Delhi District Court
Sh. Hem Chand Tiwari vs IffcoTokio General Insurance Co. Ltd. ... on 31 May, 2012
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENTS CLAIMS
TRIBUNALII, DWARKA COURTS, NEW DELHI
MACT NO. 174/12/06
IN THE MATTER OF :
1. Sh. Hem Chand Tiwari
S/o Sh. Kailash Chand Tiwari
R/o LI, House No. 851, Gali No. 14
Sangam Vihar, New Delhi110062
......Petitioner
Versus
1. IFFCOTokio General Insurance Co. Ltd. (Insurer)
FAI Building, 10, Shaheed Jeet Singh Marg
New Delhi
(Through its Divisional Manager)
2. M/s. Phool Tas Tamper Pvt. Ltd. (Owner)
Gel Plaza, 2nd Floor, W14, West Patel Nagar
Main Road, New Delhi.
(Through its Partner/Proprietor/Manager)
3. Sh. Rajesh Raut (Driver)
S/o Sh. Lalit Raut
R/o 12/160, Arjun Nagar
New Delhi110010
(Also Through employer M/s. Phool
Tas Tamper Pvt. Ltd.)
.........Respondents
Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 1 of 14
FILED ON : 28.07.2006
RESERVED ON : 17.05.2012
DECIDED ON : 31.05.2012
: J U D G M E N T :
1. This is a claim petition filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Respondent no. 1 is the Insurer, Respondent no. 2 is the owner and Respondent no. 3 is the driver of the offending vehicle.
3. It is stated in the claim petition that on 02.03.06 at about 10.15 a.m. Tata Indica Taxi Cab bearing registration no. DL1YA1849 was at its way from Sangam Vihar to take a pick up from Palam Vihar and was being driven by petitioner himself.
4. It is stated that the car was being driven at a slow speed and on its correct side of the road.
5. It is further stated that when the car reached in front of Pushpanjali Farm, Bijwasan, suddenly a blue coloured Skoda car bearing no. DL4CR8039 being driven rashly, recklessly and negligently by respondent no.3 came from opposite side and entered in the wrong side of the road and hit the car of the petitioner from its front bumper causing extensive damages to the entire front portion of Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 2 of 14 the car of the petitioner.
6. It is stated that because of this forceful impact, petitioner got entangled and was pressed between the steering and driving seat of the car and received severe injuries on his person.
7. It is stated that the accident was caused solely due to negligence of respondent no. 3. It is stated that petitioner has lost Rs. 20,000/ per month which he was earning by employing the car with a Call Centre and the taxi/cab remained off the road upto 24.05.06 for almost three months and petitioner claimed a compensation of Rs. 60,000/ towards loss of earnings.
8. Petitioner also claimed compensation for cost of repair, depreciation of the value of the car due to this accident and claimed a total compensation of Rs. 2,78,786/ with interest @ 15% p.a. from the date of filing of the claim petition till its payment.
9. Case was contested only by insurance company who stated that the accident had taken place due to negligence of petitioner and therefore no compensation be given to the petitioner.
10. It was further stated that in case contributory negligence of petitioner in driving Tata Indica Car bearing registration no. DL1YA1849 and negligence driver of vehicle no. DL4CR8039 Skoda is established in that event, compensation be proportionately reduced in the ratio of negligence.
Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 3 of 14
11. Rest of the contents of the claim petition were denied but it was admitted that the answering respondent had issued an insurance cover bearing no. 32418117 which was valid from 30.10.05 to 29.10.06 in favour of respondent no. 2 in respect of vehicle no. DL4CR8039 Skoda car.
12. From the pleadings of parties, following issues were framed:
1) Whether petitioner had sustained injuries on his person in an accident caused due to negligent driving of the vehicle bearing registration no. DL4C/R8039, being driven by respondent no. 3, owned by respondent no. 2 and insured with respondent no. 1 on 02.03.2006? OPP
2) In case, issue no. 1 is decided in affirmative then to what amount of compensation, petitioner is entitled and from whom? OPP
3) Relief.
13. It appears that by oversight it was mentioned in the issues that petitioner has suffered injuries on his person whereas the claim petition was only for damage to the property.
14. Record would show that both the parties have proceeded with the trial of the claim petition treating the same as a claim petition for compensation for damage to the property.
15. Therefore, no prejudice will be suffered by any party if issue no. 1 is recast as under: Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 4 of 14
1. Whether vehicle no. DL1YA1849 was damaged in an accident caused due to negligent driving of the vehicle bearing registration no. DL4CR8039 being driven by respondent no. 3, owned by respondent no. 2 and insured with respondent no. 1 on 02.03.06.
16. Only petitioner entered in the witness box as PW1 to prove his case.
17. Similar averments were made in his evidence by way of affidavit as were already made in the claim petition.
18. Petitioner exhibited documents as Ex. PW1/A to O which are certified copies of charge sheet, FIR, statements recorded by the police during investigation, mechanical inspection report of offending vehicle as well as the vehicle of petitioner damaged in the accident, site plan, insurance cover note, Registration Certificate of offending vehicle, seizure memo of driving license of respondent no. 3, order passed by Ld. Judge in Lok Adalat where respondent no. 3 had pleaded guilty to the offence.
19. In cross examination, petitioner stated that he has not taken any claim from his insurance company and denied suggestions contrary to his case.
20. Insurance company did not prefer to lead any evidence and matter was kept for final arguments.
21. However, at a subsequent stage an application was filed Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 5 of 14 by the petitioner for additional evidence.
22. Said application was allowed and the petitioner proved tax invoice of Mirkana Engineering Pvt. Ltd. dated 24.05.06 for a sum of Rs. 1,45,280/ as Ex. PW1/Z, receipt dated 27.03.06 for a sum of Rs. 40,000/, receipt dated 19.05.06 for a sum of Rs. 90,000/ and receipt dated 22.05.06 for a sum of Rs. 15,420/ as Ex. PW1/Z1Z3 respectively.
23. Again a question was put to the petitioner why he had not taken compensation from his insurer for the damages suffered by the vehicle in the accident to which he replied that he did not take compensation from his insurer to avoid loss of No Claim Bonus in the next year.
24. He denied a suggestion that he had taken a compensation for the repair of vehicle from his insurer also and suggestions contrary to his case were denied.
25. During final arguments Sh. Arun Shrivastava, learned Counsel for petitioner argued that driver of offending vehicle had pleaded guilty. Therefore rashness and negligence is proved in the accident. He further stated that claim petition pertaining to injuries suffered by petitioner in the accident in question was already decided in his favour and present case is only for damages to the property. He stated that petitioner has spent a sum of Rs. 1,45,000/ on the repair Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 6 of 14 of vehicle. Additionally, he argued that incidental loss of income is also part of damages and as vehicle was commercial incidental losses be also awarded in his favour. For this he relied on judgment of Hon'ble High Court of Andhra Pradesh reported as 2005 ACJ 1802.
26. As against this, arguments addressed by Sh. Ashutosh, learned counsel for insurance company were that Ex. PW1/Z1 is only a photocopy and is not issued by Tata Motors. However, he had not made any serious challenge vis a vis Ex. PW1/2 and 3.
27. He further argued that petitioner has not shown that his vehicle was a commercial vehicle as petitioner has not produced permit etc. Therefore, no incidental losses be granted in his favour.
28. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1
29. Burden of proving this issue is on the petitioner.
30. For succeeding in a claim petition under Motor Vehicles Act, it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
31. This is sine qua non for getting the relief.
32. Neither the driver of offending vehicle filed written statement challenging pleadings of petitioner that the accident was caused by rash and negligent driving by respondent no. 1 nor cross Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 7 of 14 examined the petitioner on the allegations of rash and negligent driving attributed to him nor entered in the witness box to prove his innocence.
33. On the contrary he pleaded guilty before Ld. Judge, Lok Adalat.
34. Once driver of an offending vehicle has pleaded guilty before criminal court, then in a claim petition under Section 166 of Motor Vehicle Act it has to be presumed that the driver was indeed rash and negligent in driving the offending vehicle. Relying upon Kanshi Ram Verma Vs Union of India and others, 2011 (121) DRJ 262, issue of negligence is decided against the driver of the offending vehicle.
35. Therefore, applying the principles of res ipsa locquitor, this issue is decided in favour of petitioner and against the respondents.
ISSUE NO. 2:
36. Under Section 165 of Motor Vehicles Act, compensation can be granted for damages to any property of a third party in respect of accidents arising out of the use of motor vehicle.
37. Petitioner has stated that he has already received compensation for injuries suffered by him in the accident in question and this claim petition is solely for damages suffered by his car in the Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 8 of 14 accident.
38. Petitioner had sought to examine witness from Mirkana Engineering Pvt. Ltd. from where he had got his vehicle repaired.
39. Notice sent to the said witness was not served when the report of Process Server was that the summoned witness has left the premises and now MGF Hyundai is existing at that address since 2010.
40. In view of closure of workshop from where petitioner had got his vehicle repaired, he sought permission and filed his additional evidence where he proved tax invoice for a sum of Rs. 1,45,286/ as Ex. PW1/Z.
41. The payments for the repair of vehicle were proved vide receipts Ex. PW1/Z1Z3 which are dated 27.03.05, 19.05.06, 22.05.06 for a sum of Rs. 40,000/, Rs. 90,000/ and Rs. 15,420/ respectively.
42. Total of all the three receipts is matching with the tax invoice raised by Mirkana Engineering Pvt. Ltd.
43. The mere fact that terms and conditions are not printed on the back of Ex. PW1/Z1 as is the case with Ex. PW1/Z2 and Z3 or name of Tata Motors is not mentioned on that will not make any difference because the receipt is bearing rubber stamp of Mirkana Engineering Pvt. Ltd. and is also signed by its authorised signatory. Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 9 of 14
44. Moreover, total of these three receipts is matching with the tax invoice which shows that the petitioner would have made payment of Rs. 1,45,420/ to the Mirkana Engineering Pvt. Ltd. before release of his vehicle after repairs.
45. Therefore, Petitioner is granted a compensation of Rs. 1,45,420/ towards damages suffered by the vehicle and spent by petitioner for its repair.
46. Besides this, petitioner has also proved as Ex. PW1/O which is receipt for a sum of Rs. 1000/ given to Crane Services, Kapashera issued by M/s. City Crane. Petitioner is also given this compensation for towing charges by the crane.
47. Driving License of the petitioner was for LMV (Commercial). Petitioner has relied on the judgment of Hon'ble High Court of Andhra Pradesh in the case of G. Md. Masoom v. S.K. Khader Vali and Anr. where in para 10, it is held as under: "In all the aforesaid decisions, it is clearly stated that the owner is entitled to claim damages for the vehicle involved in the accident. The civil court has no jurisdiction to award compensation after the amended provisions of Sections 165 and 166 of the Act which have come into force after Motor Vehicles Act of 1988 as there is express bar of entertaining by civil court and the civil court cannot entertain a claim in respect of damage caused to the vehicle involved in the accident. The owner has been Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 10 of 14 conferred with a right of presenting an application for compensation under Section 166 of the Act in respect of damages. The only thing that has to be decided is whether computation can be made in respect of business loss, which is part of the policy of insurance and whether the Tribunal has got jurisdiction under the head - damages or compensation. It is clear from the principles laid down by the decisions rendered by the English courts that the loss occasioned due to nonavailability of the vehicle under repair can be awarded during the period of repair. It is not stated in those decisions that the entire loss of business income can be entertained or awarded. What is contemplated under the law is that the loss of income sustained during the period of vehicle under repair is an incidental loss, which resulted due to damage to the vehicle, and it can be awarded and the Tribunal alone can entertain such a thing. Section 166 mentioned about the application to be made for compensation. Section 165 says that compensation can be claimed for damage to any property of a third party so arising out of the use of motor vehicle. Does it cover the loss of incidental income of the owner? It must be held that loss of incidental income due to non availability of vehicle, which is under repairs is covered. That has to be taken into consideration while awarding compensation. It cannot be stated that the incidental loss sustained by the owner due to damage to the vehicle and due to nonavailability of the vehicle cannot be taken into consideration. The court has to take into consideration about the ousting of civil courts jurisdiction for claiming compensation Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 11 of 14 in respect of damage to any property. The incidental loss of income has to be taken into consideration while awarding compensation for damage to property. The single Judge of this court has rightly observed that there cannot be two forums for claiming compensation. The incidental loss of income is a part of damages to be awarded by way of compensation. The same view has been taken by the English Courts. The method that has to be adopted is to calculate the loss of income due to nonavailability of the vehicle. If the vehicle is insured with the insurance company, it is liable to pay damages which inclusive of incidental loss of income due to non availability of the vehicle. The incidental loss of income differs from business loss. The business loss has to be arrived at after taking into consideration of nonavailability of the vehicle on the particular period and its availability after repairs. We are of considered view that just compensation has to be arrived at by calculating the compensation towards damages including incidental loss occasioned during the period of nonavailability of the vehicle. On a consideration of the entire law, we are of the view that the owner of the vehicle is entitled to claim incidental loss of income under the head damage caused to the vehicle before the Tribunal and the civil court has no jurisdiction. We also state that the insurance company is liable to pay compensation towards damage caused to the vehicle, which includes the incidental loss of income being part by business loss."
48. Petitioner has stated that he was earning Rs. 20,000/ per Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 12 of 14 month by using the vehicle as a taxi. He has claimed a compensation of Rs. 60,000/ for loss of wages for the period vehicle remained under repairs in the workshop. However, in absence of any evidence of earning of Rs. 20,000/ per month by the petitioner, reliance can be placed on minimum rates of wages in Delhi which are paid to a skilled worker as on the date of accident which were Rs. 3,207/.
49. Relying on this rate, petitioner is granted a compensation of Rs. 9,621/ for Loss of Wages for a period of three months when the vehicle had remained under repairs.
ISSUE NO.3: RELIEF
50. Resultantly, total compensation payable to petitioner would be Rs. 1,56,041/ with interest @ 9% p.a. from the date of filing of this claim petition which is 28.07.2006 till its deposit.
51. For granting interest @ 9% p.a. reliance can be placed on the judgment of Hon'ble High Court of Delhi in Dhaneshwari & Anr. v. Tejeshwar Singh & Ors. MAC APP. 997/11 dated 19.03.12 where in para 72 and 73 the Hon'ble High Court has held as under:
72. In Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. (2011) 11 SCC 269, the interest granted by the National Commission @ 9% was upheld by the Supreme Court. In Sant Singh v. Sukhdev Singh (2011) 11 SCC 632, interest @ 9% per annum was awarded by the Hon'ble Supreme Court. In Raj Kumar v. Ajay Kumar and Anr. 2011 Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 13 of 14 (1) SCC 343, the interest @ 9% p.a. awarded by the Claims Tribunal was approved. In Arvind Kr. Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254, interest @ 9% p.a. was awarded on the enhanced amount of compensation.
73. In these circumstances, I would also follow the Bank rate of interest and would award interest @ 9% p.a. on the enhanced amount.
52. Insurance company has not proved any statutory defence available to it under M.V. Act. Therefore, the entire compensation would be payable by insurance company within 30 days from today under intimation to the petitioner by registered post.
53. Copy of award be given dasti to all the parties.
54. File be consigned to record room.
Announced in the Open Court.
On the 31st day of May, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
Hem Chand Tiwari v. IFFCO Tokio Gen. Ins. Co. Page 14 of 14