards medical bills keeping in view the nature of injuries. PAIN AND SUFFERINGS :
11. It is settled law that a particular amount can not be fixed on pain and sufferings for all cases as is varies from case to case. Judicial notice can be taken on the fact that since the petitioner had got injuries/fracture as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy dose of anti-biotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision:
2.2.2007, Delhi High Court by Hon'ble Mr. Justice Pradeep Nandrajog wherein it was held that:-
"On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
© Duration of the treatment."
612. Keeping in view the said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs. 25,000/- towards pain and sufferings and loss of amenities of life. Besides this, I hereby award a sum of Rs. 1,000/- towards special diet and Rs. 1,000/- towards conveyance.
LOSS OF INCOME OWING TO DISABILITY :
13. As already said, the disability certificate has already been proved by the petitioner through witness Dr. V.K.Gautam wherein he categorically stated that the petitioner had got more than 40% disability. No income proof has been filed. The petitioner was stated to be in service and was earning Rs. 3000/- per month. Since no income proof has been filed, this court shall assess the loss of income of the petitioner owing to disability on the basis of Minimum Wages Chart. The date of accident is 27.8.99. The minimum wages for a unskilled labourer on that day were Rs. 2348/- per month. Therefore, the age of the petitioner as on the date of accident was stated to be 35 years.
14. After applying the relevant multiplier of 16 in terms of the judgment of the Hon'ble Supreme Court of India in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08, the total loss of income owing to disability comes to be Rs. 2348 X 12 X 16 X 40% = Rs. 1,80,326.4/- rounded off to Rs. 1,80,330/-
7The total compensation is assessed as under:-
Treatment expenses: Rs.10,000/-
Pain and sufferings: Rs.25,000/-
Special diet: Rs. 1,000/-
Conveyance : Rs. 1,000/-
Loss of Income : Rs. 1,80,330/-
Total: Rs. 2,17,330/-
RELIEF:
15. I award Rs. 2,17,330/- (Rupees Two Lac Seventeen Thousand and Three Hundred and Thirty only) as compensation with interest at the rate of 7.5% per annum including interim award, if any from the date of filing the petition i.e., 10.07.2000 till the date of its realisation in favour of the petitioner and against the respondents on account of their liability being joint and several.
APPORTIONMENT OF LIABILITY:
16. The insurance company have taken the plea that the driving licence of the driver of the offending vehicle was a fake one. It has relied upon the testimony of R3W2 Sh. Virender Pal Singh, LDC, RTO, Mall Road. The said R3W2 proved the verification report of DL as Ex.R3W2/1. The main stress of the insurance company was on the examination chief of the said witness wherein he had stated that he had thoroughly checked up the record and as per the authority record, the licence was not issued by their authority. The insurance company have also lead the evidence of its own officer R3W1 Sh. S.C.Khanna, Asstt. Mgr. in order to establish the fact that there was violation of the terms and conditions of the policy.
817. I have checked up the said verification report of the RTO, Mall Road. In the said report it is stated that since the legible copy was not supplied, the record of the said licence could not be traced. Moreover, the owner of the offending vehicle have also examined himself as R2W-1 wherein he stated that at the time of appointment of the driver, he had taken the driving test of the driver and also had seen his licence.
18. In view of the aforesaid circumstances, insurance company has not been able to prove that the driving licence was fake one. First of all, because of the reasons that witness from RTO has not clearly given the said report. It has only been mentioned in the report that the record could not be traced. Further, the driver was subjected to driving test prior to his appointment.
19. In view of the judgement passed by Hon'ble Supreme Court of India in United India Insurance Company Vs. Lehru AIR 2003 SC 1292 , it was observed that where the owner have checked at the time of appointment of the driver that he had a driving licence and when the driver produced the driving licence which looks genuine, the owner is not expected to find out whether the driving licence has been issued by competent authority or not. It the owner, found by testing the driving, that the driver is competent, he will hire the driver.
20. Therefore, in view of the aforesaid discussion, the plea of the insurance company for grant of recovery rights to the insurance company is rejected.
921. The respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, respondent No.3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
File be consigned to record room.
Announced in the open court On 4th February, 2010.
(SANJAY KUMAR AGGARWAL)
PO: MACT : NEW DELHI
10
Gaya Prasad Vs. Manzoor Khan
4.2.2010
Present: None.
Vide separate order, an award in the sum of Rs.
2,17,330/- including the interim compensation if paid any, alongwith interest at the rate of 7.5% per annum is passed from the date of filing the petition till its realisation. in favour of the petitioner and against the respondents File be consigned to record room.
(SANJAY KUMAR AGGARWAL) PO: MACT : NEW DELHI 11