Delhi District Court
Sh. Sangeet Kumar vs Sh. Ravinder Kumar on 9 July, 2018
MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 4577/16 (Old MACP No. 473/10)
Sh. Sangeet Kumar,
S/o Sh. Ram Pal,
R/o Village Kharampur,
PO. Barona,
District Sonepat, Haryana. ..........Petitioner
VERSUS
1. Sh. Ravinder Kumar,
S/o Sh. Hari Ram,
R/o. Village & PO Gorar,
PS. Kharkhoda, District Sonepat,
Haryana (Driver)
2. Sh. Sriniwas,
S/o Sh. Hardwari Lal,
R/o Pocket B1/21, Sector - 11,
Rohini, Delhi (Registered Owner)
3. ICICI Lombard General Insurance Company Ltd.
ICICI BankTowers,
BandraKurla Complex,
Mumbai, Maharashtra (Insurance Co.)
............Respondents
Date of Institution : 04.06.2009 Date of Arguments : 05.07.2018 Date of Award : 09.07.2018 APPEARANCES: Sh. Tarun Dabas, adv for petitioner.
None for respondent no. 1.
Respondent no. 2 is exparte.
Sh. S.K. Tyagi, Adv for respondent no. 3.
Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 1 of 23MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner has sought compensation to the tune of Rs. 5,00,000/ for the injuries sustained by him in Motor Vehicular Accident which occurred on 29.12.2008 at about 9:15 am, Opposite Divya Jyoti Jagriti Sansthan, QutubgarhKanjhawala Road, Jatkhore, Delhi, involving Truck bearing registration no. HR38L5006 (alleged offending vehicle) being driven by respondent no. 1 in rash and negligent manner.
2. It is averred in the claim petition that on 29.12.2008 at about 9:15 am, the petitioner was going from his house to his Photo Studio at Rani Khera, Delhi, by motorcycle bearing no. HR10K9032. When he reached Opposite Divya Jyoti Jagriti Sansthan, QutubgarhKanjhawala Road, Jatkhore, Delhi, one truck bearing registration no. HR38L5006 which was being driven by its driver in rash and negligent manner, came from opposite and hit against his motorcycle from front side. As a result thereof, he sustained grievous injuries on his forehead near right eye and his nose bone had been dislocated and disfigured. His tooth was also broken. He was taken to M.V. Hospital, Pooth Khurd, Delhi, where he was medically examined and was referred to Sushruta Trauma Centre, Delhi. Thereafter, he was further referred to LNJP Hospital, Delhi but he did not get proper treatment from there and he took admission in Brahm Shakti Hospital. It is further averred that the petitioner was self employed and was running his own shop/business of photo studio in the name of Dahiya Studio, Main Bus Stand, Rani Khera, Delhi and was earning Rs. 30,000/ per month. The said vehicle i.e. Truck was found to be owned by respondent no. 2 and it was insured with ICICI Lombard General Insurance Company Ltd /respondent no. 3 during the period in question.
3. In his WS, the respondent no. 1 has claimed that the alleged accident had occurred due to the fault of petitioner and thus, the petitioner is Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 2 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 not entitled for any compensation. On merits, he has simply denied the averments made in the claim petition and has prayed for dismissal of the claim petition.
4. In his WS, the respondent no. 2 has claimed that the accident in question was caused due to rash and negligent driving of the petitioner as he hit the stationary vehicle of the respondent. He further claimed that at the time of accident, respondent no. 1 was taking the vehicle for repairing and same was being driven at very slow speed. All of a sudden, the petitioner who was coming form the opposite direction at high speed, could not control his vehicle and hit against the alleged offending vehicle. On merits, he has simply denied the averments made in the claim petition and has prayed for dismissal of the claim petition.
5. The respondent no. 3, in its WS, has raised statutory defence as provided in Section 149(2) M.V. Act. It has claimed that the alleged offending vehicle was carrying a permit which was not valid for State of Delhi and same was only valid for State of Haryana. The accident took place in Delhi and thus, it is not liable to pay compensation to the petitioner. It is further claimed that the alleged offending vehicle was being used for commercial purpose and same was insured in the name of a person who sold the said vehicle to one Mr. Soni, without intimation to it. The alleged accident had taken place when the vehicle had been sold to third person who was not holding valid insurance policy and the vehicle had not been transferred in favour of alleged purchaser Mr. Soni. Therefore, it is not liable to pay any compensation to the petitioner. On merits, the averments made in the claim petition have been simply denied for want of knowledge and prayer has been made to dismiss the claim petition.
6. From pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 03.09.2011:
1. Whether Sh. Sangeet Kumar suffered injuries Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 3 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 due to road accident on 29.12.2008 at about 9:15 am at Opposite Divya Jyoti Jagriti Sansthan, Jatkhor Qutubgarh Kanjhawala Road, Delhi within the jurisdiction of PS: Kanjhawala due to rash and negligent driving of vehicle no. HR38L5006 being driven by respondent no. 1?OPP.
2. Whether the petitioner is entitled to compensation, if so, to what an extent and from which of the respondents?OPP.
3. Relief.
7. Before proceeding further, it may be noted that the present claim petition was dismissed for non appearance vide order dated 02.05.2012 passed by my Ld. Predecessor. Thereafter, the petitioner had moved an application u/o 9 Rule 9 CPC for restoration of claim petition, which was allowed by my Ld. Predecessor vide order dated 30.07.2013 subject to the condition that petitioner shall not be entitled to any interest w.e.f. 02.05.2012 till the date of restoration of petition i.e. 30.07.2013. Thus, his right to claim interest, if any, has been curtailed from 02.05.12 till 30.07.2013.
8. In support of his claim, the petitioner has examined two witnesses i.e. himself as PW1 and PW2 Sh. Kulbir Singh, Record Clerk, Brahm Shakti Hospital and closed his evidence on 04.04.2014. On the other hand, the respondent no. 1 examined himself as R1W1 and closed his RE on 08.08.14 through his counsel. However, no evidence was adduced by R2 being already exparte. Respondent no. 3/insurance company has, however, examined only one witness i.e. R3W1 Mr. Afaq Sherwani, Manager Legal, ICICI Lombard General Insurance Company Limited and closed its RE through its counsel on 02.01.15.
9. I have heard the arguments addressed by ld counsels for the parties. I have also gone through the record. Both the sides were directed to submit their respective submissions in Form IV B. Counsel for insurance Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 4 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 company has filed the same on record but the petitioner has not submitted the same on record. My findings on the issues are as under: ISSUE NO. 1.
10. For the purpose of this issue, the testimony of PW1 Sh. Sangeet Kumar (injured himself) is relevant. In his evidence by way of affidavit (Ex. PW1/A), he deposed on the lines of averments made in the claim petition. He deposed that on 29.12.2008 at about 9:15 am, he was going from his house to his Photo Studio at Rani Khera, Delhi, by motorcycle bearing no. HR10K9032. When he reached Opposite Divya Jyoti Jagriti Sansthan, QutubgarhKanjhawala Road, Jatkhore, Delhi, one truck bearing registration no. HR38L5006 which was being driven by its driver in rash and negligent manner, came from opposite and hit against his motorcycle from front side. As a result thereof, he sustained serious and grievous injuries on his forehead near right eye and his nose bone had been dislocated and disfigured. His tooth was also broken. He was taken to M.V. Hospital, Pooth Khurd, Delhi, where he was medically examined and was referred to Sushruta Trauma Centre, Delhi. Thereafter, he was further referred to LNJP Hospital, Delhi but he did not get proper treatment from there and he took admission in Brahm Shakti Hospital.
He has relied upon the following documents: S.No. Description of documents Remarks 1. Criminal case record Ex. PW1/1(colly)
2. Complaint regarding loss of medical Ex. PW1/2(colly) bills
11. During his cross examination on behalf of respondent no. 1, he deposed that there was no divider on the road where the accident had occurred. He denied the suggestion that the accident had occurred due to his own negligence since he was driving his motorcycle in the middle of the road. There were no public persons at the spot of accident. The bus stand was at the distance of about 100 meters from the spot. There were public persons at Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 5 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 the bus stop. He did not notice if there was any guard at the gate of Divya Jyoti Jagriti Sansthan. Respondent no. 3 did not crossexamine this witness at all on this aspect. Respondent no. 2 did not crossexamine this witness being exparte.
12. It is evident from the testimony of PW1 that the respondents, more particularly insurance company, could not impeach his testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of crossexamination. Even otherwise, PW1 himself is the injured having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against respondent no.1. This is more so when the respondents have not led any evidence to controvert the case of petitioner as proved by him during the course of inquiry. Hence, I do not find any ground to disbelieve his uncontroverted testimony made on oath.
13. No doubt, the respondent no. 1 has examined himself as R1W1 during the course of inquiry. In his evidence by way of affidavit (Ex R1W1/A), he has deposed that on 29.12.08, he was taking vehicle no. HR38L5006 to Qutubgarh, Delhi for getting its cabin door repaired and when he reached near Bus Stand of Village Jatkhod, Delhi while driving the said vehicle at slow speed, the petitioner who was coming from opposite direction on motorcycle, hit against the front portion of said truck and fell down on the road. He further deposed that the petitioner had suddenly changed his lane and came in middle of the road and hit against his truck without giving him time to react and the collision took place due to fault of the petitioner only. During his cross examination, he admitted that FIR no. 202/08 was registered against him at PS. Kanjhawala on 29.12.08 with regard to accident in question and also that he was facing trial as an accused before the Court of concerned Magistrate. He denied the suggestion that accident occurred due to rash and negligent driving of aforesaid truck by him.
Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 6 of 23MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018
14. It is quite apparent from the perusal of testimony of R1W1 that same is not reliable and the said respondent has tried to raise false defence during his chief examination in order to escape from legal punishment in the criminal case vide FIR No. 202/08 supra registered against him at PS. Kanjhawala as also from liability to pay the compensation amount. Same stands established from the fact that the respondent no. 1(R1W1) has not raised this defence in his WS filed on record. In other words, the relevant part of his chief examination during which he testified that petitioner while coming on motorcycle from opposite direction, had suddenly changed the lane and came on middle of the road and collided against the aforesaid truck, does not find mention in the WS filed by him on previous occasion. Thus, he has concocted this story after filing his WS and hence, same can not be accepted under the law.
15. Moreover, it is an undisputed fact that FIR No. 202/08 u/s 279/337 IPC was registered at PS. Kanjhawala with regard to accident in question. Copy of said FIR (which is part of Ex. PW1/1 colly), would show that same was registered on 29.12.08 on the basis of DD Entry No. 9A dt. 29.12.08 with regard to accident call received in PS. Kanjhawala on 29.12.08. The contents of said FIR would show that motorcycle bearing registration no. HR10K9032 (of victim) and Truck bearing registration no. HR38L5006 were found lying in accidental condition at the spot when SI Balwan had visited the spot on receipt of said DD No. 9A. Copy of said FIR would also reveal that same was registered on 29.12.2008 i.e. on the date of accident itself. Thus, FIR in question was promptly lodged with regard to the accident in question and there is no possibility of any false implication of driver of offending vehicle or false involvement of the offending vehicle in this case.
16. Not only this, the respondent no. 1 namely Ravinder Kumar (accused in State case) has been charge sheeted (which is part of Ex. PW1/1 colly) for offences punishable U/s 279/338 IPC by the investigating agency Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 7 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending Truck bearing no. HR38L5006 by him. Same would also point out towards rash and negligent driving of Truck No. HR38L5006 by respondent no. 1.
17. Apart from above, copy of MLC (which is part of Ex. PW1/1 colly) of injured prepared at M.V. Hospital, Pooth Khurd, Delhi, shows that he had been removed to said hospital on 29.12.2008 at 10:10 AM with alleged history of RTA. On his local examination, he was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.
18. Copy of mechanical inspection report dated 30.12.2008 (which is part of Ex. PW1/1 colly) of Truck No. HR38L5006, would show that there were fresh damages i.e. its front bumper from right side corner was dented/damaged. Likewise, copy of mechanical inspection report dated 30.12.08 of Motorcycle No. HR10K9032, would show that there were fresh damages i.e., its front shocker, handle, control panel, headlight, indicator, front suspension were damaged and its front wheel was bended. Said reports, which have gone unchallenged and unrebutted from the side of respondents, also corroborate the ocular testimony of PW1 Sh. Sangeet Kumar to the aforesaid extent.
19. Moreover, in response to notice U/s 133 M.V Act (which is part of Ex. PW1/1 colly) served upon respondent no. 2 i.e. regd owner of Truck bearing no. HR38L5006, he gave written reply that said vehicle was being driven by Ravinder Kumar(R1) on 29.12.08. Same would also corroborate the Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 8 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 testimony of PW1 Sh. Sangeet Kumar to the extent that the aforesaid truck was being driven by respondent no. 1 at the time of accident.
20. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of pre ponderence of probabilities that he had sustained grievous injuries in road accident which took place on 29.12.08 Opposite Divya Jyoti Jagriti Sansthan, QutubgarhKanjhawala Road, Jatkhore, Delhi, due to rash and negligent driving of Truck bearing no. HR38L5006 by the respondent no. 1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 2.
21. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
MEDICAL EXPENSES
22. PW1 Sh. Sangeet Kumar i.e. injured himself, has deposed in his evidence by way of affidavit(Ex. PW1/A) that after the accident, he was taken to M.V. Hospital, Pooth Khurd, Delhi, where he was medically examined and was referred to Sushruta Trauma Centre, Delhi. Thereafter, he was further referred to LNJP Hospital, Delhi but he did not get proper treatment from there and he took admission in Brahm Shakti Hospital. He further deposed that he had sustained grievous injuries specially on his forehead near right eye and his bone of nose had been dislocated and disfigured. He deposed to have spent approximately a sum of Rs. 50,000/ on his medical treatment. During his crossexamination on behalf of respondent no. 1, he denied the suggestion Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 9 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 that he did not incur the expenses of Rs. 50,000/ on his treatment. He further denied the suggestion that there was no likelihood of any future expense on his treatment. He also denied the suggestion that he had no bills for his treatment except for the bills from Brahm Shakti Hospital and he had lodged a false NCR regarding misplacement of his remaining bills. During his cross examination on behalf of respondent no. 3, he deposed that he had not filed documents/medical bills of Rs. 50,000/ incurred on his medical treatment except the bills filed on record. He was not crossexamined by respondent no. 1 being already exparte. The petitioner/injured has filed medical bills to the tune of Rs. 17,155/ (which is part of Ex. PW2/1 colly). There is no serious challenge with regard to the authenticity of said medical bills from the side of insurance company.
23. PW2 Sh. Kulbir Singh, Medical Record Clerk, Brahm Shakti Hospital, Budh Vihar, Delhi, produced complete treatment record of injured Sangeet S/o Sh. Rampal. He exhibited the said record as Ex. PW2/1(colly). The said witness was not crossexamined by either of the respondents.
24. It is quite evident from the testimony of PW2 that the petitioner had incurred a sum of Rs. 17,155/ in his treatment received from Brahm Shakti Hospital. He has also placed receipts with regard to amount incurred by him on his treatment at Brahm Shakti Hospital. The respondents have not challanged the authenticity and genuineness of those bills during cross examination of the witnesses of petitioner. Hence, a sum of Rs. 17,155/ is awarded in favour of petitioner under this head.
LOSS OF INCOME
25. Injured namely Sh. Sangeet Kumar 56(PW1) has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was running his own photo studio. He further deposed that due to the injuries sustained by him, he could not join his business for almost two months and suffered loss of Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 10 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 approximate of Rs. 2,00,000/ as there was marriage season in the months of January and February 2009. During his crossexamination on behalf of respondent no. 1, he admitted that he had not suffered any disability due to the accident. He deposed that doctor did not advise him any bed rest after he was discharged from the hospital. He volunteered that he remained confined to bed for about one month after being discharged from the hospital. He denied the suggestion that he himself did not continue photography. He deposed that he had two employees in his photography shop as on the date of accident. He was not an income tax assessee. He deposed that he did not have any proof that he had ever earned Rs. 2 lacs within 2 or 3 months either before or after the accident in marriage season. He denied the suggestion that he had not suffered any monetary loss of income due to the accident. During his cross examination on behalf of respondent no. 3, he deposed that he had not filed any document regarding his income from photography. He admitted that he had not filed any document regarding loss of Rs. 2 lacs in his business. He denied the suggestion that he was not doing the work of photography. He further denied that suggestion that he had not suffered any loss of income. He was not crossexamined by respondent no. 2 being already exparte.
26. The summary card/discharge slip(which is part of Ex. PW2/1 colly) of Brahm Shakti Hospital, Budh Vihar, Delhi in respect of petitioner/injured, would reveal that he remained admitted in the said hospital from 29.12.2008 till 02.01.2009. Said treatment record would show that the injured was admitted in the said hospital with alleged history of RTA. There was swelling over his face and nasal bleed was also there at the time of his admission. Said part of his testimony has gone unchallanged and uncontroverted from the side of respondents.
27. Apart from the aforesaid documents produced by PW1 i.e. the petitioner, he has failed to file any other medical treatment record in order to show the exact period upto which he had received the medical treatment.
Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 11 of 23MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 Considering the nature of injuries sustained by the petitioner and in view of ocular testimonies of PW1 & PW2, it is presumed that he would not have been able to work at all atleast for a period of two months or so.
28. During the course of arguments, counsel for injured fairly conceded that for want of any cogent evidence with regard to monthly income of injured/petitioner, his income has to be assessed as per Minimum Wages Act applicable during the relevant period. The petitioner has not filed any document in respect to his educational qualification. In these circumstances, the minimum wages of an unskilled worker under Minimum Wages Act during the period in question, has to be taken into consideration. The minimum wages of an unskilled worker were Rs. 3,683/ per month as on the date of accident which is 29.12.2008. Thus, a sum of Rs. 7,366/(Rs. 3,683/ x 2)is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
29. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
30. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries specially on his forehead near right eye and his bone of nose had been dislocated and Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 12 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 disfigured in the accident in question. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs. 50,000/towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
31. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had sustained grievous injuries specially on his forehead near right eye and his nose bone has been dislocated and disfigured due to the accident in question. Thus, he would not have been able to enjoy general amenities of life during the said period. In view of the nature of injuries and his continued treatment for considerable period, I award a notional sum of Rs. 25,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE & SPECIAL DIET
32. Although, the petitioner/injured as PW1 has deposed that he had spent Rs. 50,000/ on conveyance, attendant and special diet but he has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that he had sustained grievous injuries due to the accident in question. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 5,000/ for conveyance charges and a sum of Rs. 10,000/ for special diet to the petitioner.
Thus, t he total compensation is assessed as under:
1. Medical Expenses Rs. 17,155/
2. Loss of income Rs. 7,366/ Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 13 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018
3. Pain and suffering Rs. 50,000/
4. Loss of general amenities and Rs. 25,000/ enjoyment of life
5. Conveyance and special diet Rs. 15,000/ Total Rs. 1,14,521/ Rounded off to Rs. 1,15,000/
33. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company sought to avoid the liability of insurance company to pay the compensation amount on the ground that the offending vehicle was not having any valid permit with regard to place of accident, as on the date of accident in question. In order to substantiate the said plea, insurance company has examined Mr. Afaq Sherwani, Manager Legal, ICICI Lombard General Insurance Company Ltd. as R3W1.
34. Ld. Counsel for insured/R2 vehemently argued that insurance company is not entitled to seek recovery right and it can not be allowed to avoid its liability to pay the compensation amount as there was valid permit in respect of offending vehicle for State of Haryana and it is only a case of violation of territorial area since accident in question occurred within the jurisdiction of PS. Kanjhawala in Delhi. He further argued that there has to be fundamental breach in the terms and conditions of insurance policy so as to enable the insurance company to seek recovery right in view of "Pay and Recover" principle but the violation of territorial area does not constitute fundamental breach as provided in Section 149(2) M.V. Act. In order to buttress these submissions, he has placed reliance upon the judgments reported at 2017 ACJ 1860 (Karnataka), 2017 ACJ 635(P & H), 2017 ACJ 1082(P & H), 2017 ACJ 2396(HP), 2018 ACJ 118(P & H) and 2017 ACJ 2383 (P & H).
Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 14 of 23MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018
35. In order to appreciate the rival contentions made on behalf of both the sides, it is relevant to refer to the testimony of R3W1. Said witness has deposed in his evidence by way of affidavit (Ex. R3W1/A) that there was no valid permit for the state of Delhi at the time of alleged accident with the respondents no. 1 & 2 in respect of offending truck despite the fact that said vehicle was a commercial vehicle. He relied upon attested copy of insurance policy as Ex. R3W1/1. He further deposed that during the investigation, Investigator verified the permit of offending vehicle which was found valid for State of Haryana only. He has relied upon permit verification report and exhibited the same as Ex. R3W1/2. He also deposed that despite service of notice u/o 12 Rule 8 CPC upon driver as well as on registered owner, they have failed to produce valid Permit of vehicle in question for State of Delhi. He has relied upon copy of said notice along with postal receipts as Ex. R3W1/3(colly). During his crossexamination on behalf of petitioner, he admitted that Ex. R3W1/2 did not mention that the offending vehicle did not have valid permit for the State of Delhi. Said witness has not been cross examined at all by respondent no. 1 despite grant of opportunity. Respondent no. 2 did not cross examine the said witness being exparte.
36. It is quite evident from the aforesaid discussion that the respondent no. 2 i.e. registered owner, despite being put to notice U/o 12 rule 8 CPC( Ex. R3W1/3), failed to bring on record any valid permit in respect of the offending vehicle for GNCT Delhi. Since, he failed to file any reply to said notice, an adverse inference is liable to be drawn against him that there was no valid permit in respect of offending vehicle as on the date of accident for Delhi.
37. It is also relevant to refer to the testimony of R1W1 (i.e. driver of offending vehicle), who expressed ignorance regarding availability of any valid permit in respect of offending vehicle for GNCT Delhi as on the date of accident. He admitted not to have filed any document in support of his Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 15 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 deposition that he was taking the offending vehicle to Qutubgarh for getting its cabin door repaired at the time of accident. It is interesting to note that the said witness neither disclosed the particulars of the mechanic/workshop wherefrom he was supposed to get the said vehicle repaired, nor he has specified the exact description of the job work which was to be got done with regard to cabin door of the said vehicle. In other words, mere vague plea has been raised by him in this regard. Moreover, said plea has also been taken for the first time in the chief examination by way of affidavit Ex. R1W1/A and no such plea was raised either by respondent no. 1 or by respondent no. 2 in their respective WS filed on previous occasion. Hence, the said plea also remained unsubstantiated during the course of inquiry.
38. I have gone through the aforesaid judgments cited by counsel for insured in the light of facts and circumstances appearing on record. No doubt, it has been held in cited decisions that deviation from permitted route, does not entitle insurance company to seek recovery rights from insured but in the aforesaid backdrop of the facts of the present case, the reliance placed by counsel for registered owner/insured upon the cited decisions are of no help to him. Said decisions are distinguishable on the facts and circumstances of the present case.
39. At this juncture, it would be relevant to refer to the provision contained in Section 66 (1) of M.V Act which read as under: Necessity for Permits:(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used.
40. It is quite clear from the bare perusal of the aforesaid provision that transport vehicle cannot be used in any public place, whether or not such Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 16 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 vehicle is actually carrying any passengers or goods, save in accordance with the conditions of a permit granted by Regional or State Transport Authority. In the present case, permit in respect of offending vehicle was valid only for the State of Haryana. As per the terms and conditions of the permit, it was not permissible for insured to use to allow someone to use the said vehicle ( being commercial vehicle) in any area beyond State of Haryana. Thus, there is clear violation of the terms and conditions of the route permit in respect of offending vehicle. It is nowhere the case of insured/registered owner that any of the exceptions provided in Section 66 of M.V Act is applicable in this case.
41. Hon'ble High Court of Himachal Pradesh in the matter titled as "
ICICI Lombard General Insurance Co Ltd. Vs. Ram Kumar & Ors."
reported at II (2014) ACC 287 (HP) has held that in case of violation of conditions of permit, it would be termed as breach in the conditions of insurance policy and thus, insurance company would be entitled to recovery rights as against the insured. Similar view has been taken by Hon'ble Himachal Pradesh High Court in the matter titled as " J.B. Pipes Vs. Madan Lal & Ors." reported at 2008, ACJ 574.
42. In the matter titled as " ICICI Lombard General Insurance Vs. Bijender Singh & Ors." bearing MAC. APP 385/2011 decided on 21.05.2012, Hon'ble Delhi High Court in para8 of the judgment held as under: " I had the occasion to deal with the conditions for grant of permit for a TSR plying in NCT of Delhi issued by the Transport Authority in Mahender Singh Vs. Oriental Insurance Co Ltd & Ors. MAC.
APP. 430/2010, decided on 10.05.2012 and extracted 22 conditions which are normally attached to the grant of permit. The conditions for grant include; keeping in vehicle neat and clean;
displaying particulars of identity of the driver; and wearing uniform in grey colour by the driver. In para6 and 7 Mahender Singh (supra), this Court observed as under: "6. Thus, a perusal of the condition for issuance of permit, inter alia, are that the vehicle shall be Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 17 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 kept neat and clean at the time of operation (condition N. 16): that the vehicle must be equipped with the First Aid Box; that the driver must display the particulars of his identity and photograph at the prominent place inside the windscreen (Condition No. 19); that the driver must be of good character and without any criminal record; the driver shall wear uniform in gray colour with his/her smart card based Public Service Vehicle (PSV) badge prominently displaying on the uniform (Condition No. 8).
7. Can it be said that the Insurance Company would be able to avoid liability if the vehicle is not kept clean or the driver is not wearing the uniform? It is not each and every condition of permit contravention of which would allow the Insurance Company to avoid the liability. On the other hand, a close reading of the Clause (c) to Section 149(2) (I) (a) would show that it is only the user of the transport vehicle for the purpose not allowed by the permit would enable the Insurance Company to defend the action to satisfy an award in a motor accident where the risk is covered by a policy obtained under Section 147 of the Act."
43. In the matter titled as " Future General India Insurance Co Ltd Vs. Mohd. Ibrahim & Ors., 2012 Law Suit (Del) 3322 decided on 09.10.2012, Hon'ble High Court of Delhi has held as under: "xxxxxx 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 Vs. 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.
Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 18 of 23MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 The question of statutory liability to pay the compensation was discussed in detail by a two Judge Bench of the Surpeme Court in "Skandia Insurance Company Limited Vs. Kokilaben Chandrayadan", 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 conditions 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 Vs. 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 license.
Again in "United India Insurance Company Ltd Vs. Lehru & Ors.", 2003 3 SCC 338, in para 18 of the report the Supreme Court referred to the decision in Skandia, Sohan Lal Passi and Kamla and held that even where it is proved that there was a conscious or willful breach as provided under Section 149(2)(a)(ii) of the Motor Vehicle Act, the Insurance Company would still remain liable to the innocent third party but may recover the compensation paid from the insured.
The three Judge Bench of the Supreme Court in "National Insurance Company Limited Vs. Swaran Singh & Ors.", 2004 3 SCC 297 again emphasized that the liability of the insurer to satisfy the decree passed in favour of the third party is statutory. It approved the decision in Sohan Lal Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 19 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 Passi, Kamla and Lehru. Paras 73 and 105 of the report are extracted herein under:
"73. The liability of the insurer is a statutory one. The liability of the insurer to satisfy the decree passed in favour of a third party is also statutory.
Xxxx xxxx xxxx xxxx xxxx Apart from the reasons stated herein before, the doctrine of stare decisis persuades us not to deviate from the said principle."
This Court in "Oriental Insurance Company Limited Vs. Rakesh Kumar & Others", 2012 ACJ 1268 noticed some divergence of opinion in "National Insurance Company Limited Vs. Kusum Rai & Ors.", 2006 4 SCC 250, "National Insurance Company Limited Vs. Vidhyadhar Mahariwala & Ors", 2008 12 SCC 701;
"Ishwar Chandra & Ors. Vs. The Oriental Insurance Company Limited & Ors", 2007 10 SCC 650 and "Prem Kumari & Ors. Vs. Prahalad Dev & Ors." 2008 3 SCC 193 and held that in view of the three Judge Bench decision in Sohan Lal Passi and Swaran Singh, the liability of the Insurance Company visvis the third party is statutory. If the Insurance Company successfully proves the conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner or driver, as the case may be.
In the circumstances, the Insurance Company is under obligation to satisfy the award in the first instance and to recover the amount of compensation from the driver and the owner of the offending vehicle (Respondents No. 2 and 3) in execution of this very judgment without having recourse to independent civil proceedings. Xxxxx"
44. In the light of aforesaid discussion, it is hereby held that there was no valid permit in respect of offending vehicle for State of Delhi as on the date of accident and thus, there was breach in terms and conditions of the Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 20 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 insurance policy on the part of insured i.e. respondent no. 2. Hence, insurance company is entitled to recovery rights against the respondent no. 2. (Reliance placed on decision dated 26.09.2017 in FAO no.7555/2015 in the matter titled as "MS Middle High School and another Vs. Usha and others" by Hon'ble High Court of Punjab and Haryana and as upheld by Hon'ble Apex Court in SLP no.31406/2017 titled as "MS Middle High School Vs. HDFC ERGO General Insurance Company Ltd. & others" decided on 22.11.2017). Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
45. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 1,15,000/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 25.10.12 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016). However, it would be open to the insurance company to recover the award amount from respondent no. 2 after payment of compensation amount, in accordance with law.
APPORTIONMENT
46. Statement of petitioner in terms of Clause 26 MCTAP was recorded on 06.04.2017. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the award amount, a sum of Rs. 40,000/ (Rupees Forty thousand Only)(since a sum of Rs. 17,155/ has already been spent by injured on his treatment) shall be immediately released to the petitioner through his saving bank account no. 24122010002076 with Syndicate Bank, LPS Ghevra, main Narela Road, Ghevra Village,Delhi, having IFSC Code SYNB0002412 and remaining amount alongwith interest amount be kept in the form of FDRs in Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 21 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 the multiples of Rs. 10,000/ each for a period of six months, twelve months, eighteen months and so on and so forth.
47. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(i) The interest on the fixed deposits be paid monthly to the claimant.
(ii) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimant/petitioner. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimant/petitioner.
(iii) No cheque book/Debit Card be issued to the claimant/petitioner without permission of the Court.
(iv) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victim.
(vi) Half yearly statement of account be filed by the Bank before the Tribunal.
48. During the course of hearing final arguments, claimant was asked as to whether he was entitled to exemption from deduction of TDS or not. He states on oath that he was not entitled to exemption from deduction of TDS.
49. Respondent no. 3, being insurer of offending vehicle is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the amount of Rs. 40,000/ in the aforesaid saving bank account mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimant. Copy of this Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 22 of 23 MACP No. 4577/16; FIR No. 202/08; PS. Kanjhawala DOD: 09.07.2018 award be given dasti alongwith Form no. 15G furnished by claimant (after retaining its copy on record) to counsel for insurance company. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form V in terms of MCTAP is annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 09.07.2018 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Sangeet Kumar Vs. Ravinder Kumar & Ors. Page 23 of 23