Delhi District Court
Ms. Ashok Prabha vs Satbinder Singh on 1 October, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.76/14
Date of Institution: 12.07.2013
IN THE MATTER OF:
Ms. Ashok Prabha
D/o Shri Muhar Singh
R/o H.No.519, TIP
IIIrd Krishi Kunj
Inderpuri, New Delhi. ...Petitioner
Versus
1. Satbinder Singh
S/o Shri Darshan Singh
R/o H.No.B6/232, Sector17
Rohini
Delhi 110085.
Also at:
VPO Kandali
PS Khanaori
District Sangrur
Punjab.
2. Shri Salbinder Singh
S/o Shri Darshan Singh
R/o H.No.B6/232, Sector17
Rohini
Delhi 110085.
Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 1 of 30
3. Reliance General Insurance Co. Ltd. ...Respondents
Final Arguments heard : 10.09.2015 Award reserved for : 01.10.2015 Date of Award : 01.10.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation arising out of a road accident.
2. It is the case of the petitioner that on 07.02.2010 the petitioner was traveling in Innova Car bearing No.HR55HT3352 and the petitioner along with her family members and relatives was going to Etah, U.P. When the car of the petitioner reached near Darau More, near PS Gabhana, Distt. Aligarh, U.P. at about 3.00 a.m. of 08.02.2010 the offending truck bearing registration No.HR38J5355 which was coming from Aligarh, U.P. side and which was being driven by its driver/ respondent No.1 at a very high speed, without blowing its horn, rashly, carelessly and negligently and in contravention of traffic rules and regulations came and hit the Innova Car of the petitioner with great impact. Due to the sudden and forceful impact of the offending vehicle with the car of the petitioner, the petitioner sustained grievous injuries on her mouth, teeth and all other parts of her body and her teeth and mouth were badly damaged. The petitioner/ injured was rushed to J.N. Medical College Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 2 of 30Hospital, AMU, Aligarh, U.P. for her medical treatment and thereafter the petitioner was medically treated in Goyal Hospital, D2, Trans Yamuna Colony, Agra, UP and was further medically treated in Jankidass Kapur Memorial Hospital, Naraina Road, Pandav Nagar, New Delhi and her Xray was taken and she had also taken medical treatment from other hospitals in Delhi. It is stated that in respect of the accident FIR No.42/2010 under sections 279/338 IPC was registered at PS Gabhana, Aligarh, U.P.
3. It is averred that the petitioner is still under medical treatment and she had already spent more than Rs.70,000/ on her medical treatment. It is contended that due to the accident and grievous injuries, the petitioner and her family members had suffered from mental pain, agony, harassment, torture, financial sufferings and her entire life had been totally ruined, because she was still having problem in her mouth and teeth and she could not eat anything properly. It is stated that the petitioner was 20 years old and was working as an LIC Agent and was earning Rs.17,000/ p.m. It is submitted that the petitioner was confined to bed for about 70 days and she could not attend her LIC Agent duty due to the grievous injuries and she suffered further financial losses of about Rs.34,000/ on account of the accident and grievous injuries. It is alleged that the petitioner was still not in a position to work and her future prospects of promotions had been totally ruined and her working capacity had been badly affected due to the grievous injuries. It is contended that the respondent No.1 was solely responsible for the accident, who drove Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 3 of 30the offending vehicle at very high speed, without blowing any horn, rashly, carelessly, negligently and in contravention of traffic rules and regulations and caused the accident and the respondent No.2 being the owner of the offending vehicle/ truck and the respondent No.3 being the insurer of the offending truck were liable to pay compensation to the petitioner jointly and severally. It is prayed that an amount of Rs.6,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
4. Written statement was filed on behalf of the respondent No.3 taking the preliminary objections that the claim petition is bad for nonjoinder of necessary parties as the driver, owner and insurer of the Innova car bearing No.HR55HT3352 were necessary parties, since the accident, if any, had occurred on account of sole negligence on the part of the driver of the Innova car who was driving the Innova car at a fast speed and in a rash and negligent manner. Without admitting the factum of the accident, it was submitted that the alleged accident had taken place due to sole carelessness and negligence of the driver of the Innova Car bearing No.HR55HT3352 since the driver of the car was driving the car rashly, negligently, in violation of traffic rules and the provisions of M.V. Act and without holding valid and effective driving license and dashed the truck and thereby caused the alleged accident and the petitioner sustained the alleged injuries. The involvement and negligence of vehicle bearing No.HR38J5355 was specifically denied. It is stated that the petition in the present form is neither competent nor legally maintainable. It is Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 4 of 30submitted that the respondent No.3 was not liable to pay any amount of compensation to the petitioner as at the time of the alleged accident, Mr. Satbinder, the driver of the vehicle No.HR38J5355 was not holding a valid and effective DL to drive the truck bearing No.HR38J5355. Accordingly, the owner/ insured had intentionally committed breach of terms and conditions of the insurance policy and the liability would be solely that of the owner of the vehicle. It is alleged that the insured vehicle was being used in violation of the permit under Section 66 of the M.V. Act and without having valid and effective registration certificate and fitness certificate at the time of the alleged accident. It is averred that the petitioner had filed false medical bills and treatment papers etc. It is submitted that all the material allegations made in the case/petition were false. It is averred that the owner/ insured of the vehicle i.e. the respondent No.2 had failed to inform the respondent No.3 about the occurrence of the accident and had not supplied any information as required under the M.V. Act. It is contended that even if it is held by the Court that the injured/ complainant sustained injury, then she must have sustained the same because of the carelessness, rashness and negligence of the driver of Innova car and not because of any wrongful act or negligence on the part of the driver of the truck as alleged. It is submitted that the amount claimed by the petitioner is highly excessive, exorbitant, arbitrary and without any rational basis as the petitioner suffered simple injury only. The averments made in the claim petition were denied. It is denied that the petitioner was having an income of Rs.17,000/ per month. It is submitted that the accident, if any, was Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 5 of 30caused on account of sole rashness and negligence of the driver of Innova car who could not control his vehicle and thereby caused the alleged accident due to which the petitioner sustained the alleged injury. It is denied that the petitioner had incurred Rs.70,000/ on her treatment. The insurance of the interest of the owner of vehicle bearing registration No.HR38J5355 with the respondent No.3 was admitted subject to the terms, conditions, exclusions and exceptions of the commercial vehicle policy bearing No.1915792334002092 issued for the period from 20.11.2009 to 19.11.2010, which was in the possession of Salbinder/ respondent No.2.
5. Vide order dated 30.9.2014 the respondent No.1 was directed to be served by way of publication in 'National Herald'. The name of the newspaper was thereafter changed to 'Statesman. The respondent No.1 was served by way of publication in 'Statesman' dated 17.10.2014 in the connected suit No. 72/14. The respondent No.2 was also duly served. From the pleadings of the parties, the following issues were framed vide order dated 25.11.2014:
1.Whether the petitioner sustained injuries in the accident which occurred on 7.02.2010 at about 12.00 o' clock in the night near Darau More, near PS Gabhana District Aligarh, U.P. caused by rash and negligent driving of a vehicle bearing No.HR38J5355, being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP Ashok Prabha v Satbinder Singh & Ors.Suit No. 76/14 Page No. 6 of 30
2.Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
An application under order 6 rule 17 read with Section 151 CPC was filed on behalf of the petitioner for correction of the time of the accident in the petition stating that the actual time of the accident was 3.00 a.m. in the morning which was allowed vide order dated 19.12.2014. An application under Section 170 of M.V. Act was filed on behalf of the insurance company which was allowed vide order dated 20.01.2015.
6. The petitioner Ms. Ashok Prabha herself appeared in the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A. She stated that as a result of the accident, she had suffered a lot. She stated that she had still not recovered well and her face was disfigured. Copy of MLC prescription from Goyal Hospital is Ex.PW1/1, MLC from Jankidas Kapoor Hospital is Ex.PW1/2, copy of FIR is Ex.PW1/3, copy of site plan is Ex.PW1/4 and copy of challan is Ex.PW1/5 and the medical bill is Ex.PW1/6. PE was closed on 20.1.2015. RE was closed on 14.5.2015 but thereafter an application was filed on behalf of the insurance company for leading evidence which was allowed vide order dated 10.9.2015 in suit No.72/14 and it was directed that evidence led in suit No.72/14 be read in this case as well. Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 7 of 30
7. On behalf of the respondent No.3 Shri Abhishek Bhardwaj, Assistant Manager (Legal Claim) appeared in the witness box as R3W1 and led his evidence by way of affidavit which is Ex.R3W1/A. He deposed that the respondent No.3 had been impleaded as insurer of vehicle bearing No.HR38J5355 vide policy No.1915792334002092 valid for the period 20.11.2009 to 19.11.2010. Copy of the insurance policy is Ex.R3W1/1 (colly). He stated that the respondent No.3 sent a notice under Order 12 rule 8 CPC through their counsel to the respondent No.2/ Mr. Salbinder Singh, the owner of vehicle No.HR38J5355 for production of the original insurance policy and a valid and effective DL of the respondent No.1/ driver at the relevant time of the alleged accident before the court. Copy of the legal notice is Ex.R3W1/2 and postal receipts are Ex.R3W1/3 and Ex.R3W1/4. He stated that in compliance to the legal notice, Mr. Salbinder, the respondent No.2 had supplied a fair photocopy of DL bearing No.23561/1986/Cuttack, Orissa of the driver/ Mr. Satbinder Singh in the office of their counsel. Copy of the DL of the respondent No.1/ driver of the offending vehicle is Ex.R3W1/5. The respondent No.3 had moved an application under RTI Act for seeking information regarding the genuineness of the said DL to the PIO, STA, Cuttack and a reply to the said RTI application had been received in the office of the respondent No.3 stating therein that the said DL had not been issued by the concerned Licensing Authority. Therefore, the DL of the driver/ Mr. Satbinder Singh was fake, forged and fabricated and the driver Mr. Satbinder Singh was not holding a valid and effective DL at the time of the accident and the said Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 8 of 30fact was within the knowledge of the insured under the policy. He stated that there was violation of the driver clause of the terms and conditions of the insurance policy which was mentioned in para Driver on the face of the insurance policy. Application under RTI along with original counterfoil postal order and original postal receipt is Ex.R3W1/6 (colly). Reply under RTI Act sent by PIO and MVI, RTO, Cuttack and Inspector of Motor Vehicles, Cuttack with the original envelope is Ex.R3W1/7 (colly). He stated that on account of violation of the terms and conditions of the policy, the liability would be solely that of the owner of the vehicle in question and not of the respondent No.3. He stated that the respondent No.3 had called the witness from the concerned Licensing Authority, Cuttack, Odisha to bring the entire record of the said DL and the dasti summon was duly served in the office of the licensing authority, MV Department, Cuttack, Odisha on 3.9.2015 and in response to the dasti summon, the Regional Transport Office and Licensing Authority, MV Department, Cuttack, Odisha gave the statement categorically stating therein that on verification of driving license records maintained by the office during the year 1986 with reference to the Xerox copy of the DL sent along with the summons, it was revealed that driving license No.23561/ Cuttack/ 1986 had not been issued by the authority to anybody. Hence the DL was not a genuine one. Summon issued to the Licensing Authority, Cuttack is Ex.R3W1/8 and statement of the RTO & Licensing Authority, MV Department, Cuttack, Odisha is Ex.R3W1/9. He stated that the respondent No.2/ owner/ insured had intentionally committed breach of the terms and conditions of the insurance Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 9 of 30policy. Therefore, the respondent No.3 was not liable to pay any amount of compensation to the petitioner or to indemnify the insured under the policy in question. He was not crossexamined. RE was closed on 10.9.2015.
8. I have heard the Learned Counsel for the petitioner as well as the Learned Counsel for the respondent No.3 and perused the record. The petitioner was also examined on 18.8.2015 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
9. My findings on the specific issues are as under:
Issue No. 1
10. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that she sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Ashok Prabha v Satbinder Singh & Ors.Suit No. 76/14 Page No. 10 of 30
Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the 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 injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 11 of 30
11. The case of the petitioner is that on 07.02.2010 the petitioner was traveling in Innova Car bearing No.HR55HT3352 and the petitioner along with her family members and relatives was going to Etah, U.P. When the car of the petitioner reached near Darau More, near PS Gavana, Distt. Aligarh, U.P. at about 3.00 a.m. of 08.02.2010 the offending truck bearing registration No.HR38J5355 which was coming from Aligarh, U.P. side and which was being driven by its driver/ respondent No.1 at a very high speed, without blowing its horn, rashly, carelessly and negligently and in contravention of traffic rules and regulations came and hit the Innova Car of the petitioner with great impact. Due to the sudden and forceful impact of the offending vehicle with the car of the petitioner, the petitioner sustained grievous injuries on her mouth, teeth and all other parts of her body and her teeth and mouth were badly damaged. The petitioner/ injured was rushed to J.N. Medical College Hospital, AMU, Aligarh, U.P. for her medical treatment. It was stated that in respect of the accident FIR No.42/2010 under sections 279/338 IPC was registered at PS Gavana, Aligarh, U.P. (though as per the documents on record the FIR No.is 30/2010). In paras 2, 3 and 4 of her affidavit Ex.PW1/A the petitioner had reiterated the mode and manner of the accident as stated in the claim petition.
12. The petitioner has placed on record certified copies of the criminal record consisting of copy of FIR, copy of charge sheet, copy of site plan and copies of documents in respect of the offending vehicle and copy of the DL of Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 12 of 30the respondent No.1. As per the FIR No.30/10 under sections 279/338/427 IPC, PS Gabhana, Aligarh the case was registered on the basis of complaint of Sanbeer Singh who was driving the Innova car, wherein he had stated about the manner of the accident. As per the charge sheet, the respondent No.1 has been charge sheeted for the offence under sections 279/338/427 IPC.
13. The respondents No.1 and 2 had not filed the written statement nor appeared to crossexamine the witnesses. During crossexamination by the learned counsel for the insurance company PW1 admitted that the accident had occurred due to head on collision. She stated that she was sitting on the middle seat of the back side of Innova Car. She denied the suggestion that the accident took place due to the sole negligence of the driver of the Innova car. She denied the suggestion that the accident did not take place due to rash and negligent driving of the Truck. She stated that the road where the accident took place was a one way road. She admitted that the accident took place at the middle of the road. She admitted that the police officials had not recorded her statement at the time of the accident. It is pertinent that PW1 admitted that the accident had occurred due to head on collision and that the road where the accident took place was a one way road and further that the accident took place at the middle of the road. Apart from that only suggestions were put to her which she denied. A perusal of the site plan shows that both the vehicles were going almost in the middle of the road and thereafter they moved towards the side for vehicles going to Aligarh and the accident took place and even Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 13 of 30PW1 had admitted that the accident took place at the middle of the road. As per the FIR the truck had overturned though its driver had escaped. As such the involvement of the offending vehicle in the accident cannot be disputed.
14. It is the contention of the respondent No.3 that the accident had taken place due to the negligence of the driver of the Innova car. Even if that contention were to be accepted, it is seen that the petitioner was not driving the Innova car but was a passenger in the same and as such this is not a case of contributory negligence and at the most would be a case of composite negligence. The law is well settled that the claimants can chose the insurer and insured in respect of the vehicles as tort feasors to recover the compensation amount. In Om Wati & Ors. v. Mohd. Din & Ors. 2001 91 DLT 184 (decided by DB of Hon'ble High Court of Delhi) it was observed:
"Coming to the question of 'apportionment' it seems to us that First Appellate Court was in error in holding that claimants would have to forego 30% share of their awarded compensation in favour of the joint tortfeasors of the truck present before the Court as they had failed to implead tortfeasors of the car as partyrespondents in their claim suits. This is because the accident could not be wholly treated to be the result of contributory negligence. Even, if it was assumed that the drivers of the two vehicles contributed to the accident in some measure, the other two deceased who were travelling in the car could not be held responsible for any such negligence. Therefore, it was a case of composite negligence in their case. The principle of composite negligence is that where more than one person are responsible for commission of the wrong, the person wronged Ashok Prabha v Satbinder Singh & Ors.Suit No. 76/14 Page No. 14 of 30
has a choice of proceedings against all or any one or more. Any one of the wrong doer is liable for the whole damage if it is otherwise made out. In other words the liability of two sets of tort feasors becomes both joint and several."
In the present case the driver, owner and insured of the vehicle bearing No.HR38J5355 have been joined as respondents and even the charge sheet was filed against the respondent No.1. Further the Hon'ble Supreme Court in T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, held: "6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 15 of 30Thus it was held by the Hon'ble Supreme Court that each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them.
15. The respondents No.1 and 2 who are the driver and owner of the offending vehicle have not adduced any evidence to dispute the version put forth by the petitioner or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/338/427 IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.HR38J5355. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
16. It was stated that due to the sudden and forceful impact of the offending vehicle with the car of the petitioner, the petitioner sustained grievous injuries on her mouth, teeth and all other parts of her body and her teeth and mouth were badly damaged. The petitioner/ injured was rushed to J.N. Medical Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 16 of 30College Hospital, AMU, Aligarh, U.P. for her medical treatment. The medical documents in respect of the petitioner are on record. Thus it stands established that the petitioner had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioner and against the respondents.
Issue No.2
17. Since issue No.1 has been decided in favour of the petitioner she would be entitled to compensation as per the provisions of the Act. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by her on her treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, she is further entitled to non pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
18. The case of the petitioner is that due to the sudden and forceful impact of the offending vehicle with the car of the petitioner on 7/8.2.2010, the Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 17 of 30petitioner sustained grievous injuries on her mouth, teeth and all other parts of her body and her teeth and mouth were badly damaged. The petitioner/ injured was rushed to J.N. Medical College Hospital, AMU, Aligarh, U.P. for her medical treatment and thereafter the petitioner was medically treated in Goyal Hospital, D2, Trans Yamuna Colony, Agra, UP and was further medically treated in Jankidass Kapur Memorial Hospital, Naraina Road, Pandav Nagar, New Delhi and her Xray was taken and she had also taken medical treatment from other hospitals in Delhi. It was averred that the petitioner was still under medical treatment and she had already spent more than Rs.70,000/ on her medical treatment. It was contended that due to the accident and grievous injuries, the petitioner and her family members had suffered from mental pain, agony, harassment, torture, financial sufferings and her entire life had been totally ruined, because she was still having problem in her mouth and teeth and she could not eat anything properly. It was submitted that the petitioner was confined to bed for about 70 days. The petitioner in paras 2, 3 and 5 of her affidavit Ex.PW1/A had deposed to that effect. She stated that as a result of the accident, she had suffered a lot. She stated that she had still not recovered well and her face was disfigured. Copy of MLC prescription from Goyal Hospital is Ex.PW1/1, MLC from Jankidas Kapoor Hospital is Ex.PW1/2 and the medical bill is Ex.PW1/6. The medical documents show that the petitioner had sustained head injury but there is nothing else to show the nature of injuries. As such the injuries are taken to be simple in nature. Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 18 of 30
19. During crossexamination by the learned counsel for the insurance company PW1 admitted that there was no record to show that she had sustained any injury due to the accident i.e. on 07.02.2010. She admitted that she had not filed any MLC in respect of the accident. She denied the suggestion that she had not sustained any injury due to the accident. She denied the suggestion that she had filed false and procured medical treatment record to get false claim. She admitted that she had not filed any document to show the bed rest of 70 days. Thus PW1 admitted that there was no record to show that she had sustained any injury due to the accident i.e. on 07.02.2010. She also admitted that she had not filed any MLC in respect of the accident. However there is one document of 12.2.2010. Further the name of the petitioner also finds mention in the FIR. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner had stated that she had already spent more than Rs.70,000/ on her medical treatment. The petitioner had filed one bill for an amount of Rs.80/but the same is of October, 2010 i.e. much after the accident and there is no medical document of the period between February and October, 2010. However the petitioner would have incurred some expenses on her treatment. Accordingly an amount of Rs.1,000/ is awarded towards medical treatment and expenses.
20. Note can also be taken of the fact that on account of the accident the petitioner may not have been able to enjoy the amenities of life and would Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 19 of 30have undergone pain and suffering. There is also nothing on record to show any disfigurement. No document has been placed on record regarding expenditure on conveyance, special diet or attendant charges. There is also nothing to show any expenditure on these counts. There is also nothing to show that the injuries of the petitioner were such that she might have to incur extra expenditure on conveyance and attendant. However it can be taken note of that she might have had to spend some amount on special diet. LOSS OF INCOME/ STUDIES
21. It is the case of the petitioner that she was 20 years old and was working as an LIC Agent and was earning Rs.17,000/ p.m. It was submitted that the petitioner was confined to bed for about 70 days and she could not attend her LIC Agent duty due to the grievous injuries and she suffered further financial losses of about Rs.34,000/ on account of the accident and grievous injuries. It was alleged that the petitioner was still not in a position to work and her future prospects of promotions had been totally ruined and her working capacity had been badly affected due to the grievous injuries. The petitioner in para 5 of her affidavit Ex.PW1/A had deposed to that effect. However the petitioner has not placed on record any document to show what the petitioner was doing and how much amount she was earning. During crossexamination by the learned counsel for the insurance company PW1 admitted that she had not filed any document to show her income and employment. She denied the Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 20 of 30suggestion that she had filed a false claim and she was not entitled to get any claim. Thus PW1 admitted that she had not filed any document to show her income and employment. As such there is nothing on record to show what the petitioner was doing or how much amount she was earning. During examination by the Tribunal the petitioner stated that she was around 25 years old. She stated that at the time of the accident she was studying in 1 st year college and at present she was working. Thus the petitioner herself had stated that she was studying in 1st year college at the time of the accident and she had not stated about working as an LIC agent or earning any amount.
22. The petitioner had stated that she was confined to bed for 70 days but she has not produced any document to show that she remained on bed rest for any particular period and there is nothing to show that she was advised bed rest for any particular period or that on account of the injuries sustained in the accident she was unable to work or to show the period for which she was not able to work. During crossexamination by the learned counsel for the insurance company PW1 had admitted that she had not filed any document to show the bed rest of 70 days. The petitioner had stated that she was in 1 st year college at the time of the accident. In the absence of any specific advice of the doctor notice can be taken of the fact that the petitioner may not have been able to perform her avocation for some period on account of the injuries sustained in the accident. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs.5,000/ on account of loss of Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 21 of 30income/ studies.
23. The petitioner has not proved that she acquired any disability on account of the accident or that she is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce her efficiency to work and thereby she would suffer loss of future income. There is also nothing to show that she had lost out on any promotions. Accordingly the petitioner cannot be held entitled to any amount on account of loss of future prospects.
24. In the facts and circumstances of the case and in view of the above discussion a lump sum amount of Rs.12,000/ would be just and reasonable. Accordingly an amount of Rs.12,000/ is awarded as compensation in favour of the petitioner.
RELIEF
25. The petitioner is awarded a sum of Rs.12,000/ (Rs.Twelve Thousand only) along with interest @ 9% per annum from the date of filing of the claim petition till its realization including, interim award, if any already passed against the respondents and in favour of the petitioner. The respondent No.3 is directed to deposit the award amount directly in court by way of crossed cheque/ demand draft within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 22 of 30The petitioner shall file her complete address as well as address of her counsel for sending the notice of deposit of the award amount. APPORTIONMENT OF LIABILITY:
26. The respondent No.1 is the driver, the respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. It is the case of the respondent No.3 that the respondent No.1 was not possessing a valid and effective DL on the date of the accident which amounted to breach of fundamental condition of the insurance policy and as such the respondent No. 3 was not liable to pay the compensation. The respondent No.3 in support of its case had produced R3W1 in the witness box who deposed that the respondent No.3 sent a notice under Order 12 rule 8 CPC through their counsel to the respondent No.2/ Mr. Salbinder Singh, the owner of vehicle No.HR38J5355 for production of the original insurance policy and a valid and effective DL of the respondent No.1/ driver at the relevant time of the alleged accident before the court. Copy of the legal notice is Ex.R3W1/2 and postal receipts are Ex.R3W1/3 and Ex.R3W1/4. He stated that in compliance to the legal notice, Mr. Salbinder, the respondent No.2 had supplied a fair photocopy of DL bearing No.23561/1986/Cuttack, Orissa of the driver/ Mr. Satbinder Singh in the office of their counsel. Copy of the DL of the respondent No.1/ driver of the offending vehicle is Ex.R3W1/5. The respondent No.3 had moved an application under RTI Act for seeking information regarding the Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 23 of 30genuineness of the said DL to the PIO, STA, Cuttack and a reply to the said RTI application had been received in the office of the respondent No.3 stating therein that the said DL had not been issued by the concerned Licensing Authority. Therefore, the DL of the driver/ Mr. Satbinder Singh was fake, forged and fabricated and the driver Mr. Satbinder Singh was not holding a valid and effective DL at the time of the accident and the said fact was within the knowledge of the insured under the policy. He stated that there was violation of the driver clause of the terms and conditions of the insurance policy which was mentioned in para Driver on the face of the insurance policy. Application under RTI along with original counterfoil postal order and original postal receipt is Ex.R3W1/6 (colly). Reply under RTI Act sent by PIO and MVI, RTO, Cuttack and Inspector of Motor Vehicles, Cuttack with the original envelope is Ex.R3W1/7 (colly). He stated that on account of violation of the terms and conditions of the policy, the liability would be solely that of the owner of the vehicle in question and not of the respondent No.3. He stated that the respondent No.3 had called the witness from the concerned Licensing Authority, Cuttack, Odisha to bring the entire record of the said DL and the dasti summon was duly served in the office of the licensing authority, MV Department, Cuttack, Odisha on 3.9.2015 and in response to the dasti summon, the Regional Transport Office and Licensing Authority, MV Department, Cuttack, Odisha gave the statement categorically stating therein that on verification of driving license records maintained by the office during the year 1986 with reference to the Xerox copy of the DL sent along with the Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 24 of 30summons, it was revealed that driving license No.23561/ Cuttack/ 1986 had not been issued by the authority to anybody. Hence the DL was not a genuine one. Summon issued to the Licensing Authority, Cuttack is Ex.R3W1/8 and statement of the RTO & Licensing Authority, MV Department, Cuttack, Odisha is Ex.R3W1/9. He stated that the respondent No.2/ owner/ insured had intentionally committed breach of the terms and conditions of the insurance policy. Therefore, the respondent No.3 was not liable to pay any amount of compensation to the petitioner or to indemnify the insured under the policy in question. He was not crossexamined.
27. The petitioner had also placed on record a copy of the DL of the respondent No.1 and it was the same license which was got verified by the respondent No.3 i.e. DL bearing No.23561/1986/Cuttack, Orissa of the driver, a fair copy of which was stated to have been supplied by the respondent No.2 in the office of the counsel of the insurance company and a copy of the same has been placed on record by the insurance company as well. As per the information received through RTI by the insurance company which is Ex.R3W1/7, the said DL had not been issued by the office. Further in response to the summons to appear in the court with the record, a report was received from RTO & Licensing Authority, MV Department, Cuttack, Odisha that the DL No.23561/Cuttack/1986 had not been issued by the said authority to anybody, hence the DL was not a genuine one. The DL shows an endorsement of Gaya and that even subsequently it was got renewed but even if the DL was got Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 25 of 30renewed, it is settled law that if a DL is fake, renewal would not cure it. In fact it is seen that the license which is on record is in the name of Salbinder Singh i.e. the respondent No.2. The respondent No.3 had issued notice to the respondents No.1 and 2 to produce the DL of the respondent No.1 but the respondent No.1 did not produce any other DL nor appeared to crossexamine R3W1. In New India Assurance Co. Ltd. v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733 the Hon'ble High Court observed as under:
"23. Where the assured chooses to run away from the battle i.e. fails to defend the allegation of having breached the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at the trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."
In the instant case the respondent No.3 had sent the notice under Order XII Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 26 of 30Rule 8 CPC to the driver and owner and there is nothing more that the insurance company could have done and the respondents No.1 and 2 have not appeared to rebut the report from the Authority that it had not issued the license.
28. It is settled law that the insurance company has to establish that there was a conscious breach of the terms and conditions of the policy. It is now well settled that in such cases the insurance company would first have to satisfy the liability towards third party though it may subsequently recover the amount from the insured. The issue was considered at length by the Hon'ble High Court of Delhi in Sanjay v. Suresh Chand & Ors. F.A.O. No.445/2000 decided on 3.8.2012 and it was observed:
"The issue of satisfying the third party liability even in case of breach of the terms of insurance policy is settled by three Judge Bench report in Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21. As per Section 149(2) of the Motor Vehicles Act (the Act), an insurer is entitled to defend the action on the grounds as mentioned under Section 149(2)(a)(i)(ii) of the Act. Thus, the onus is on the insurer to prove that there is breach of the condition of the policy. It is well settled that the breach must be conscious and willful. Even if a conscious breach on the part of the insured is established, still the insurer has a statutory liability to pay the compensation to the third party and will simply have the right to recover the same from the insured/tortfeasor either in the same proceedings or by independent proceedings as the case may be, as ordered by the Claims Tribunal or the Court.
The question of statutory liability to pay the compensation was discussed in detail by a two Judge Bench of the Supreme Court Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 27 of 30
in Skandia Insurance Company Limited v. Kokilaben Chandravadan, (1987) 2 SCC 654 where it was held that exclusion clause in the contract of Insurance must be read down being in conflict with the main statutory provision enacted for protection of victim of accidents. It was laid down that the victim would be entitled to recover the compensation from the insurer irrespective of the breach of the condition of policy. The three Judge Bench of the Supreme Court in Sohan Lal Passi analyzed the corresponding provisions under the Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988 and approved the decision in Skandia. In New India Assurance Co., Shimla v. Kamla and Ors., (2001) 4 SCC 342, the Supreme Court referred to the decision of the two Judge Bench in Skandia, the three Judge Bench decision in Sohan Lal Passi and held that the insurer who has been made liable to pay the compensation to third parties on account of issuance of certificate of insurance, shall be entitled to recover the same if there was any breach of the policy condition on account of the vehicle being driven without a valid driving licence.
20. This Court in MAC APP. No.329/2010 Oriental Insurance Company Limited v. Rakesh Kumar and Others and other Appeals decided by a common judgment dated 29.02.2012, noticed some divergence of opinion in National Insurance Company Limited v. Kusum Rai & Ors., (2006) 4 SCC 250, National Insurance Company Limited v. Vidhyadhar Mahariwala & Ors., (2008) 12 SCC 701; Ishwar Chandra & Ors. v. The Oriental Insurance Company Limited & Ors., (2007) 10 SCC 650 and Premkumari & Ors. v. Prahalad Dev & Ors., (2008) 3 SCC 193 and held that in view of the three Judge Bench decision in Sohan Lal Passi (supra) and Swaran Singh, the liability of the Insurance Company visàvis the third party is statutory. If the Insurance Company successfully proves the conscious breach of the terms of the policy, then it would be Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 28 of 30
entitled to recovery rights against the owner or driver, as the case may be."
Thus if the insurance company proves conscious breach of the terms of the policy, it would be entitled to recovery rights. In the instant case the insurance company has succeeded in discharging the onus in this regard and it stands established that the respondent No.1 was not holding a valid license on the date of the accident and thereafter the respondents No.1 and 2 have not appeared to rebut the same.
29. In view of the settled law the insurance company is liable qua third party though it shall be vested with the right to recover the amount of liability from the insured after depositing the compensation awarded to the third party. Since the respondents No.1 and 2 did not produce a valid license the respondent No.3 shall have the right to recover the amount of compensation from the respondent No.2 who is the owner of the offending vehicle. Accordingly the respondent No.3 shall deposit the amount of compensation for which the respondent No.2 would be liable and after depositing the same shall have the right to recover the same from the respondent No.2. The respondent No.3 being the insurer is directed to deposit the award amount in the court by way of crossed cheque/ demand draft within 30 days of the passing of the award with interest at the rate of 9% from the date of filing of the claim petition till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 29 of 30
30. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file her complete address as well as address of her counsel for sending the notice of deposit of the award amount. The insurer shall deposit the award amount along with interest upto the date of notice of deposit to the claimant with a copy to her counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 02.01.2016.
Attested copy of the award be given to the parties free of cost. File be consigned to record room.
Announced in open court
on this 1st day of October, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Ashok Prabha v Satbinder Singh & Ors.
Suit No. 76/14 Page No. 30 of 30