Delhi District Court
Sh. Sandeep vs Sh. Praveen on 20 August, 2018
MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 4851/16 (Old MACP No. 99/08)
Sh. Sandeep,
S/o Sh. Raj Singh,
R/o V.P.O Juan,
District Sonepat, Haryana.
..........Petitioner
VERSUS
1. Sh. Praveen,
S/o Sh. Satbir,
R/o. V.P.O Kurar,
District Sonepat, Haryana
(Drivercumowner of Tata 407 bearing registration no. HR69A0414)
2. New India Assurance Company Ltd.
Jeevan Bharti Building,
5th Floor, Connaught Place,
Delhi (Insurer of Tata 407 bearing registration no. HR69A0414)
3. Sh. Sahab Singh,
S/o Sh. Ram Ji Lal,
R/o H.No. P4/862,
Sultan Puri, Delhi.
(Driver of Dumper bearing registration no. HR38F7544)
4. Sh. Praveen Garg,
Sh. Satbir,
R/o H.No. 199,
Pocket - 3, Sector - 24,
Rohini, Delhi.
(Owner of Dumper bearing registration no. HR38F7544)
5. Bajaj Allianz General Insurance Company Limited
201201A, 2nd Floor,
ICL Twin Tower,
Netaji Subhash Place,
Pitampura, Delhi.
(Insurer of Dumper bearing registration no. HR38F7544)
............Respondents
Sandeep Vs. Praveen & Ors. Page 1 of 33
MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 Date of Institution : 25.01.2008 Date of Arguments : 04.08.2018 Date of Award : 20.08.2018 APPEARANCES: Sh. R.S. Lathwal, Adv for petitioner.
None for respondent no. 1.
Sh. Ravi Satija, adv for respondent no. 2.
None for respondents no. 3 & 4.
Sh. Lalit Dhingra, Adv for respondent no. 5.
Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner has sought compensation to the tune of Rs. 15,00,000/ with interest @ 12% per annum from the date of filing of petition till the date of realization, for the injuries sustained by him in Motor Vehicular Accident which occurred on 18.07.2007 at about 3:30 AM at G.T.K. Road, Near Delhi Jal Board Complex, Village Tikri Khurd, Delhi, involving Dumper No. HR38F7544 and Tata 407 bearing no. HR69A0414 (alleged offending vehicles).
2. It is averred in the claim petition that the petitioner was engaged in business of Poultry Farming having his farm at Village Teha, Gannaur, District Sonepat, Haryana. It is further averred that on 17.07.2007, he hired the offending Tata 407 vehicle bearing registration no. HR69A0414 which was owned and driven by the respondent no. 1 for selling his product(Birds) to Delhi Market. The vehicle was loaded with birds and started its journey on 18.07.07 at about 2 am for Delhi. He was sitting in the front cabin. The driver/respondent no.1 of the aforesaid tempo was driving the vehicle at very high speed and in rash and negligent manner for which he had objected the driver many times but he did not listen to him. When the said vehicle reached near Jal Board, Near Village Tikri Khurd, Delhi, it was observed that one Dumper No. HR38F7544 which was found to be owned by respondent no. 4 Sandeep Vs. Praveen & Ors. Page 2 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 and driven by respondent no. 3, was parked facing towards Delhi in the middle of main Highway without any parking lights/signals ON and also without putting any landmark, which was necessary for parking of vehicle on the main road. The respondent no. 1/driver of aforesaid Tempo in order to overtake the standing vehicle, hit his vehicle from the conductor side against the parked vehicle. As a result thereof, he sustained grievous injuries. He was removed to BJRM Hospital, Jahangir Puri, Delhi. Thereafter, he was shifted to Jaipur Golden Hospital. He remained admitted in Jaipur Golden Hospital for 10 days and thereafter, he was treated at Saroj Hospital, Rohini, Delhi. He had also received treatment from Shankra Nathralaya Hospital, Chennai, where he had been operated twice. It is further averred that the petitioner was doing Poultry Farming and was earning Rs. 15,000/ per month at the time of accident. The said vehicle i.e. Tempo bearing no. HR69A0414 was insured with New India Assurance Company Ltd /respondent no. 2 during the period in question. It is further claimed that the aforesaid Dumper No. HR38F7544 was insured with Bajaj Allianz General Insurance Company Limited/respondent no. 5 during the period in question.
3. In his WS/reply, the respondent no. 1 i.e. drivercumowner of Tata 407 bearing registration no. HR69A0414 has claimed that no such accident as alleged in the claim petition, ever took place due to his rash and negligent driving of aforesaid tempo. He further claimed that the accident has taken place due to sole negligence of the respondent no. 3 i.e. driver of Dumper No. HR38F7544. However, he has claimed that the aforesaid Tempo was insured with respondent no. 2 at the time of accident in question. On merits, he has simply denied the averments made in the claim petition and has prayed for dismissal of claim petition.
4. In its WS/reply, the respondent no. 2/insurer of vehicle bearing no. HR69A0414, has raised statutory defence as provided in Section 149(2) M.V. Act. On merits, the averments made in the claim petition have been denied for Sandeep Vs. Praveen & Ors. Page 3 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 want of knowledge. However, it has been admitted that vehicle no. HR69A 0414 was insured with it, vide policy no. 353600/31/06/01/00003589 w.e.f 31.01.2007 to 30.01.2008 in the name of Sh. Bijender Singh. However, later on, the policy was got transferred in the name of respondent no. 1, vide endorsement no. 353600/31/07/01/83000002 dated 16.04.07. It has prayed for dismissal of the claim petition.
5. In their joint WS, the respondents no. 3 & 4 i.e. driver and registered owner of Dumper bearing registration no. HR38F7544, have claimed that the aforesaid vehicle was parked with reasonable steps as the tyre of said vehicle was got punctured. It is further claimed that respondent no.3 was holding valid and effective DL at the time of accident. It is also claimed that the aforesaid Dumper was insured with respondent no. 5, vide policy no. OG081104180700000582 w.e.f. 23.06.07 to 22.06.08 at the time of accident in question. On merits, they have simply denied the averments made in the claim petition for want of knowledge. They have claimed that the accident occurred due to own negligence and carelessness on the part of petitioner as well as on the part of respondent no. 1 who was the driver/owner of Tata 407, which hit/collided with the vehicle of respondent no. 4. Based on these averments, they have prayed for dismissal of the claim petition.
6. In its WS, the respondent no. 5 i.e. insurer of vehicle no. HR38F 7544, has raised preliminary objections that the petitioner had sustained injury because of sole negligence on the part of driver of Tata 407 bearing registration no. HR69A0414 in which the petitioner was travelling since the said vehicle was being driven in rash and negligent manner by its driver/respondent no. 1. On merits, it has simply denied the averments made in the claim petition. However, it has admitted that Dumper no. DL1LG6422 was duly insured with it, vide policy no. OG081104180700000582 w.e.f. 23.06.07 to 22.06.08.
Sandeep Vs. Praveen & Ors. Page 4 of 33MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018
7. From pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 05.05.2009:
1. Whether the petitioner received serious injuries in the accident occurred on 18.07.2007 at about 3:30 am at G.T.Karnal Road, near Delhi Jal Board Complex, Village Tikri Khurd, Delhi due to rash and negligent driving of R1 & R3 of vehicle No. HR69A0414(Tata407) and No. HR38F7544(Dumper)? OPP.
2. Whether the petitioner is entitled to compensation, if so to what extent and from which of the respondents?OPP.
3. Relief.
8. In support of his claim, the petitioner has examined four witnesses i.e. himself as PW1, PW2 Dr. Sanjay Kumar, CMO, BJRM Hospital, PW3 Dr. Pradeep Dua, Incharge (Casualty), Jaipur Golden Hospital and PW4 Dr. S.P. Sharma, Medical Officer, Civil Hospital, Sonepat, Haryana and closed PE on 13.05.2011 through his counsel. On the other hand, no evidence was adduced by the respondents no.1 & 2 despite grant of opportunities. Infact, R1 was proceeded exparte vide order dated 13.04.12 passed by my Ld. Predecessor. However, the respondents no. 3 & 4 have examined themselves as R3W1 and R4W1 respectively. R5/Insurer of Dumper No. HR38F7544 has examined five witnesses i.e. R5W1 Sh. Sanjay Mathur, from the office of Licencing Authority, ARTA, Mathura, U.P, R5W2 Sh. Ranjit Singh, ARTO, Mathura, U.P, R5W3 Sh. Ajay Sharma, Administrative Officer, New India Assurance Company Limited, R5W4 Sh. Rajender Chaudhary, Divisional Manager, New India Assurance Company Limited and R5W5 Sh. Nilesh Bairwa, Senior Executive, Bajaj Allianz General Insurance Company Limited and closed evidence on 06.05.2017 through its counsel.
9. Before proceeding further, it may be noted that vide order dated 10.12.10 passed by my Ld. Predecessor, it was directed that the petitioner shall not be entitled to any interest w.e.f. 09.04.2010 till the conclusion of his Sandeep Vs. Praveen & Ors. Page 5 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 evidence. Record shows that PE was closed on 13.05.2011. Thus, his right to claim interest, if any, has been curtailed from 09.04.2010 till 13.05.2011.
10. I have already heard the arguments addressed by ld counsels for the parties. I have also gone through the record. Both the sides were directed to submit their respective submissions in Form IV B, vide order dated 04.08.18 but they have not submitted the same on record till date. My findings on the issues are as under: ISSUE NO. 1.
11. For the purpose of this issue, the testimony of PW1 Sh. Sandeep Kumar (injured himself) is relevant. In his evidence by way of affidavit (Ex. PW1/X), he has deposed on the lines of averments made in the claim petition. He deposed that on 17.07.2007, he had hired Tata 407 vehicle bearing registration no. HR69A0414 which was owned and driven by the respondent no. 1 for selling his product(Birds) to Delhi Market. The said vehicle was loaded with birds and started its journey on 18.07.07 at about 2 am for Delhi. He was sitting in the front cabin. He further deposed that the driver/respondent no.1 was driving the said tempo at very high speed and in rash and negligent manner, for which he had objected the driver many times but he did not listen to him. When the said vehicle reached near Jal Board, Near Village Tikri Khurd, Delhi, it was observed that one Dumper no. HR38F 7544 was parked facing towards Delhi in the middle of main Highway without any parking lights/signals ON and also without putting any landmark, which was necessary for parking of vehicle on the main road. He also deposed that the respondent no. 1 in order to overtake the standing vehicle, hit his vehicle from conductor side with the parked vehicle. As a result thereof, he sustained grievous injuries. He was removed to BJRM Hospital, Jahangir Puri, Delhi. Thereafter, he was shifted to Jaipur Golden Hospital. He remained admitted in Sandeep Vs. Praveen & Ors. Page 6 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 Jaipur Golden Hospital for 10 days and thereafter, he was treated at Saroj Hospital, Rohini, Delhi. He also deposed to have received treatment from Shankra Nathralaya Hospital, Chennai, where he had been operated twice. He has relied upon the following documents: S.No. Description of documents Remarks
1. Copy of Ration Card Ex. PW1/A
2. Copy of Rent Agreement Mark A
3. Copy of insurance policy of vehicle Mark B no. HR69A0414
4. Copy of FIR Ex. PW1/C
5. Medical Treatment Record Ex. PW1/D(colly)
6. Summary of medical bills and Ex. PW1/F(colly) medical bills
7. ITRs for the Assessment Years Ex. PW1/G(colly) 200405, 200506 & 200708
8. Copy of Disability Certificate Ex. PW1/H
12. . During his crossexamination on behalf of respondent no. 2, he deposed that he was sitting in the cabin of Tata 407. He further deposed that besides him, driver and helper were also present in the cabin. During his cross examination on behalf of respondents no. 3 & 4, he deposed that he was not working in Tata 407 bearing registration no. HR69A0414 as driver or cleaner. He further deposed that driver of the vehicle in which he was travelling, was driving the same at a speed of about 8090 Kmph. When he had protested against the fast speed then the driver told him that at slow speed, they could not reach Delhi on time. The accident took place at about 3 am(night). He had seen that one dumper bearing no. HR38F7544 was standing in the middle of the road without any indication or parking light. He further deposed that he had seen the Dumper parked in the middle of the road from the distance of about 2530 feet. After the accident, he became unconscious. He admitted that after the accident, one person i.e. cleaner of aforesaid Dumper had also died. He denied the suggestion that there was no negligence on the part of driver of the dumper. He volunteered that both the Sandeep Vs. Praveen & Ors. Page 7 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 drivers of dumper and Tata 407 were at fault. During his crossexamination on behalf of respondent no. 5, he deposed that there were only three persons in the vehicle in which he was travelling. He further deposed that their driver or he had not paid any tax at the barrier of Sonepat, Delhi Border. He volunteered that Toll Tax was paid by the driver. He did not remember whether the police had recorded his statement during the investigation or not. He also did not remember whether he had given any statement to the effect that there was negligence on the part of dumper driver also. He deposed that he did not know whether the police had filed the chargesheet against the driver of Tata
407. He admitted that dumper was parked at the side of the road. He again said that the dumper was parked in the middle of the road but he did not know whether the tyre of the dumper was punctured and the driver was changing it at the time of accident or not. The site plan was not prepared in his presence. He denied the suggestion that he had falsely mentioned in his affidavit that the dumper's driver was also negligent.
13. It is evident from the testimony of PW1 that the respondents, could not impeach his testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of cross examination. Even otherwise, PW1 himself is the injured having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against respondent no.1. Moreover, FIR No. 227/07(supra)(Ex. PW1/C) which is also shown to have been registered on the statement of Complainant Sh. Sahab Singh, recites the same sequence of facts which led to the accident in question, as deposed by PW1 during the course of inquiry.
14. It is pertinent to note that the respondent no.1/driver of aforesaid Tempo, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he preferred not to enter into the witness box and to stay away from the proceedings during the course of inquiry. Thus, an adverse inference is liable Sandeep Vs. Praveen & Ors. Page 8 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 to be drawn against him to the effect that the accident in question had occurred due to rash and negligent driving of Tempo no. HR69A0414 by him as well.
15. No doubt, the respondents no. 3 & 4 have examined themselves as R3W1 and R4W1 during the course of inquiry but insofar as the testimony of R4W1 is concerned, same is of no relevance to this issue as undisputedly, he was not present at the time of accident and cannot tell about the manner in which the accident had taken place. The respondent no. 3 in his evidence by way of affidavit (Ex R3W1/A), has deposed that he had not caused the alleged accident and he has been falsely implicated in the present case. He further deposed that it was admitted by the petitioner that he had met with an accident due to the driver of the offending vehicle Tata 407. He further deposed that the petitioner had also admitted that the respondent no. 1 was driving his vehicle at very high speed and in rash and negligent manner. He also deposed that his vehicle was parked after taking reasonable steps as the tyre of the said vehicle i.e. HR38F7544 got punctured. He further deposed that he was holding valid DL and there was valid permit of the said vehicle at the time of accident and the said vehicle was also insured with respondent no. 5 at the time of accident. He categorically deposed that the accident occurred due to own negligence and carelessness on the part of the petitioner inasmuch as the respondent no. 1 had collided the vehicle no. HR69A0414 with his vehicle. During his crossexamination, he deposed that he did not meet the claimant after the date of accident but again said that they were living in the neighbourhood but claimant had not come to blackmail him as stated by him in his affidavit.
16. It is quite apparent from the perusal of testimony of R3W1 that same does not inspire confidence inasmuchas, he failed to establish on record even on the basis of pre ponderance of probabilities that Dumper No. HR38F 7544 was got punctured or that cleaner of the said vehicle, was standing at the Sandeep Vs. Praveen & Ors. Page 9 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 back side thereof for giving a signal. It is relevant to note that the said witness(who is driver of Dumper No. HR38F7544) has nowhere disclosed the name of the Cleaner who was stated to be standing on the back side of vehicle for giving the signal. Mere denial on his part that there was no Parking Light/Signal being put in ON condition at the time of accident, would not suffice as burden lies upon him to establish through cogent and definite evidence to show that he had taken all reasonable precautions with regard to the parking of said vehicle on the place of accident, which is Highway. For this purpose, it was not difficult for him to file photographs of Dumper No. HR38F7544, which would have clearly shown that it was lying parked after taking reasonable steps as claimed by him. Having not done so, an adverse inference is liable to be drawn against him in this regard to the effect that the said vehicle would have been parked somewhat in the middle of Highway as deposed by PW1 Sandeep during the course of inquiry.
17. The very act of parking any Commercial vehicle on the Highway, itself constitutes negligence on the part of its driver and the conduct of driver of such vehicle in neither putting any landmarks or without giving any indicator or reflector or putting its parking lights in ON condition and in not taking any other reasonable precautions so as to give any signal/indication to other vehicles moving on said Highway, clearly brings home such conduct within the meaning of negligence on his part by applying the test of reasonable and prudent person. This is apart from the fact that PW1 i.e. injured himself who was in the vantage position to see the sequence of facts being sitting in the Tempo No. HR69A0414, has categorically testified that aforesaid Dumper was lying parked in middle of the Highway without giving any indicator or signal at such an odd hours of the night on the day of accident. In view of these facts and circumstances, I am of the considered opinion that there was negligence on the part of driver i.e. respondent no. 3 of Dumper No. HR38F7544 also, due to which accident in question had taken place.
Sandeep Vs. Praveen & Ors. Page 10 of 33MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018
18. Apart from the negligence on the part of driver of Dumper No. HR38F7544 as held above, there is sufficient evidence being available on record which clearly establish that there was rash and negligent driving on the part of driver i.e. respondent no. 1 of Tempo No. HR69A0414. The respondent no. 1 namely Sh. Praveen (accused in State case) has been charge sheeted for offences punishable U/s 279/337/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending Tempo bearing registration no. HR69A 0414 by him. Same would also point out towards rash and negligent driving of aforesaid vehicle by respondent no. 1.
19. It is an undisputed fact that FIR no. 227/07 (supra) was registered at PS. Alipur with regard to accident in question. Copy of said FIR as also the copy of charge sheet arising out of said FIR(which are part of criminal case record), would show that FIR was registered on 18.07.07 i.e. on the date of accident itself. Thus, FIR is shown to have been registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of Tempo bearing registration no. HR69A0414 at the instance of petitioner herein.
20. Apart from above, copy of MLC (Ex. PW2/A) of injured prepared at BJRM Hospital, Jahangir Puri, Delhi, shows that he had been removed to said hospital on 18.07.2007 at 3.00 AM with alleged history of RTA. On his local examination, he was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.
21. Counsel for respondent no. 5, which is insurer of Dumper No. HR38F7544, vehemently argued that it has no liability to pay any Sandeep Vs. Praveen & Ors. Page 11 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 compensation amount whatsoever. In order to bring home his point, he relied upon the testimony of R5W3 who is the Administrative Officer of New India Assurance Company Limited (R2 herein), whereby the said witness produced the relevant record of having made the payment of Rs. 9,46,170/ by his insurance company to the claimants who were legal heirs of deceased Ram Niwas in connected claim petition arising out of the accident in question. The said witness has exhibited the copies of relevant documents regarding payment of compensation amount in other claim petition as Ex. R5W3/1 to Ex. R5W3/4. He also relied upon the testimony of R5W5 who is the officer of Bajaj Allianz General Insurance Company Limited(R5 herein), whereby the said witness deposed that New India Assurance Company Limited had paid compensation amount against two separate claims lodged with it with regard to accident in question. He further deposed that death case of Ram Niwas arising out of same accident bearing MACP No. 664/10/07 was decided by Claims Tribunal vide award Ex. R5W3/1 and said award was upheld vide order dated 28.11.11(Ex. R5W3/2) by Hon'ble Delhi High Court and was further upheld by Hon'ble Apex Court vide order (Ex. R5W3/3) passed in SLP No. CC 18288/2011. He also relied upon copy of cheque deposit receipt (Ex. R5W3/1). He also deposed that in said claim petition, it has already been held that accident in question had taken place due to sole negligence on the part of driver of tempo no. HR69A0414.
22. Based on testimonies of aforesaid two witnesses, counsel for R5 vehemently argued that Law of Estoppel shall apply in this case and R2 i.e. New India Assurance Company Limited, can not be allowed to escape from its liability to pay the compensation amount in this case. On the contrary, counsel for R2 argued that Law of Estoppel does not apply in this case as R2 was not a party in the claim petition i.e. MACP No. 664/10/07. He further argued that the issue of negligence has to be decided by Claims Tribunal on the basis of evidence as brought on record during the course of inquiry. For this purpose, he placed reliance upon decision of Hon'ble Apex Court reported at 2013 ACJ Sandeep Vs. Praveen & Ors. Page 12 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 2544. He therefore urged that the negligence if any in occurrence of accident in question, should be attributed to driver of Dumper No. HR38F7544.
23. After bestowing my thoughtful consideration to the respectful submissions made on behalf of both the sides, I find myself in agreement with the submissions made on behalf of R2. It is an admitted position on record that R2 was not a party to the claim petition i.e. MACP No. 664/10/07 and thus, any finding rendered by Claims Tribunal in said proceedings, can not be made binding upon R2 by taking recourse to the principle contained in Law of Estoppel. I am also of the considered opinion that the issue of negligence has to be decided independently on the basis of evidence as brought on record by both the sides during the course of inquiry and any finding on this aspect delivered in any other claim petition even if arising out of same accident, would have no effect on other similar claim petition.
24. In view of the aforesaid discussion, the heavy reliance placed by counsel for R5 on the ocular testimonies of R5W3 & R5W5, are of no help to him. In the light of categorical and unimpeached testimony of PW1 Sandeep Kumar, who himself had sustained injuries due to the accident in question, there is no scope of doubt in arriving at the conclusion that the accident in question had taken place due to composite negligence on the part of drivers of Tempo No. HR69A0414 and Dumper No. HR38F7544.
25. Now, the next question which arises for consideration is as to how to determine the extent of negligence on the part of drivers of the aforesaid two vehicles in the case of composite negligence.
26. Without referring to the entire series of decisions on the point in issue, it would be appropriate to refer to the leading cases on this point. Hon'ble Apex Court in the matter titled as " T.O. Antony Vs. Karvarnan & Ors." reported at (2008) ACC 706 (SC) has discussed the Sandeep Vs. Praveen & Ors. Page 13 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 concept of 'composite negligence' and the apportionment of liability amongst joint tortfeasors in para6 of the judgment as under: "xxxxxxxxxx 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the Court to determine the extent of liability of each wrong doer separately.
On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. Xxxxxx"
27. Recently, Hon'ble Apex Court in the matter titled as " Khenyei Vs. New India Assurance Co. Ltd. & Ors. in Civil Appeal No. 4244/15 decided on 07.05.2015 has concluded the legal position with regard to liability of insurance company in case of composite negligence as under: "xxxxxx What emerges from the aforesaid discussion is as follows: (I) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any of the joint tort feasors and to recover the entire Sandeep Vs. Praveen & Ors. Page 14 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the Court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the same from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the Court/Tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the Court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.
Xxxxx"
28. Having judged the facts of the present case on the touch stone of the legal position as laid down by Hon'ble Apex Court in above mentioned two judgments, it is quite crystal clear that respondent no. 3 i.e. New India Assurance Co Ltd, being insurer of Tempo No. HR69A0414 owned by respondent no. 1 and respondent no. 5 i.e. Bajaj Allianz General Insurance Company Limited, being insurer of Dumper No. HR38F7544, are liable to pay the compensation amount to the petitioners. Since, there is no material whatsoever on the point of extent of composite negligence of the drivers of aforesaid two vehicles, it would not be appropriate for this Tribunal to determine the extent of composite negligence of the drivers of said two vehicles in the present proceedings.
Sandeep Vs. Praveen & Ors. Page 15 of 33MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018
29. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of pre ponderence of probabilities that he had sustained grievous injuries in road accident which took place on18.07.2007 at about 3:30 AM at G.T.K. Road, Near Delhi Jal Board Complex, Village Tikri Khurd, Delhi, due to rash and negligent driving of tempo bearing registration no. HR69A0414 by respondent no.1 and also due to negligence on the part of respondent no. 3 in parking Dumper bearing no. HR742188 in the middle of the highway without any indicator or parking light at such an odd hours. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 2.
30. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
MEDICAL EXPENSES
31. PW1 Sh. Sandeep Kumar i.e. injured himself, has deposed in his evidence by way of affidavit(Ex. PW1/X) that after the accident, he was taken to BJRM Hospital, Jahangir Puri, Delhi, from where he was shifted to Jaipur Golden Hospital. He remained admitted in Jaipur Golden Hospital for about 10 days and thereafter, he had received treatment from Saroj Hospital, Rohini, Delhi. He further deposed that he had sustained grievous injuries in the accident in question. He also deposed to have received medical treatment from Shankara Netralaya Hospital, Chennai and also deposed to have been operated three times for his eyes. He has relied upon medical bills (which is part of Ex. PW1/F colly) to the tune of Rs. 2.89,892/. During his cross Sandeep Vs. Praveen & Ors. Page 16 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 examination on behalf of respondent no.3, he deposed that his treatment had taken place at Chennai hospital but he got his disability certificate issued from Sonepat, Haryana. He denied the suggestion that he had not spent Rs. 5 lacs on his treatment, transportation, conveyance etc. He further denied the suggestion that he had filed false and fabricated bills of treatment. During his crossexamination on behalf of respondent no. 5, he deposed that he did not have any document to show that he had to spent some more expenses on his treatment in future. He volunteered that he need to go for operation at Shankara Netralaya, Chennai in April 2011. He further deposed that he had no document to show that he was advised operation in April 2011 by Shankara Netralaya, Chennai. He admitted that he did not receive any treatment from Government Hospital, Sonepat from where his disability certificate was prepared. Respondent no. 1 did not crossexamine this witness being already exparte. Respondents no. 3 & 4 did not crossexamine this witness at all on this aspect.
32. PW2 Dr. Sanjay Kumar, CMO, BJRM Hospital has produced attested copy of MLC No. 28807 dated 18.07.7 pertaining to patient Sandeep Kumar. He deposed that the said patient was brought in their hospital on 18.07.2007 at about 5 am. He further deposed that the said patient was taken from the hospital by some relatives against the medical advise. No final opinion about the injuries could be given as Xray was advised and no Xray report was filed. He also deposed that the injuries were suffered in road side accident and was brought in the hospital by CATs. The MLC was first prepared by Dr. Roopak, JR and further examined by Dr. Santosh Kumar Sharma, SR, Surgery. As per MLC, the patient was having injuries over the scalp, left eyebrow, over the chest. He exhibited the said MLC as Ex. PW2/A. The said witness was not crossexamined by any of the respondents despite grant of opportunity.
Sandeep Vs. Praveen & Ors. Page 17 of 33MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018
33. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. Moreover, the respondents more particularly insurance companies have failed to lead any evidence in rebuttal in order to create any doubt on the authenticity of the medical bills of the injured as available on record. The petitioner has filed original medical bills total amounting to Rs. 2.89,892/. Accordingly, a sum of Rs. 2,89,892/ is awarded to the petitioner under this head.
LOSS OF INCOME
34. Injured namely Sh. Sandeep (PW1) has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was doing business of poultry farming and was earning Rs. 2 lacs per annum from the said business. He has relied upon ITRs for Assessment Years 200405, 200506 and 2006 07 as Ex. PW1/G(colly). During his crossexamination on behalf of respondent no. 2, he denied the suggestion that he had not suffered any loss in his business due to the injuries sustained in the accident. During his cross examination on behalf of respondent no. 5, he deposed that he was matriculate. He further deposed that the last income tax return filed by him, was for the Assessment Year 200607(Financial Year 200506). He also deposed that he did not have any ITR except those which were filed on record by him. He denied the suggestion that his income was not Rs. 2 lacs per year as stated in his affidavit. Respondent no. 1 did not crossexamine this witness being already exparte. Respondents no. 3 & 4 did not crossexamine this witness at all on this aspect.
35. PW3 Sh. Pradeep Dua, Incharge(Casualty), Jaipur Golden Hospital, Delhi has produced the treatment record of patient Sandeep. He exhibited the discharge summary sheet dated 27.07.07 as Ex. PW3/A. He also testified that final bill already [Ex. PW1/F(F24 & F25)] was issued by their hospital. During his crossexamination on behalf of respondent no. 5, he Sandeep Vs. Praveen & Ors. Page 18 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 deposed that the documents F1, F2, F4, F6, F20, F21 and F23 were the advance receipts and the adjustment details of the same were given in F24. He further deposed that he could not say whether the petitioner was having any mediclaim policy or the payment of the bills was paid by the petitioner. Respondent no. 1 did not crossexamine this witness being already exparte. Respondents no. 3 & 4 did not crossexamine this witness at all on this aspect.
36. The aforesaid medical treatment record i.e. Disharge Summary Sheet (Ex. PW3/A) of petitioner/injured, as brought on record by PW3, would show that the injured had suffered head injury with fracture nasoethmoid bone with injury left eye. The said treatment record would also reveal that injured was admitted in Jaipur Golden Hospital on 18.07.07 and was discharged on 27.07.07. He has also filed treatment record for the subsequent period (which is part of Ex. PW1/D colly). Same shows that his treatment continued till October 2011. Thus, the treatment record of injured as brought on record, would clearly show that his treatment continued for considerable period of more than 4 years after the accident in question. No doubt, the petitioner is shown to have received the said treatment from different hospitals sometimes as OPD Patient and on other occasions as Indoor Patient. After taking into consideration the nature of injuries sustained by petitioner and the fact that the treatment of injured continued for more than 4 years, it is presumed that he would not have been able to work at all atleast for a period of 18 months or so.
37. During the course of arguments, counsel for injured vehemently argued that injured was having annual income of Rs. 2,00,000/ at the time of accident. For said purpose, he relied upon ITR for the Assessment Year 2004 05, 200506 and 200607 (Ex. PW1/G colly) filed on record. He, therefore, urged that appropriate amount of compensation may be awarded on the basis of said ITRs. On the other hand, counsels for the respondents vehemently argued that the petitioner has failed to lead any cogent evidence to prove his Sandeep Vs. Praveen & Ors. Page 19 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 actual income at the time of accident and thus, his income may be taken as per Minimum Wages Act applicable during the relevant period.
38. The aforesaid argument raised on behalf of insurance companies, is not tenable in the eyes of law for the simple reason that the petitioner was an income tax assessee and was filing ITRs since much prior to the date of accident. The perusal of ITR for the Assessment Year 200607 (which is part of Ex. PW1/G colly) as available on record, would show that same was filed by injured with Income Tax Department on 31.03.07 i.e. about 3 ½ months before the date of accident which occurred on 18.07.07. Hence, there is no reason to discard the said document in order to calculate the loss of income suffered by injured.
39. After taking into consideration the ITR of injured for the Assessment Year 200607(corresponding to the Financial Year 200506), the net annual income after deducting the tax amount of Rs. 1,045/as paid to the Income Tax Department, comes out to Rs. 1,09,205/(Rs. 1,10,250 Rs. 1,045/). In this manner, his monthly income comes out to Rs. 9,100/(rounded off) at the time of accident in question. Thus, a sum of Rs. 1,63,800/ (Rs. 9,100/ x 18) is awarded in favour of petitioner under this head.
PAIN AND SUFFERING
40. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally Sandeep Vs. Praveen & Ors. Page 20 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
41. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries on his head and left eye. He has also sustained permanent disability to the extent of 40% in relation to his left eye and 10% in relation to ortho. Apart from the fact that the relevant portion of his testimony in this regard, has gone unchallanged and unrebutted from the side of respondents, his ocular testimony is duly corroborated by his medical treatment record (Ex. PW1/D colly) as well as Disability Certificate (Ex. PW1/H) filed by him. Discharge summary (Ex. PW3/A) of Jaipur Golden Hospital, would show that he had sustained head injury with fracture nasoethmoid bone with injury in left eye. Same would also show that Debriment and suturing was done on 18.07.07. Not only this, the discharge summary of Shankara Netralaya Hospital, Chennai, would further show that he had sustained orbital floor fracture in left eye which was repaired with medpore implant. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs. 1,00,000/ towards pain and sufferings to the petitioner. (Reliance placed on "Oriental Insurance Co Ltd Vs. Manjeet Singh & Ors", bearing MAC.APP. No. 359/2009 decided on 10.04.2017 by Hon'ble Delhi High Court).
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
42. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered grievous injuries due to the accident in question. Discharge summary (Ex. PW3/A) of Jaipur Golden Hospital, would show that he had sustained head injury with fracture Sandeep Vs. Praveen & Ors. Page 21 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 nasoethmoid bone with injury in left eye. Same would also show that Debriment and suturing was done on 18.07.07. Not only this, the discharge summary of Shankara Netralaya Hospital, Chennai, would further show that he had sustained orbital floor fracture in left eye which was repaired with medpore implant. He has also sustained permanent disability to the extent of 40% in relation to his left eye and 10% in relation to ortho which is duly established from the Disability Certificate (Ex. PW1/H) issued by General Hospital, Sonepat. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 1,00,000/ towards loss of general amenities and enjoyment of life to the petitioner. (Reliance placed on "Oriental Insurance Co Ltd Vs. Manjeet Singh & Ors", bearing MAC.APP. No. 359/2009 decided on 10.04.2017 by Hon'ble Delhi High Court).
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
43. Although, PW1 has deposed in his evidence by way of affidavit (Ex. PW1/X) that he had spent considerable amount on conveyance and special diet but he has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that he had sustained grievous injuries due to the accident in question. Discharge summary (Ex. PW3/A) of Jaipur Golden Hospital, would show that he had sustained head injury with fracture nasoethmoid bone with injury in left eye. Same would also show that Debriment and suturing was done on 18.07.07. Not only this, the discharge summary of Shankara Netralaya Hospital, Chennai, would further show that he had sustained orbital floor fracture in left eye which was repaired with medpore implant. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as Sandeep Vs. Praveen & Ors. Page 22 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 5,000/ for conveyance charges and a sum of Rs. 10,000/ each for special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
44. As already stated above, the petitioner is shown to have sustained permanent disability to the extent of 40% in relation to his left eye and 10% in relation to ortho. Same is quite evident from Disability Certificate dated 17.10.2007 (Ex. PW1/H) of Medical Board of General Hospital, Sonepat. The petitioner has also testified in this regard while examining himself as PW1 during inquiry. He has not been crossexamined by the respondents on this aspect.
45. As per the testimony of PW4 Dr. S.P. Sharma, who was one of the members of Disability Board constituted at Civil Hospital, Sonepat, Haryana, the petitioner was found to have suffered 40% permanent disability in relation to his left eye as a result of Phthisis Bulbi and 10% disability on account of Talipus Equinovarus and same was permanent and non progressive in nature. During his crossexamination on behalf of respondents no. 2 & 5, he deposed that at the time of issuing Disability Certificate(Ex. PW1/H), their Board did not go through any treatment record of the patient. He further deposed that he was an Orthopedic Surgeon and signed on the Disability Certificate. He had not examined the patient particularly from the side of eye, as he was Orthopedic Surgeon. He had assessed the disability of 10% from orthopedic side on the basis of clinical assessment and assessed on the basis of guidelines issued by Ministry of Health, Central Government. He Sandeep Vs. Praveen & Ors. Page 23 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 also deposed that if the disability was calculated in respect of the whole body, then it would be 46%. He further deposed that since the petitioner had stated that he was running a poultry farm owned by him with the assistance of his employees, then his earning capacity could be reduced to the extent of 15% 16% only. He admitted that in Haryana State, if the disability is more than 70% then such person would be entitled to fixed pension. He further admitted that the disability certificate was issued only for the purpose of pension. He denied the suggestion that the petitioner would not get the pension on the basis of said certificate also. He deposed that he had not brought the circular issued by Haryana Government which allows pension to the person suffering from disability of 70% or more. He could not tell as to whether the disability occurred, was due to the accidental injuries or otherwise as he had not seen the treatment record of the petitioner. He further deposed that it might be possible that the disability might had occurred due to some injuries suffered prior to the accident in question. He admitted that in case of trauma/accidental injuries, minimum 6 months were required before issuing the disability certificate. Respondent no. 1 did not crossexamine this witness, he being already exparte. Respondents no. 3 & 4 did not crossexamine this witness despite grant of opportunity.
46. It was vehemently argued on behalf of respondents no. 2 & 5 that the ocular testimony of PW4 as well as the Disability Certificate (Ex. PW1/H) should not be taken into consideration and no amount should be awarded under this head. For this purpose, their respective counsels referred to relevant portion of the testimony of PW4 who admitted during cross examination that in case of accidental injuries, 6 month's minimum time is required before issuing the Disability Certificate and also that he could not tell as to whether the said disability occurred due to accidental injuries or otherwise. They further pointed out that accident in question occurred on 17.07.07 and the petitioner got his disability assessed on 12.09.07 i.e. just after two months from the date of accident. Per contra, counsel for injured Sandeep Vs. Praveen & Ors. Page 24 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 vehemently argued that the disability assessed by Disability Board, is only in respect of injuries sustained by him due to accident in question. He also submitted that Disability Certificate has been issued by Disability Board of Government Hospital, Sonepat, which carries a presumption of its authenticity. He therefore urged that future loss of income based on the testimony of PW4 coupled with Disability Certificate should be awarded in favour of petitioner.
47. No doubt, the exact permanent disability if any in respect of person having sustained injuries in motor vehicular accident, can be properly assessed after 6 months from the date of accident as per testimony of PW4 but it does not lead to any inference that disability of such person can not be assessed before the expiry of 6 months from the date of accident. This is more so when such person is found to have sustained serious injury i.e. orbital floor fracture in left eye apart from fracture in other part of his body. What is relevant to note is that none of the respondents preferred to produce any medical expert during the course of inquiry, in order to rebut the testimony of PW4 or to create any doubt on the authenticity and genuineness of Disability Certificate (Ex. PW1/H). In the absence thereof, I do not find any reason not to consider the said Disabililty Certificate or to discard the testimony of PW4. It can not be overlooked that the aforesaid disability certificate is issued by three members Disability Board of Government Hospital, Sonepat.
48. The disability certificate (Ex. PW1/H) of injured would reveal that he had suffered 40% permanent disability in relation to his left eye as a result of Phthisis Bulbi and 10% disability on account of Talipus Equinovarus. He was doing running his poultry farm prior to the accident in question. Thus, it would not be possible for him to engage himself in the said avocation or in any kind of employment requiring him to travel or involving field work on account of 40% permanent disability in left eye as a result of Phthsis Bulbi and 10% permanent disability on account of Talipus Equinovarus or even to do his day to day activities like a normal person. Hence, his functional disability is taken Sandeep Vs. Praveen & Ors. Page 25 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 as 30% in relation to whole body.
49. In copy of PAN Card of petitioner, his date of birth is mentioned as 10.12.1985. The date of accident is 18.07.2007. In view of said document, his age was more than 21 years as on the date of accident. Hence, the appropriate multiplier would be 18 in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
50. The notional monthly income of petitioner has been taken as Rs. 9,100/per month as discussed above. Thus, the loss of monthly future income would be Rs. 2,730/ (Rs. 9,100/ x 30/100 ). The total loss of future income would be Rs. 8,25,552/ (Rs. 2,730/ x 140/100 x 12 x 18). Thus, a sum of Rs. 8,25,552/ is awarded in favour of petitioner under this head. (Reliance placed on decisions of Hon'ble Delhi High Court in "National Insurance Co. Ltd. Vs. Hari Om Const. & Ors.", MAC APP No. 464/2011 decided on 03.11.17 and "ICICI Lombard General Insurance Company Limited Vs. Mahesh Kumar & Ors.", MAC APP No. 843/2011, decided on 03.11.17).
LOSS OF MARRIAGE PROSPECTS
51. Counsel for petitioner argued that the chances of marriage prospect of petitioner have decreased considerably due to his permanent physical impairment. He therefore, urged that reasonable amount of compensation should be awarded to him under this head. Per contra, counsel for insurance companies vehemently argued that there is no evidence led on this aspect during the course of inquiry and thus, no amount of compensation should be awarded under this head.
Sandeep Vs. Praveen & Ors. Page 26 of 33MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018
52. After considering the rival submissions made on behalf of both the sides, I find substance in the submissions raised on behalf of petitioner/claimant. In view of permanent physical impairment to the extent of 50% sustained by the injured, his chances of getting married have definitely been considerably reduced. He was aged somewhere about 21 years at the time of accident. It has been established from the testimony of PW4 Dr. S.P. Sharma that disability suffered by the injured is likely to continue throughout his life. Thus, compensation under the head of loss of marriage prospects also deserves to be awarded in favour of petitioner. Hence, notional sum of Rs. 1,00,000/ is awarded to him under this head. (Reliance placed on "National Insurance Co Ltd. Vs. Baby Heena & Ors." MAC APP No. 345/11 decided on 14.03.16 by Hon'ble Delhi High Court).
Thus, t he total compensation is assessed as under:
1. Medical Expenses Rs. 2,89,892/
2. Loss of studies Rs. 1,63,800/
3. Pain and suffering Rs. 1,00,000/
4. Loss of general amenities and Rs. 1,00,000/ enjoyment of life
5. Conveyance, special diet and Rs. 25,000/ attendant charges
6. Loss of future income Rs. 8,25,552/
7. Loss of marriage prospects Rs. 1,00,000/ Total Rs. 16,04,244/ Rounded off to Rs. 16,04,300/
53. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company/R5 sought to avoid its liability on the ground that there was no valid and effective driving licence in favour of R3, as also for the reason that there was no valid Permit in respect of Dumper No. HR38F7544 Sandeep Vs. Praveen & Ors. Page 27 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 as on the date of accident. In support of this contention, he heavily relied upon the testimonies of R5W1 Sh. Sanjay Mathur, the official from the office of RTA, Agra, R5W2 Sh. Ranjeet Singh, the official from the office of ARTO, Mathura(UP) and R5W5 Sh. Nilesh Bairwa, Senior Executive, Bajaj Allianz Insurance Company Limited.
54. Before appreciating the aforesaid contentions, it would be relevant to discuss the testimonies of relevant witnesses examined on the point in issue. R4W1 namely Sh. Praveen Garg is the registered owner/insured of Dumper No. HR38F7544. He deposed in his evidence by way of affidavit(Ex. R4W1/A) that his driver i.e. respondent no. 3 was holding valid DL No. 0 263/MTR/96 issued on 27.12.1996 having validity till 31.08.10 and the said vehicle was duly insured with respondent no. 5 vide policy having validity from 23.06.07 to 22.06.08. He also deposed that there was valid permit no. 2803 having validty from 23.11.06 to 22.11.07 in respect of said vehicle. He exhibited copy of DL in favour of R3, copy of insurance policy and copy of permit in respect of said vehicle as Mark A, Ex. R4W1/1 and Ex. R4W1/2 respectively. During his crossexamination on behalf of petitioner, he deposed that there was no defect in Dumper No. HR38F7544 before the accident. He has not been crossexamined on behalf of respondents no. 2 & 5.
55. R5W1 deposed that report(copy of which was already exhibited as Ex. R3W1), issued in Form No. 54, was similar to the copy provided to him by his office. In response to court question, he clarified that said document was bearing seal number of Licencing Authority, Mathura as well as the official stamp of the said Licencing Authority. But, he could not identify the signature appearing on the said report. He explained that Sh. Om Prakash, Inspector was the Licencing Adhikari at that time but he never worked with him. He deposed on the basis of his own opinion that the signature appearing on said document, was matching with that of Inspector Om Prakash. It is relevant to note that crossexamination of said witness was deferred on 15.03.13, Sandeep Vs. Praveen & Ors. Page 28 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 whereafter, he did not enter into witness box and his testimony remained incomplete. Hence, I am of the opinion that the testimony of said witness can not be looked into once it could not be purified by an ordeal of the cross examination.
56. R5W2 produced Investigation Report (Ex. R5W2/B) with regard to DL No. O263(MTR96). During his crossexamination on behalf of petitioner, he admitted that copy of the record submitted by him, was lying on the Court record. He denied the suggestion that he had filed the false and fabricated report. Respondent no. 2 did not crossexamine this witness despite grant of opportunity. Respondents no. 1, 3 & 4 also did not crossexamine this witness.
57. R5W5 deposed by way of affidavit (Ex. R5W5/A) that as per report of the Investigator of his insurance company, DL No. O263(MTR96) was not issued by the office of Licencing Authority, Mathura. He further deposed that the respondent no. 3 was not holding any valid and effective DL to drive Dumper No. HR38F7544, which constituted breach in the terms and conditions of the insurance policy on the part of insured. He relied upon copy of Investigation Report of the Investigator of Insurance Company as Mark A. During his crossexamination, he deposed that he himself did not personally verify the said DL and he was deposing on the basis of official record maintained by the company. He has not been crossexamined at all on behalf of respondents no. 3 & 4.
58. As is quite evident from the aforesaid discussion that the DL (copy of which is Mark A), produced by respondent no. 3 namely Sahab Singh has been found to be fake, as per record of Transport Authority produced by R5W2. Apart from the fact that the respondents no. 3 & 4 could not impeach the testimony of R5W2 or the record produced by said witness during the course of inquiry, they also failed to produce any other valid DL in favour of respondent no. 3 on record. Hence, I find substance in the submission made Sandeep Vs. Praveen & Ors. Page 29 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 on behalf of insurance company that had there been any valid DL in favour of respondent no. 3 to drive the type of vehicle like the present one, copy thereof would have been filed by him on record during the course of inquiry, which is not the case herein.
59 Although, counsel for insurance company/R5 also argued that there was no valid permit in respect of offending vehicle, but said plea could not be substantiated from record on its behalf during the course of inquiry. The reason is quite obvious that insured i.e. R4 has produced copy of National Permit (Mark C) in respect of aforesaid Dumper, which would clearly show that it was having valid permit for the State of Delhi and the requisite fee of Rs. 3,000/ for the period from 23.11.06 to 22.11.07 was deposited in the office of RTA, Bahadurgarh, Haryana. Hence, the said plea in my view remains unsubstantiated.
60. Likewise R2 i.e. insurer of Tempo No. HR69A0414 also failed to establish its plea regarding fundamental breach in the terms and conditions of insurance policy on the part of insured i.e. R1 as it did not lead any evidence in order to show that there was no valid fitness in respect of said vehicle as on the date of accident. Moreover, even if it be presumed for the sake of arguments that the said vehicle was not having any Fitness Certificate at the time of accident, same did not constitute any fundamental breach within the meaning of provision contained in Section 149(2) M.V. Act. (Reliance placed on decisions of Hon'ble Delhi High Court in the matters "The New India Assurance Company Limited Vs. Kumud Devi & Ors", MAC APP. No. 520/2010, decided on 07.08.2012 and "DTC & Ors. Vs. National Insurance Company Limited & Anr.", MAC APP No. 361/10 decided on 23.04.2012).
61. In view of the aforesaid discusssion, it is hereby held that since there was composite negligence on the part of drivers of tempo no. HR69A 0414 and Dumper No. HR38F7544, their respective insurers i.e. New India Sandeep Vs. Praveen & Ors. Page 30 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 Assurance Company Limited/R2 and Bajaj Allianz General Insurance Company Limited/R5 shall deposit the compensation amount as determined hereinabove in equal proportions. However, the respondent no. 5 is granted recovery rights to recover its share of awarded amount from insured i.e. R4. (Reliance placed on decision dated 26.09.2017 in FAO no.7555/2015 in the matter titled as "MS Middle High School and another Vs. Usha and others" by Hon'ble High Court of Punjab and Haryana and as upheld by Hon'ble Apex Court in SLP no.31406/2017 titled as "MS Middle High School Vs. HDFC ERGO General Insurance Company Ltd. & others" decided on 22.11.2017). Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
62. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 16,04,300/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 25.01.08 till the date of its realization(except for the period between 09.04.2010 till 13.05.2011) (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
63. Statement of petitioner in terms of Clause 26 MCTAP was recorded on 11.08.2017. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the award amount, a sum of Rs. 4,50,000/ (Rupees Four Lacs and Fifty Thousand Only)(since a sum of Rs. 2,89,892/ has already been incurred by the injured on his treatment) shall be immediately released to the petitioner through his saving bank account no. 358502010052485 with Union Bank of India, Bhagwan Mahavir Marg, Rohtak Road, Sonepat, Haryana, Sandeep Vs. Praveen & Ors. Page 31 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 having IFSC Code UBIN0535851 and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 50,000/ each for a period of six months, twelve months, eighteen months and so on and so forth.
64. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(i) The interest on the fixed deposits be paid monthly to the claimant.
(ii) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimant/petitioner. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant/petitioner.
(iii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
(iv) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victim.
(vi) Half yearly statement of account be filed by the Bank before the Tribunal.
65. During the course of hearing final arguments, claimant was asked as to whether he was entitled to exemption from deduction of TDS or not. He stated on oath that he was entitled to exemption from deduction of TDS and also furnished Form No. 15G on record.
66. Respondents no. 2 & 5, being insurers of offending vehicles are directed to deposit the awarded amount with SBI, Rohini Courts branch within 30 days as per above order, failing which they shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the amount of Rs. 4,50,000/ in the aforesaid saving bank account mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the Sandeep Vs. Praveen & Ors. Page 32 of 33 MACP No.5287/16; FIR No. 227/07; PS. Alipur DOD: 20.08.2018 award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimant. Copy of this award be given dasti alongwith Form no. 15G furnished by claimant (after retaining its copy on record) to counsels for both the insurance companies. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form IVB and Form V in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 20.08.2018 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Sandeep Vs. Praveen & Ors. Page 33 of 33