Delhi District Court
Sh. Prithwi Nath Srivastava vs Sh. Rakesh on 1 May, 2012
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IN THE COURT OF SH. B. S. CHUMBAK, PRESIDING OFFICER
MOTOR ACCIDENTS CLAIMS TRIBUNAL : EAST DISTRICT
KKD: DLEHI
Petition No. 678/06
Date of filing of the petition 20/11/06
Date of assignment to this court 20/11/06
Date on which judgment was reserved 12/04/12
Date of award 01/05/12
IN THE MATTER OF :
1. Sh. Prithwi Nath Srivastava
S/o Sh. Tribhuwan Prasad Srivastava
R/o G1, D20, Kaushambi, Ghaziabad, UP
Also at Flat No.2, 99JExtn.
Laxmi Nagar, Delhi110092,
....PETITIONER
V E R S U S
1. Sh. Rakesh
S/o Sh. Raj Kumar,
R/o M3A1, Dilshad Garden,
Delhi110095, .....Driver
2. Sh. Bharat Bhushan
S/o Sh. Sant Ram @ Sant Singh
R/o 77, Sarai Kale Khan, Delhi, ......Owner
3. Royal Sundaram Alliance Insurance Company Ltd.,
Sundaram Towers, 46 Whites Road,
Royapettah, Chennai600014 ...INSURANCE CO.
...RESPONDENTS
A W A R D
1. Sh. Prithwi Nath Srivastava S/o Sh. Tribhuwan Prasad Srivastava r/o G1, D20, Kaushambi, Ghaziabad Also at Flat No.2, 99JExtn. Laxmi Nagar, 2 Delhi110092, injured (hereinafter referred to as petitioner) filed the present petition u/s 166 & section 140 of the Motor Vehicles Act 1988 (hereinafter referred to as Act of 1988) against Sh. Rakesh S/o Sh. Raj Kumar, R/o M381, Dilshad Garden, Delhi110095, driver (hereinafter referred to as respondent no. 1), Sh. Bharat Bhushan S/o Sh. Sant Ram @ Sant Singh R/o 77, Sarai Kale Khan, Delhi, owner of offending vehicle (hereinafter referred to as respondent no.2) and Royal Sundaram alliance Insurance Company Ltd., Sundaram Towers, 46 Whites Road, Royapettah, Chennai600014, Insurer (hereinafter referred to as respondent no.3) for seeking compensation in lieu of injuries sustained by petitioner due to said accident.
2. The petitioner was 32 years old at the time of accident, working as Civil Engineer at G1, D20, Kaushami Ghaziabad and was earning Rs. 15,595/ p.m.
3. The brief facts arising out of this petition are that on 03/05/05 at about 9:15 a.m petitioner/injured was going on his motorcycle bearing no. DL7S AA4104 to his working place and when he reached near petrol pump just after Ghazipur Bridge, in the meantime a vehicle bearing DL1T5927 make 3 Maruti van reached there being driven by R1 in a rash and negligent manner, took the left turn and hit the injured with a great force due to that petitioner fell down and received multiple grievous injuries including knee injury. Initially the petitioner was taken to Dr. Sanjay Gupta Clinic and after providing first aid the injured was taken to G.T.B. Hospital, Delhi and remained admitted till 24.5.05.
4. A case u/sec. 279/337 IPC was registered vide FIR No. 295/05 at P.S Mandawali.
5. It is further averred that due to the said accident the future prospectus of the petitioner is totally curtailed and he could not be promoted to very high responsible post and claimed Rs. 13,09,139.40/ towards all the head with interest. He also claimed Rs.50,000/ as interim compensation. It is further averred that accident had taken due to rash and negligence act on the part of driver/respondent no.1, R2 is owner of the vehicle and R3 is the insurance company, therefore, they all are jointly and severally liable to make compensation in lieu of the injuries sustained by him. 4
6. Notice of the petition was served upon all the respondents. Only respondent no. 3 (Royal Sundaram Alliance Insurance Co. Ltd.) contested the petition and filed its written statement. However respondent no.1 & 2 were proceeded exparte vide order dated 30.8.07.
7. In their written statement R3 controverted all the allegations as alleged in the petition and also took many preliminary objections such as the petition has not disclosed any cause of action against the answering respondent and the petitioner has concealed the material facts before this court. It is further submitted that accident, if any, is caused solely due to negligence of the petitioner, therefore, the contributory negligence on the part of petitioner cannot be ruled out. But in reply to the para no.17, it is admitted that the vehicle bearing no. DL1T5927 was insured in the name of respondent no. 2 vide Policy no. MQ00000648 and was valid from 9.2.05 to 8.2.06.
8. It is further pleaded that the amount claimed in the petition is excessive, exorbitant and arbitrary and same is not supported by documentary evidence and requested for dismissal of the petition.
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9. On the basis of pleadings from both the sides, following issues were framed by the then Ld. PO vide order dated 29/10/2007:
(1) Whether Sh. Prithvi Nath Srivastva sustained injuries due to rash and negligent driving of Maruti Van No. DL1T5927 by R1?
(2) Whether petitioner is entitled for any compensation, if so, to what amount and from whom?
(3) Relief.
10.After framing of issues, case was fixed for petitioner's evidence.
11.Petitioner himself appeared as PW1 and filed his affidavit Ex.P1. In his affidavit he stated all the facts which were stated by him in his petition. His testimony is further corroborated with the fact that on 3.5.05 a case U/s 279/337 IPC was registered at PS Mandawali, vide FIR No. 295/05. The copy of FIR and charge sheet is collectively Ex. PW1/A. The testimony of PW1 is further corroborated with the fact that he was taken to GTB hospital and was examined vide MLC bearing no. A 1646/05 and also remained admitted there till 24.5.05. He further deposed that the injury received by the petitioner resulted in 40% permanent disability due to fracture bicondye (RL) tibia with 6 with articular surface involvement (nonunion) with fix flexion deformity right knee. The disability certificate is Ex.PW1/C.
12.During his crossexamination he deposed that at the time of accident he was doing a private job and was earning Rs. 15,595/p.m. and after the accident he is earning Rs.64,000/p.m and during the medical leave he used to get the basic salary. He also admitted that at the time of accident there was heavy traffic on the road. He also admitted that the offending vehicle was seen by him once or twice as it was being driven side to side with his vehicle upto the distance of one and a half kilo meter. He also admitted that he was driving his vehicle at very normal speed and not more than 4050 kmph and also admitted that offending vehicle was also being driven almost at the same speed. Rest of his testimony is reiterated as submitted by him in examination in chief. Thereafter, PE was closed and the case is fixed for RE.
13. Sh. Puneet Gupta working as Legal Head appeared as R3W1 and filed his affidavit in evidence Ex.R3W1/A. He also filed the copy of the insurance policy Ex.R3W1/1, copy of the notice u/o 12 rule 8 dated 30.4.2011 issued by the counsel for the company to the owner and driver of the offending vehicle 7 are Ex.R3W1/2. Ex. R3W1/3 are the post receipts. Ex.R3W1/4 is the AD card, Ex.R3W1/5 is the return envelope. Ex.R3W1/6 is the subsequent notice dated 8.7.2011 and Ex.R3W1/7 is the postal receipt in relation to the notice dated 8.7.11. Thereafter, RE closed and case was fixed for final arguments.
14. I have heard the arguments on behalf of Ld. Counsels for both the parties and in view of the evidence/ documents placed on record by both the parties, my findings on the issues are as follows: ISSUE 1 (1)Whether Sh. Prithvi Nath Srivastva sustained injuries due to rash and negligent driving of Maruti Van No. DL1T5927 by R1?
15.On this issue evidence of petitioner is very much relevant and deposed that on 3/05/05 at about 9:15 a.m he was going on his motorcycle bearing no. DL78SAA 4104 to his working place from his residence. When he reached near petrol pump just after Ghazipur Bridge, in the meantime a vehicle bearing DL1T5927 make Maruti reached there being driven by R1 in a rash and negligent manner, took the left turn and hit the injured with a great force due to that petitioner fell down and received the knee injury as well as multiple grievous injuries. Initially the petitioner was taken to Dr. Sanjay Gupta Clinic 8 and after providing first aid the injured was taken to G.T.B. Hospital, Delhi. He remained admitted at GTB hospital till 24.5.05.
16.The aforesaid facts are further corroborated by the IO who had conducted the investigation in this case such as IO seized the documents belonging to the offending vehicle, mechanical inspection of the vehicle was got conducted, driver of the offending vehicle was arrested and injured was also taken to hospital. On the other hand no contrary evidence in rebuttal to the testimony of PW1 is brought on record and in such circumstances I am of the considered view that there is no reason to disbelieve the testimony of petitioners and accordingly, I am of the considered view that petitioner succeeded in proving that on 03.05.2005 the accident had taken place due to rash and negligent driving of vehicle bearing no. DL1T5927 which was being driven by R1.
17.I decide this issue in favour of petitioner and against the respondents. ISSUE 2 (2) Whether petitioner is entitled for any compensation, if so, to what amount and from whom?
18.As regards the quantum of compensation the petitioner has to be 9 compensated for the actual expenses incurred by him and for the loss of income of his being rendered permanently disabled. Besides nonpeculiary losses are to be assesses on the basis of facts proved.
19.As regards the medical expenses incurred by the petitioner he had filed the medical bills of the expenses incurred by the petitioner to the tune of Rs. 39,196/ and other medical/treatment record collectively Ex.PW1/B. It is also brought on record that the petitioner remained admitted in GTB hospital for about 21 days and thereafter he have been regularly taken physiotherapy and medicines. No evidence in rebuttal to the documentary evidence/medical bills are brought on record by R3, therefore, the petitioner has become entitled for Rs.39,196/ towards the head of medical expenses incurred by him.
20.On perusal of the medical treatment record and the disability certificate Ex. PW1/C it is established that the nature of injuries is opined as grievous which have been resulted into permanent disability @ 40% towards right lower limb.
21.With regard to future losses it is established that the petitioner is still in service and earning Rs.64,000/ per month on the other hand he was earning 10 Rs.15,595/ at the time of accident. In such circumstances I am of the view that the petitioner has not entitled to claim future loss of salary. However, he has become entitled for future loss of enjoyment of life/loss of conveyance while going to his office from his house.
22.No age proof has been filed by the petitioner. Copy of the ration card issued on 15.9.2006 shows the age of petitioner as 33 years similarly in the copy of disability certificate issued on 15.9.2009 his age has been shown as 36 years and in view of both these documents on the date of accident the approximate age of the petitioner was about 32 years. Taking into account his condition on receiving injuries which resulted in permanent disability thereby the functional disability for going to his office from his house for whole of his life is considered as 10%. Accordingly, taking into account the age, income proof and the extent of functional disability the amount of prospective loss/loss of enjoyment of life in the present case comes to Rs.11,900/ x12x16x10/100=2,28,480/
23.For assessing the other non pecuniary damages in the present case reference is being had to the provisions of Second Schedule Clause (5) of the 11 Motor Vehicle Act which provided as under: Clause 5: Disability in nonfatal accidents: The following compensation shall be payable in case of disability to the victim arising out of nonfatal accidents.
Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.
Plus either of the following:
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.
Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earing capacity shall be as per Schedule I under Workman's Compensation Act, 1923.
24.I also placed my reliance on a decided case cited as "Sarla Verma Vs. Delhi Transport Corporation 2009 ACJ 1298".
25.Following the formula laid down in clause (5) and the observations given by their lordships in the aforesaid decided case and also taking into consideration the evidence adduced by the petitioner, I am of the view that petitioner has 12 proved the particulars of his employment, therefore, his yearly income is to be assessed on the basis of monthly salary which comes to Rs.11,900/ per month. Keeping in view the nature of injuries I am of the view that four months time would have been taken in healing the wounds and resuming health thereby the petitioner has become entitled for four months salary which comes to Rs.11,900/ x 4 = 47,600/.
26.On considering the nature of injuries received in the said accident, at the time of visiting the various hospitals, the possibility of having a attendant with the petitioner cannot be ruled out and accordingly, I assess Rs. 10,000/ for the said purpose.
27.Petitioner also incurred expenses towards better diet which I assess to the tune of Rs. 20,000/ .
28.However, the pain and suffering of the petitioner in the present case cannot be measured in terms of money as the suffering is going to be with him for his whole life and it is only for the purpose of this claim that a sum of Rs. 35,000/ on the minimum is being assessed.
13LIABILITY
29.On this issue Ld. counsel for insurance company submitted that the DL was neither produced by the driver of the offending vehicle during the course of investigation conducted by the IO nor pursuant to the service of legal notice Ex. R3W1/3 and R3W1/4. It is further submitted that on perusal of the report u/s 173 Cr.P.C certified copy of the same is placed on record wherein it is mentioned that the vehicle was taken in possession, accused was arrested but it is no where mentioned that driving license was seized from him. In such circumstances it is established that the driver of the impugned vehicle was not in possession of valid DL at the time of accident and in such circumstances the insurance company is not liable to indemnify R1 and R2 and requested for exoneration of insurance company from any sort of liability.
30.On the contrary Ld. counsel on behalf of petitioner submitted that both R1 and R2 proceeded exparte vide order dated 2.9.2009 due to the reason that they could not appear before the court and legal notice was served upon both of them on 30.4.2011 and the notices returned unserved with the remarks that no such person was found at the given address. In such circumstances, it is established that no notices are served upon R1 and R2 and in the absence 14 of proof of service of notice coupled with the fact that R1 was arrested and despite of his arrest it is no where mentioned in the charge sheet that he was not in possession of DL. After completion of investigation section 3/181 of MV Act is also not added with Section 279/338 IPC, therefore, in the absence of any cogent evidence on behalf of insurance company it cannot be said that R1 was not having a valid DL at the time of accident and submitted that the plea taken by the insurance company is liable to be rejected.
31.In view of the rival contention raised by Ld. counsel for both the parties I also placed my reliance on a decided case cited as National Insurance Co. LTD. Vs. Tulna Devi and Others, 2009 ACJ 58, wherein it is observed as under:
" The breach of policy conditions, e.g., disqualification of driver of invalid driving license of the driver, as contained in subsection (2) (a) (ii) of section 149,has to be proved to have been committed by the insured for avoiding liability by the insurer.
Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties.
To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one 15 who was not disqualified to drive at the relevant time."
and also placed her reliance on a decided case cited as National Insurance Co.Ltd. Vs Swaran Singh and ors. [2004, 3 SCC 297], wherein it is observed that : " We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving license. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle,admittedly did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence.
In a given case, the driver of the vehicle may not have any hand in it at all."
32.In view of the observation given by their lordships in the above said decided case and on careful perusal of the evidence and material brought on record thereby it is established that no DL was placed on record since the investigation of this case till the conclusion of trial, in such circumstances the present case is to be treated as a case of no DL and on following the 16 observation in aforesaid decided cases I am of the view that the insurance company has become entitled to be exonerated from making of payment of compensation to the petitioner . Accordingly, I hold that R1 and R2 both shall be jointly and severally held liable to make the payment of compensation to the petitioner. This issue is decided accordingly in favour of insurance company and against R1 and R2.
33.After hearing arguments on behalf of Ld. counsel for both the parties, I carefully perused the evidence adduced by the petitioner and the observation given by their lordships in the aforesaid case, the petitioner is become entitled for the total amount of compensation towards all the heads as follows: Sl.No. On Account of Amount (Rs.) 1 Towards medical expenses. Rs. 39,196/ Towards loss of enjoyment of Rs. 2,28,480/ 2 life/prospective loss 3 Towards attendant Rs. 10,000/ 4 Expenses towards better diet. Rs. 20,000/-
Towards loss of income during Rs.47,600.
receiving treatment for 4 months @
5 Rs.11,900/ x 4
6 Towards pain and suffering Rs.35,000/
Total Rs.3,80,276/
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34.As respondent no. 1 is the driver and respondent no. 2 being the owner of the offending vehicle are jointly and severely liable to pay the compensation. Respondent no. 3 (Royal Sundaram Alliance Insurance Co. Ltd) is insurer and is exonerated.
35.R1 and R2 are directed to deposit the amount of Rs.3,80,276/ with interest @ 7.5% p.a from the date of filing of the petition till the date of its realization in favour of the petitioner within 30 days from the date of award.
36.No order as to cost. A copy of the award be supplied to the parties free of cost. File be consigned to the Record Room.
Announced in the open court (B.S. CHUMBAK)
on 1 May 2012.
st
PO MACT : EAST DISTRICT
KKD COURTS DELHI.
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SUIT NO.678/06
01.05.2012
Present:: None.
Vide my separate order final award to the tune of Rs.3,80,276/ with interest @ 7.5% p.a has been passed in favour of the petitioner and against R1 and R2. R1 and R2 are directed to pay the amount of Rs.3,80,276/ with interest @ 7.5% p.a from the date of filing of the petition till its realization within 30 days from the date of order. No order as to cost. A copy of the award be supplied to the parties free of cost. File be consigned to the Record Room.
(B.S. CHUMBAK) P.O MACT1/EAST DISTRICT KKD COURTS : DELHI/1.5.2012.
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