Delhi District Court
Baby Mishita Dhupar D/O Late Sh.Rajeev ... vs Sh.Sushil Kumar S/O Sh.Dadey Singh on 16 August, 2011
1/12
IN THE COURT OF SH. S. S. MALHOTRA, ADDL. DISTRICT
JUDGE/POMACT/EAST/KARKARDOOMA COURTS/ DELHI
MACT : 1127/08(old) & 170/10 (new)
Date of filing of petition : 04.07.2008
Date of transfer of petition to the Court : 05.02.2010
Date of arguments : 16.7.2011
Date of award : 16.8.2011
Baby Mishita Dhupar d/o late Sh.Rajeev Kumar,
(Being minor through her mother and natural
guardian Smt.Shilpi Dhupar r/o 48,Shivaji Gali
Pandit Park, Krishna Nagar,
Delhi51 .....Petitioner
Versus
1 Sh.Sushil Kumar s/o Sh.Dadey Singh
r/o Viveka Nand Nagar, Ghaziabad, U.P
2nd Add:
C/o Sh.Harbir Singh s/o Sh.Ram Swaroop
New Janta Transport Saharanpur Road,
Yamuna Nagar, Haryana
(Driver of vehicle no.HR58 A4610)
2 Sh.Harbir Singh s/o Sh.Ram Swaroop
r/o New Janta Transport Saharanpur Road,
Yamuna Nagar, Haryana
Baby Mishita Dhupar Vs Sushil Kumar
2/12
2nd Add: .......Respondents
IDPL Geeta Nagar, Veerbhadra, Rishikesh, Dehradun, Uttranchal249201 (Owner of vehicle no.HR58 A4610) 3 ICICI Lombard General Insurance Co.Ltd.
Birla Towers, 5th Floor, 25 Barakhamba Road, New Delhi 110001, (Insurer) AWARD UNDER SECTION 166 & 140 OF THE M.V. ACT,1988 1 Vide this award, I shall dispose off the petition under section 166 & 140 of the M.V. Act, 1988, of the petitioner as filed by her against the respondents i.e. respondent no. 1 , the driver of vehicle bearing no. HR58 A4610 (for short 'the offending vehicle'), respondent no.2 the owner of the said offending vehicle and respondent no. 3, the Insurance Company of the offending vehicle thereby claiming compensation to the extent of Rs. 50,000/ on account of injuries sustained by the petitioner /injured involving the offending vehicle which was being driven by the respondent no.1 .
2. Brief facts as stated by the petitioner in the petition are that on 22.4.08 at about 3 p.m, the injured alongwith her father Sh.Rajeev Kumar Baby Mishita Dhupar Vs Sushil Kumar 3/12 (deceased in petition no.162/10) , mother Smt.Shilpi Dhupar(injured in 169/10), grand mother Smt.Bhupinder Kumari @ Kanchan, grand father with other relatives namely, Nidhi (deceased in petition no.165/10), sister of her father alongwith her minor daughter Nistha (deceased in petition no. 164/10) were coming to Delhi from Dehradun by Maruti Car no.DL6CA9181( for short' the victim vehicle') which was being driven by her father Sh.Rajeev Kumar (deceased in petition no.162/10) at a normal speed and by observing traffic rules and when their car reached at GTB Road, Badedhi Chowk Chhapar, Muzaffar Nagar, the offending vehicle which was being driven by the respondent no.1 at a very high speed , in a rash & negligent manner and in violation of the traffic rules came from Muzzafar Nagar side and hit the victim vehicle with a great force as a result of which the victim vehicle was badly damaged and the injured/petitioner alongwith other inmates sitting therein sustained grievous injuries. They were immediately taken to District Hospital, Muzaffar Nagar, U.P where three relatives of the petitioner, namely, Nidhi, Nistha and her father Sh.Rajiv were declared 'brought dead' and due to this accident, petitioner/injured sustained head injury and abrasion on her head and neck. The grandfather of the petitioner was referred to Base Hospital, Delhi Cantt. where he also died during the course of his treatment. It is further submitted Baby Mishita Dhupar Vs Sushil Kumar 4/12 that the accident has happened due to rash and negligent driving of the offending vehicle which was being driven by the respondent no.1. It is further stated that FIR bearing no.62/08 at PS Chhapar, Muzaffar Nagar u/s. 279/337/338/427/304 A IPC was registered against respondent no. 1. It is stated that she was 3 years of age at the time of accident. Petitioner has suffered great loss , mental pain and agony, and as such compensation to the extent of Rs.50,000/ is being claimed from all the respondents with interest @ 12% p.a.
3. Respondent no.2 has filed written statement taking preliminary objection that the petition against the answering respondent is not maintainable. The petitioner has not come to the court with clean hands and she has suppressed the material facts from the purview of the court and without prejudice to his rights, it is further submitted that the offending vehicle was otherwise comprehensively insured with the respondent no.3 and the respondent no.1 was having valid D/L and, therefore, liability , if any, is of the respondent no.3 and the petition against the answering respondent be dismissed. It is submitted that the offending vehicle was being driven by the respondent no.1 who was having valid D/L and has not committed any breach of terms and conditions of the policy and there is no Baby Mishita Dhupar Vs Sushil Kumar 5/12 negligence on the part of the answering respondent. On merits, facts are denied for want of knowledge and it is submitted that the petitioner be put to strict documentary proof thereof. FIR is stated to be a matter of record and it is further reiterated that the vehicle of the respondent no.2 was duly insured with the respondent no.3. The explanation as to how the accident has happened is denied for want of knowledge and it is prayed that the petition of the petitioner be dismissed.
Respondent no.3 has filed the written statement taking preliminary objections that the driver of the offending vehicle was not holding the valid D/L at the time of the alleged accident and the answering respondent is not liable to pay any compensation if any violation of the terms and conditions of the insurance policy is found. It is further submitted that the vehicle was not worthy to be on the road as no fitness certificate was obtained from the competent authority and the vehicle was being used contrary to the terms & conditions of the insurance policy and, therefore, the answering respondent would not be liable to pay any compensation. It is further stated that the answering respondent is taking all the defences u/s.170 of Motor Vehicle Act and reserve its right to file amended written statement, if new facts are brought to the knowledge of answering respondent. It is further submitted Baby Mishita Dhupar Vs Sushil Kumar 6/12 that no liability can be imposed upon the answering respondent as the driver of the victim vehicle was driving the vehicle at high speed and it was the driver of the victim vehicle who was driving the vehicle in rash and negligent manner. It is further submitted that 7 people were travelling in the victim car who has the capacity of only 4 people and as such the petitioner is not entitled to any compensation and it is prayed that petition of the petitioner be dismissed against answering respondent.
On merits, facts with respect to age and earning capacity of the deceased are denied for want of knowledge. However, the offending vehicle was insured with respondent no.3 is not denied and it is prayed that the petition of the petitioner be dismissed.
These are 8 petitions arising out of same accident and earlier these petitions were given number as 1124/08 to 1131/08(both inclusive). However, after transfer of these matters to this court, new numbers were assigned and petition bearing no.1124/08 (old) and 164/10(new) was treated to be the main petition vide order dt.19.12.08 and all the evidence and documents have been placed in that petition and the present petition is given a new number as 170/10.
Baby Mishita Dhupar Vs Sushil Kumar 7/12 5 After completion of the pleadings, following issues were framed on 8.4.2009 which are as under:
1 Whether Ms.Nistha, Mrs.Nidhi, Mr.Gulshan Kumar and Mr.Rajiv Kumar sustained fatal injuries and Baby Mishita Dhupar, Mrs. Shilpi Dhupar and Mrs Bhupinder Kumari @ Kanchan sustained injuries and Maruti Car no.DL6CA9181 was damaged due to rash and negligent driving of Truck No.HR 58 A4610 by respondent no.1? OPP 2 Whether the petitioner is entitled to get any compensation, If so to what amount and from whom?
3 Relief After the framing up of issues parties were directed to lead evidence to prove their respective contentions/pleas. Accordingly, petitioner has examined Sh.Pankaj Bajaj as P.W1, herself as P.W2, Smt.Bhupinder Kumari as P.W3, Sh.A K Sharma, Office Superintendent as P.W4, Sh.Mohan Ram Cashier from Account Section Deepak Memorial Hospital & Medical Research Centre as P.W5.
P.W1 has has deposed that the deceased Nidhi was his wife who died in a road side accident on 22.4.08 at about 3 p.m when she with her father Sh.Gulshan Kumar and mother Smt.Bhupinder Kumari @ Kanchan and other relatives i.e. Sh.Rajiv Kumar, his wife and the injured were coming to Delhi from Dehradun and when they reached at G.T Road Baby Mishita Dhupar Vs Sushil Kumar 8/12 Badedhi Chowk, Chhapar, Muzaffar Nagar, the offending vehicle being driven by the respondent no.1 in a rash and negligent manner hit the victim vehicle with great force due to which the victim vehicle got badly damaged and his wife and minor daughter, namely, Nishtha sustained fatal injuries and other inmates including the injured sustained grievous injuries.
P.W2 Mrs.Shilpi Duphar has deposed in terms of the petition and has deposed that on the date of accident i.e.22.4.08, her daughter/injured/petitioner received injuries on her entire body and particularly grievous injuries on her head and abrasion on her neck. She further deposed that she has incurred Rs.20,000/ on medical treatment of her daughter/injured, Rs.5,000/ on conveyance and Rs.5,000/ on special diet.
P.W3 has examined herself in petition no.1130/08(old), 173/10(new) being wife of Sh.Gulshan Kumar(since deceased), in petition bearing no. 1126/08(old) 163/10(new) for herself being injured and in petition bearing no.1128/08(old) 167/10(new) which case is with respect to loss of vehicle.
P.W4 has proved service record of Sh.Rajiv who was an employee Baby Mishita Dhupar Vs Sushil Kumar 9/12 with Army Base Workshop Delhi Cantt.Delhi and the same is Ex.as P.W 4/13.
P.W5 has proved salary slip of the deceased Nidhi (deceased in petition no.1125/08(old) 165/10(new) and have closed their evidence. Thereafter opportunity was granted to the respondent to lead its evidence but the Ld.Counsel for the respondent no.3 submitted that all the documents have been verified and as such the respondent no.3 does not want to lead respondent's evidence. Respondent no.1 was Ex.parte since beginning and the respondent no.2 has not led any evidence.
I have heard the arguments and perused the record. My issuewise findings are as follows:
ISSUE NO.1:
7 The onus to prove this issue was upon the petitioner and she has to prove that she has received grievous injuries due to rash and negligent driving of the offending vehicle being driven by respondent no.1. To prove this, petitioner/injured has examined her mother Smt.Shilpi Dhupar as P.W2 and she has filed her medical bills which is Ex.P.W 2/13. She has also filed the documents of criminal court. The filing of documents include chargesheet as filed against the respondent no.1 which establishes that the Baby Mishita Dhupar Vs Sushil Kumar 10/12 respondent no.1 was driving the offending vehicle in rash and negligent manner and the filing of the medical bill proves that the petitioner had suffered injuries on account of rash and negligent driving on the part of the respondent no.1 on 22.4.08. Accordingly, the issue stands proved and decided accordingly.
ISSUE NO.2 It has already been held hereinabove that the petitioner had suffered injuries due to rash and negligent driving of the respondent no.1. Therefore, she is entitled for compensation. As far as amount of compensation is concerned, the same depends upon the nature of injury, disability if any, pecuniary loss, inability of petitioner or her absence from routine duty due to this injury, the period of such absence from her employment and amount which she might have spent on medical treatment or special diet if any. 11 It is matter of record as well as with the grace of God that the petitioner has not suffered any disability. The medical bill which have been filed on record is with respect to Mishita Dhupar (inadvertently the name of the petitioner is mentioned as Nishika in the bill , however the same shall be read as Mishita Dhupar) and the same is amounting to Rs.5000/.
Baby Mishita Dhupar Vs Sushil Kumar 11/12 Accordingly, Petitioner is entitled for compensation as following:
Towards pecuniary loss:
Towards Medical Bills Rs. 5,000/
Towards Nonpecuniary loss:
Towards Special Diet Rs. 5,000/
Towards Conveyance Rs. 5,000/
Towards Mental Pain and Agony Rs. 10,000/
Total Rs. 25,000/
LIABILITY:
12 Now coming to the next aspect as to from whom the petitioner
is entitled for compensation. It is argued by learned counsel for petitioner that the liability of all the respondents is joint and several. It is admitted by all the respondents that the vehicle was duly insured with the respondent no. 3, therefore, the liability to pay the compensation is joint and several by all the respondents but liability of the respondent no.3 is primary, who is insurer. Accordingly, the respondent no. 3 is directed to pay compensation of Rs.25,000/ to the petitioner with interest @ 8% per annum from the date of filing of the petition till the date of depositing the cheque in the bank, Baby Mishita Dhupar Vs Sushil Kumar 12/12 except for the period which is specifically excluded by the court . The respondent no. 3 is further directed to deposit the amount of compensation after calculation of amount of compensation within a period of one month and one month would start from the date when the petitioner will furnish her account number either to the respondent no. 3 or to the court. The respondent no. 3 is further directed to deposit the amount by way of cheque in the court.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (S.S. MALHOTRA)
ON 16th AUGUST, 2011 ADDL. DISTRICT JUDGE/
POMACT/KARKARDOOMA
COURT/DELHI
Baby Mishita Dhupar Vs Sushil Kumar