Delhi District Court
Judge: Mact(Outer): Rohini: Delhi vs Sh. Rajesh S/O Sh. Hari Singh on 1 February, 2013
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IN THE COURT OF MS. PREETI AGRAWAL GUPTA:
JUDGE: MACT(OUTER): ROHINI: DELHI
Case No. 316/09
Sh. Mahavir Singh s/o Sh. Som Pal
r/o 10/165, Trilok Puri, Delhi
2 address: 713, Village Pooth Khurd
nd
Delhi.
....Petitioner
Versus
1. Sh. Rajesh s/o Sh. Hari Singh
r/o Village Auchandi, Delhi.
2. Delhi Transport Corporation
Through its Chairman
I. P. Estate, New Delhi.
3. The United India Insurance Co. Ltd.
Kanchanjunga Building, Connaught Place
New Delhi. ....Respondents
DATE OF INSTITUTION : 11.01.2008
JUDGMENT RESERVED ON : 01.02.2013
DATE OF JUDGMENT : 01.02.2013
AWARD
1. The petitioner has filed the present claim petition by way of the present petition under Section 166 and 140 of the Motor Vehicle Act seeking compensation for the accidental injuries sstained by the petitioner. Briefly stating the facts of the case are that on 25.12.2007 at about 12:55 p.m the Case No. 316/09 Mahavir Singh V. Rajesh 2 injured/petitioner was standing at near Panchayat office, Village Pooth Khurd, Delhi, meanwhile, a DTC bus bearing no. DL1PB0014 being driven by its driver at a very high speed, rashly and negligently came and hit the petitioner. As a result of forceful impact, the injured/petitioner fell down on the road and sustained serious/grievous injuries all over the body. The petitioner was removed to Maharishi Balmiki Hospital, Pooth Khurd, Delhi and from there he was referred to DDU hospital for treatment of accidental injuries and was admitted there for more than 25 days. It is averred that the injured/petitioner sustained multiple fracture of ribs, serious abdominal and bone injures besides abrasion and blunt injuries all over the body. The FIR No. 647/07 under Section 279/337 IPC at PS Bawana was registered against the respondent No.1/driver of DTC bus in question.
2. The petitioner was 45 years of age, at the time of accident and claimed that he was selfemployed as building contractor and was earning Rs. 8,000/ per month. It is averred that the petitioner is entitled to get amount of compensation since due to the injuries from the accident in question, the health and life span of the petitioner has been seriously affected . The petitioner has claimed compensation of Rs. 5,00,000/.
3. A joint written statement has been filed on behalf of Case No. 316/09 Mahavir Singh V. Rajesh 3 respondent no.1 and 2. As such, it is admitted that the offending DTC bus in question bearing no. DL1PB0014 was involved in the accident in question. It is also admitted that respondent no. 1 was the bus driver of the alleged offending DTC bus. It is not denied that on 25.12.07, petitioner sustained injuries suffered due to fall while trying to board the offending DTC bus. However, it is denied that the accident was caused due to rash and negligent driving of respondent no. 1 and 2. It is alleged that the accident was caused due to the negligent act of the injured himself when he was trying to board the bus while it was still moving, causing him to fall and sustain injuries. As such, the factum of accident and involvement of respondent no. 1 and respondent no. 2 is not denied. It is averred that the offending DTC bus is stated to have been insured with respondent No.3/National Insurance Co. Ltd. for the relevant period of the accident.
4. The respondent No.3/Insurance Company has filed written statement taking preliminary objections that the insurance company is not liable to pay any compensation as there is no cause of action for filing the present claim. It is further claimed that Insurance Company is not liable to pay any compensation U/s 149(ii) Motor Vehicle Act in case, the driver of the offending Case No. 316/09 Mahavir Singh V. Rajesh 4 vehicle does not hold any valid and effective driving licence at the time of the alleged accident or any other breach in the terms and conditions of the insurance policy. The insurance company has also disputed the present claim on merits calling for strict proof of averments upon the petitioner and disputed the excessive amount of compensation claimed. It is admitted that the offending vehicle/DTC bus in question was duly insured with it, as on the date of accident.
5. From the pleadings of the parties, following issues were framed : a. Whether the petitioner received injuries in the road side accident caused on 25.12.2007, at about 12:55 p.m near Panchayat Office, Village Pooth Khurd, Delhi due to rash and negligent driving of R1/driver of offending vehicle no.
DL1PB0014?OPP
b. Whether the petitioner is entitled to
compensation, if so, to what extent and
from which of the respondents? OPP
c. Relief
6. The petitioner has, himself, appeared in the witness box as PW1 and has deposed in his chief examination duly corroborating the averments in the petition as regards the facts of the alleged road accident in question. He has tendered in evidence his medical Case No. 316/09 Mahavir Singh V. Rajesh 5 treatment prescription slip as Ex. PW1/1, medical bills as Ex. PW1/2 certified copies of criminal case record as Ex. PW 1/3 and copy of MLC as Ex. PW1/4.
7. PW1 was also crossexamined by the ld counsel for Insurance Company on relevant aspects. PW1 was cross examined regarding the documentary proof of his income. PW1 has deposed that he was a self employed and was not having any government tenders, contracts and was working with private persons. PW1 was also crossexamined regarding the medical rest advised to him. PW1 denied that he did not incur the expenses on medicines, conveyance, attendant charges, special diet, loss of income as claimed.
8. No other witness has been examined and petitioner evidence has been closed.
9. The court has duly heard the Ld. Counsel for the petitioner and the insurance company and has also duly appreciated the pleadings and material on record along with the evidence tendered before the court.
10. My findings on the above mentioned issues are as follows:
ISSUE NO 1: a. Whether the petitioner received injuries in the road side accident caused on 25.12.2007, at about 12:55 p.m near Panchayat Office, Village Pooth Khurd, Delhi due to rash and negligent driving of R1/driver of offending vehicle no. DL1PB0014?OPP Case No. 316/09 Mahavir Singh V. Rajesh 6 It is the case of the petitioner that on 25.12.07 at about 12:55 p.m, he along with one Ramesh Kumar was standing near Panchayat office, situated near Gali near pavement, Village Pooth Khurd, Delhi, then all of a sudden a DTC bus bearing no. DL1PB0014 which was being driven by respondent no.1, came at a very high speed in a rash and negligent manner and thereby hit the petitioner and the accompanying person. As a result of forceful impact, the petitioner as well as his companion sustained serious/grievous injuries. The petitioner was taken to Maharishi Balmiki hospital from where he was referred to DDU hospital and remained hospitalised there w.e.f 25.12.2007 to 22.01.2008 i.e for almost one month.
10. PW1/petitioner has tendered his medical papers Ex.PW1/2 (colly.). The occurrence of the accident by the offending vehicle which in the present case is a DTC bus, has not been denied, though , denying the aspect of rash and negligent driving by respondent no./driver. However, it is duly proved from the record that FIR no. 647/07 U/s 279/337 IPC PS Bawana has been registered against respondent no.1 in respect of accident in question.
Respondent no. 1 and respondent no. 2 have filed their Written Statement as such not denying the accident involving the Case No. 316/09 Mahavir Singh V. Rajesh 7 driver/respondent no.1 and the offending vehicle in question. However, it is alleged that the accident was caused by rash and negligent act of the petitioner himself suggesting that he suffered injuries due to fall when he was trying to board the moving bus in question. It is duly established on record that respondent no. 1 was the driver and accused in the criminal case arising out of the road accident in question in FIR No97/2008 PS Bawana, Delhi U/s 279/337 IPC.
11. On the aspect of "rash and negligent driving"law has been well settled in this regard. The Hon'ble High Court of Delhi in National Insurance Company Ltd. Vs. Gita Bindal & Ors. in MAC APP. No. 179/2004 vide judgment dt. 12.10.2012 has passed binding guidelines on the principle of "Doctrine of Res Ipsa Loquitur". The Hon'ble High Court of Delhi have been pleased to discuss the law of Res Ipsa Loquitur and has been pleased to summarize the principles.
It has been held that "Res ipsa Loquitur means that the accident speaks for itself. In such cases, it is sufficient for the plaintiff to prove the accident and nothing more". ...
It has been further laid down that"Res ipsa Loquitor is an exception to the normal rule that mere happening of an accident is no evidence of negligence on the part of the driver. This maxim means the mere Case No. 316/09 Mahavir Singh V. Rajesh 8 proof of accident raises the presumption of negligence unless rebutted by the wrongdoer." ...
It has been further observed that"in some cases considerable hardship is caused to the plaintiff as the ture cause of the accident is not known to him, but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident, but can not prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of resipsaloquitor is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more." ...
It has been further appreciated that"the effect of doctrine of 'res ipsa loquitur' is to shift the onus to the defendant in the sense that the doctrine continues to operate unless the defendant calls credible evidence which explains how the accident of mishap may have occurred without negligence, and it seems that the operation of the rule is not displaced merely by expert evidence showing, theoretically, possible ways in which the accident might have happened without the Case No. 316/09 Mahavir Singh V. Rajesh 9 defendant's negligence. The doctrine of 'res ipsa loquitur, therefore, plays a very significant role in the law of tort and it is not the relic of the past, but the living force of the day in determining the tortuous liability."
12. In light of the above binding principles of law/doctrine of reipsaloquitor, the onus lies upon the respondents to show any attributable or contributory negligence of the victim in occurrence of the accident. The bald allegation of respondent nos. 1 and 2, in their written statements, about own negligence of the petitioner himself is not supported by any evidence or material. There is no plausible defence with respondent nos. 1 and 2, as claimed, as there is no explanation as to how the accompanying person with the petitioner was also injured in the accident in question. On the contrary, the material and facts suggest and establish that the petitioner along with his companion were standing near a pavement at the accident spot when the offending DTC bus hit both of them. In view of the aforesaid facts and circumstances and well laid down law, the petitioner has proved his case and allegations by virtue of the claim petition and duly supported evidence. The doctrine of resipsaloquitor is wholly applicable in proving that the petitioner sustained injuries from the road accident caused by the offending bus in question, which was being Case No. 316/09 Mahavir Singh V. Rajesh 10 driven rashly and negligently by the respondent No.1. It is further evident from the medical record Ex.PW1/1 and Ex. PW1/2 that the petitioner sustained grievous injuries due to the accident in question . The issue is accordingly duly proved in favour of the petitioner and against the respondents and is adjudicated accordingly. ISSUE NO.2: Whether the petitioner is entitled to compensation, if so, to what extent and from which of the respondents? OPP
13. The petitioner has suffered grievous injuries in the road accident in question and therefore is entitled to just and reasonable compensation for the damages suffered by him. It is clearly proved on record that the injured/petitioner suffered grievous injuries coupled with multiple fracture of ribs, head and abdominal injuries besides abrasions and multiple injuries all over the body. The injured was removed to Maharishi Balmiki Hospital from where he was referred to DDU hospital, New Delhi and he remained hospitalised w.e.f 25.12.07 to 22.01.08. The petitioner has also tendered the medical treatment record with bills to show his treatment which stands duly proved.
14. The petitioner has however failed to give any documentary material to show the period for which he was not able to resume his regular schedule and employment. He has placed on record medical Case No. 316/09 Mahavir Singh V. Rajesh 11 bills for an amount of Rs. 15,000/. The bills are duly proved as per the treatment received by the petitioner. Keeping in view the multiple injuries including grievous injuries sustained by the petitioner, a sum of Rs.20,000/ is considered reasonable and proper and accordingly, granted to the petitioner towards medical treatment.
15. Further, petitioner has not filed any documentary proof regarding conveyance,attendant charges and special diet, however, keeping in view the nature of injuries of the petitioner, a lump sum amount of Rs.10,000/ is granted towards conveyance, attendant charges and special diet.
16. The petitioner has underwent pain and agony during the period of treatment and recovery, therefore, a sum of Rs. 25,000/ is granted to the petitioner towards pain and sufferings.
17. The petitioner has stated in his evidence of affidavit that at the time of accident, the he was selfemployed and was working as a building contractor and was earning Rs. 8,000/ per month. It is claimed that due to the said accident, he could not resume his work for eight months. The petitioner has failed to place on record any documentary material to assess actual monetary loss caused to the petitioner and actual period of recovery due to the accident. No proof of income or education has been furnished. It is also shown that petitioner was 45 years , as claimed. It has been duly considered that in absence of any proof of income, the income of the petitioner is assessed as per the Minimum Wages applicable for Case No. 316/09 Mahavir Singh V. Rajesh 12 `semiskilled ' @ Rs. 3,682/ per month and the same is assessed for a period of four months as the petitioner would not have been able to resume his work for four months from the date of accident. The loss of income for four months is calculated as Rs. 14,728 (Rs. 3,682 x 4) which is rounded of to Rs. 15,000/.
18. Thus, the total compensation payable to petitioner is detailed as below:
1. Medical expenses Rs. 20,000/
2. Special diet/conveyance Rs. 10,000/ and Attendant Charges
3.Pain & sufferings Rs. 25,000/
4.Loss of income Rs. 15,000/ _____________ Total compensation Rs. 70,000/
19. So far as the liability to pay compensation is concerned, there is no defence of the insurance company to show any violation of terms and conditions of the insurance policy. In these circumstances, respondent no.1 being the driver is primarily liable to pay the compensation. Respondent no. 2 and 3 being owner and insurer are vicariously liable to pay the compensation. Compensation is payable by respondent no.3 being insurer, as vehicle was duly insured as on the date of accident. The issue is disposed of accordingly.
RELIEF:
20. In view of the afore given reasons and findings, the petitioner is Case No. 316/09 Mahavir Singh V. Rajesh 13 entitled to compensation in the sum of Rs. 70,000/ along with interest @ 9% per annum from the date of institution of present petition till its realization. Respondent No.3/Insurance Co. is directed to deposit the cheque of compensation in the name of petitioner within 30 days before this Tribunal. Petition is disposed off in aforesaid terms. File be consigned to Record Room.
ANNOUNCED IN THE (PREETI AGRAWAL GUPTA)
OPEN COURT JUDGE, MACT (OUTER1)
ON 01.02.2013 ROHINI : DELHI
Case No. 316/09 Mahavir Singh V. Rajesh
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Suit no. 316/09
01.02.2013
Present: Counsel for petitioner.
Final arguments heard.
Vide separate judgment, award is passed in favour of petitioner to a sum of Rs. 70,000/ as compensation along with interest @ 9% per annum from the date of filing of present petition till its realization. Respondent no.3/Insurance Company is directed to deposit the cheques in the name of the claimants within 30 days before this Tribunal. Petition is disposed off accordingly.
File be consigned to Record Room.
(PREETI AGRAWAL GUPTA)
JUDGE, MACT (OUTER1)
ROHINI : DELHI
Case No. 316/09 Mahavir Singh V. Rajesh
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Case No. 316/09 Mahavir Singh V. Rajesh