Delhi District Court
Shri Lakhan Mandal Son Of Shri Lalji ... vs Shri Rakesh Nath Son Of Shri Vishwa Nath on 13 October, 2009
1
IN THE COURT OF SHRI SANJAY KUMAR AGGARWAL
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
NEW DELHI
SUIT NO.:1548/00
114/99 (OLD)
DATE OF INSTITUTION : 25.02.1999
Shri Lakhan Mandal son of Shri Lalji Mandal.
Resident of Village Jagannath Tola, PO Baghdora,
PS Madik Chak, Distt. Maldaha (West Bengal).
.......Petitioner.
VERSUS
1. Shri Rakesh Nath son of Shri Vishwa Nath.
Resident of C35, Kalandi Colony, New Delhi.
2. M/s. Delhi Press,
E9, Jhandewalan Estate, New Delhi.
3.The Oriental Insurance Company Limited.
N36, Connaught Circus, New Delhi.
......... Respondents
AWARD
1. This JudgmentcumAward shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred as Act) filed by petitioner for grant of 2 compensation for the injuries suffered by him in the road vehicular accident.
2. The case of the petitioner is that on 31.1.99 at about 2.00 PM, while the injured alongwith other labourers were going on a loaded truck and when the truck stopped after running about 20 meters, the injured alongwith other labourers alighted from the said truck, suddenly a red colour car bearing no. DL 6CA 7734 came from the front side and hit the injured. The injured received serious injuries. The injured claimed that he received injuries owing to the rash and negligent driving of the vehicle no. DL 6CA 7734 by the driver Shri Rakesh Nath. In total, the petitioner have claimed Rs. 2 lac on account of the injuries sustained by her in the accident.
3. The written statement was filed by the respondents no.1 and 2 wherein they denied the very claim of the petitioner and termed the rash and negligent aspect to be a false one. The injuries were also denied by the respondents no.1 and 2. The respondent no.2 admitted that he was the owner of the offending vehicle. It was claimed that it was the injured who was solely responsible for the alleged accident which took place in as much as the injured suddenly jumped of the truck and hit the back side wheel of the offending vehicle which was 3 beyond the control of the driver of the offending vehicle. The written statement was filed by the insurance company initially and thereafter an amended written statement was filed by the insurance company wherein it was admitted that the offending vehicle was insured from 27.3.98 to 26.3.99. The insurance company also denied the claim of the petitioner.
4. On the pleadings of the parties following issues arise for consideration on 16.11.2000:
1.Whether claimant Lakhan Mandal suffered injuries as pleaded in the petition on 31.1.99 at around 2.00 PM on the main road Kalandi Colony when hit by car DL 6CA 7734 driven in a negligent manner by respondent no.1 under the control and authority of its owner respondent no.2 and insured with respondent No.3? OPP.
2. Whether claimant met with an accident and suffered injuries by his own fault and negligence? OPD 1 and 2.
3. Whether insurance company cannot be held liable for award for respondent no.1 not holding a valid driving licence at the time of this accident ? OPD3.4
5. In order to establish the claim of the petitioners, learned counsel for the petitioner has filed the affidavits of Shri Lakhan Mandal and Sh. Vinod Kumar who have been examined as PW1. and PW2. The respondents have examined Shri Praveen Lamba as R3W1, Shri Padam Singh, Record Keeper, Motor Licence Office, North Zone, Mall Road as R3W2, Shri Sanjeev Kumar, LDC, Office of MLO, South Zone as R3W3 and Shri D S Bhullar, UDC, Motor Licencing Authority, I.P.Estate as R3W4 in their defence.
6. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the parties. My findings on various issues are as under :
ISSUE NO. 1
7. Since the present petition is under Section 166 of M V Act, it was the bounden duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident. The petitioner have filed the certified copies of criminal record i.e. the copy of FIR bearing No. 64/99 P.S. N.F.Colony under 5 Section 279/337 IPC as Ex.CW1/C1/3 and site plan etc. To determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the competition of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 6 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
8. Therefore, reading all the documents filed by the petitioner as a whole it is clear that respondent No.1 was driving the vehicle in a rash and negligent manner. Respondent No.2 was the owner of the offending vehicle to which respondent no. 3 was insurer.
9. The issue No:1 therefore, stands in favour of the petitioners and against the respondents.
COMPENSATION :
NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS :
10. The medical record of the injured suggest that the injured has got injuries upon his body on which he got fracture on febula region and fracture on left ankle. He was first taken to AIIMS Hospital and thereafter for want of bed he was further referred to Safdarjung 7 Hospital. The petitioner has not been able to file the medical bills etc. The cognizance can also be taken on the fact that in such like cases, the public at large is generally ignorant and insensitive to take care of the medical bills etc. and are more concerned with their treatment. Therefore, keeping in view of the nature of injuries and aforesaid observations, I hereby award a sum of Rs. 2,000/ towards medical bills keeping in view the nature of injuries. PAIN AND SUFFERINGS :
11. It is settled law that a particular amount can not be fixed on pain and sufferings for all cases as is varies from case to case. Judicial notice can be taken on the fact that since the petitioner had got injuries/fracture as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy dose of antibiotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision:
2.2.2007, Delhi High Court by Hon'ble Mr. Justice Pradeep 8 Nandrajog wherein it was held that: "On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives corelation with the pain and suffering.
The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
© Duration of the treatment."
12. Keeping in view the said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs. 3,000/ towards pain and sufferings and loss of amenities of life. Besides this, I hereby award a sum of Rs.500/ towards special diet and Rs. 500/ towards conveyance.
LOSS OF INCOME :
13. The petitioner was stated to be earning a sum of Rs. 4000/ per month at the time of accident but no income proof has been filed by the petitioner to show that he suffered loss of income. The medical record suggest that he could not have earned for at least six 9 months owing to the fracture on his left ankle and febula. Therefore, calculating the wages of the petitioner under Minimum Wages Act as no income proof is on record, the income of the petitioner can be treated to be Rs. 2348/ per month (This was the rate applicable as on 01.02.1999 i.e. on the very next date from the date of accident) X 6 = Rs. 14,088/. Accordingly, I award Rs. 14,088/ towards loss of income. ( calculated in terms of the monthly income of the petitioner as unskilled worker for six months loss of income ).
The total compensation is assessed as under: Treatment expenses: Rs. 2,000/.
Pain and sufferings: Rs. 3,000/
Special diet: Rs. 500/
Conveyance : Rs. 500/
Loss of Income : Rs. 14,088/
Total: Rs. 20,088/
RELIEF:
14. I award a sum of Rs. 20,088/ (Rupees Twenty Thousand Eighty Eight only) as compensation with interest at the rate of 7.5% per annum including interim award, if any from the date of filing the petition i.e., 25.02.1999 till the date of its realisation in 10 favour of the petitioner and against the respondents on account of their liability being joint and several.
APPORTIONMENT OF LIABILITY:
15. The insurance company have claimed from the very beginining that the driving licence of the driver of the offending vehicle Shri Rakesh Nath/respondent no. 1 was fake. The insurance company have produced various witnesses to this effect. The R3W1 was the officer of the insurance company wherein he deposed before this court that after obtaining copy of the seizure memo of the driving licence no. 95050105 which was in the name of Rakesh Nath, the company got it verified from South Zone Licensing Authority. The South Zone Licensing Authority informed the insurance company that the said licence was issued in the name of Rakesh Nath but it stood in the name of Anand Kumar Singal. The said licence was again got verified from another licencing Authority at Mall Road. The Mall Road authority letter also bore the same fate as of South Zone Authority. A letter was also issued to the respondent no.2 / owner of the offending vehicle under Order 12 Rule 8 CPC but the insurance company could found no luck for its reply. In support of its claim, the insurance company also produced the official from South Zone 11 Authority as R3W3 wherein it verified the claim of the insurance company to the effect that the said licence was not in the name of respondent no.1 Rakesh Nath but it stood in the name of Anand Kumar Singhal. The insurance company also produced R3W2 Shri Padam Singh who was the official of the Mall Road Authority. The said witness also verified the version of the insurance company to the effect that the said Authority had not issued licence in the name of the R1 bearing no. 95050105.
16. On the other hand, the respondent no. 1 and respondent no. 2 had filed the certificate from Licencing Authority, New Delhi which was showing that licence no. P95050105 stood in the name of Rakesh Nath S/o Sh. Vishwa Nath which was issued on 4.4.1995 and it was valid up to 3.4.2000. Accordingly, the official of the Licencing Authority from South Zone was also summoned and was examined as R3W4. The R3W4 Sh. D.S.Bhullar appeared alongwith the records containing licence no. 95050101 to 95050110, photocopies of which were proved as Ex.R3W4/1 to 10. It was found that the records of licence no. 95050105 was found missing from original record. The official of New Delhi Authority failed to say as to whether the said licence bearing no. P95050105 stood in the name 12 of Rakesh Nath or not. As already said, the two licencing authority namely South Zone as well as Mall Road Authority have verified the fact that the said licence was not issued in the name of R1 but a doubt has arisen from the bare reading of the testimony of R3W4 who was the witness from New Delhi Authority. The respondent no. 1 and respondent no. 2 have already filed the certificate from the said New Delhi authority regarding the issuance of licence in the name of R1 which was having validity as on the date of accident but, since the relevant record was found missing, the insurance company have failed to prove the fact that in fact, the driving licence of the driver of the offending vehicle / respondent no. 1 was a fake one. Moreover, it is not clear from the seizure memo issued by the police as to whether the said licence bearing no. 95050105 was issued by Mall Road Authority or the South Zone Authority or New Delhi Authority. It cannot be presumed that the said licence number can only be issued by Mall Road Authority or the South Zone Authority as New Delhi Authority had also issued the licence of the same number, the record of which could not be made available.
17. In these circumstances, no roving enquiry is required regarding the validity of the driving licence of the driver of the offending vehicle 13 as the case of the petitioner has already got delayed. Since there is a doubt about the validity of D/L as is apparent from the testimony of Sh. D.S.Bhullar R3W4, therefore, I hold that the insurance company is at liberty to agitate its rights of recovery but in Civil Court as no straightway recovery certificate can be issued in view of the aforementioned circumstances. The insurance company shall disburse the claim to the petitioners first and thereafter, the insurance company is at liberty to file recovery suits in Civil Court in case it deems it appropriate.
The respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, respondent No.3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
File be consigned to record room.
Announced in the open court On 13th October, 2009.
(SANJAY KUMAR AGGARWAL)
PO: MACT : NEW DELHI
14
LAKHAN MANDAL VS. RAKESH NATH
13.10.2009
Present: None.
Vide separate order, an award in the sum of Rs. 20,088/ (Rupees Twenty Thousand and Eighty Eight only) including the interim compensation if paid any, alongwith interest at the rate of 7.5% per annum is passed from the date of filing the petition till its realisation. in favour of the petitioners and against the respondents . File be consigned to record room.
(SANJAY KUMAR AGGARWAL) PO: MACT : NEW DELHI