Delhi District Court
Pradeep S/O. Late Sh. Bhag Chand vs Sh. Dheeraj on 10 April, 2012
IN THE COURT OF MS. VINEETA GOYAL: PO-MACT (SOUTH-01)
SAKET COURTS, NEW DELHI
INJURY CASE
Suit no. : 882/09
Unique Case ID no. : 02403C0640602007
IN THE MATTER OF :-
Bhag Chand
S/o Sh. Sadhu Ram, @ Satare Ram @ Siddu Ram
R/o F-1663, J. J. Colony, Tigri, New Delhi
J-169, Dakshin Puri,
New Delhi-110062
Deceased through his LRs (legal heirs of deceased)
1. Pradeep S/o. Late Sh. Bhag Chand,
2. Raj Kumar S/o. Late Sh. Bhag Chand
3. Kanta D/o. Late Sh. Bhag Chand
4. Mukesh S/o. Late Sh. Bhag Chand
All resident of B-157, (New No.137)
Sanjay Colony Bhati Mines,
New Delhi-110074.
-------------------- Petitioner
Versus
1. Sh. Dheeraj
S/o Sh. Jang Bahadur,
R/o. 13, DDA Flats Tigri,
New Delhi ---------- Driver
2. Imtiyaz
S/o. Late Sh. Sagar Ahmad,
R/o. 301-DDA Flats Tigri
New Delhi ----------Owner
3. ICICI Lombard General Insurance Co. Ltd.
Zenith House,
Keshavrao, Khadya Marg, Opp. Race Course
Mahalaxmi Mumbai
Registered office; ICICI Bank Tower Bandra Kurla Compliex
Mumbai -51 ---------Insurer
--------------Respondents
Suit no.882/09 Page no. 1/6
Date of institution : 21.09.2007
Date of institution
in the present court : 26.10.2009
Date of arguments : 10.04.2012
Date of order : 10.04.2012
Present:- Sh. Radhey Shyam, counsel for petitioner.
Sh. Trilok Chand, counsel for respondent nos. 1 and 2.
Sh. M. K. Tiwari, counsel for respondent no.3
JUDGEMENT/AWARD
1. This award shall dispose of claim petition filed initially by Sh. Bhag Chand petitioner/claimant for claiming compensation for injuries sustained motor vehicular accident. However, during pendency of claim petition Sh. Bhag Chand claimant/injured subsequently died and legal representative of deceased have brought on record. Brief facts of the accident are that on 04.03.2007 at about 09.55 am, the petitioner was sitting on the pavement on the right side of pulia at DDA Flats, Tigri, New Delhi near police booth, all of sudden a bus bearing registration no.DL-4CS-8072(santro car) being driven by its driver in rash and negligent manner came from the right side of T point Tigri and hit the victim. Due to this sudden and forceful impact, petitioner sustained grievous injuries. He was removed to AIIMS Hospital where his MLC No. 23110/07 was drawn. An FIR no.198/2007 was registered with police station Sangam Vihar for this accident u/s 279/337 IPC.
2. In response to notice of petition, respondents appeared. Respondent no.1 driver and respondent no.2 owner in their joint written statement inter alia denied their liability.
3. The insurer/respondent no.3 admitted the validity of the insurance policy for the offending vehicle in the name of R2 vide policy no.3001/50959636/00/000 from 05.12.2006 to 04.12.2007.
4. From the pleadings on record the following issues were framed, by the then Ld. Presiding Officer on 25.03.08:-
Issues:
1. Whether petitioner suffered injuries in an accident which took place on 04.03.2007 at about 9.55 am involving Santro car bearing N. DL-4CS-8072 due to rash and negligent driving of respondent No.1, owned by Suit no.882/09 Page no. 2/6 respondent No.2 and insured with respondent No.3?OPP
2. Whether petitioner is entitled to compensation? If so, to what amount and against which of the respondents ?
3. Relief
5. In order to prove his case, petitioners examined Sh. Pradeep S/o Late Sh. Bhag Chand as PW1 and tendered his evidence by way of affidavit as Ex.PW1/A and supported the averments made in the petition. He also proved relevant document furnished with the claim petition and also filed medical documents along with bills.
6. No evidence was led by the respondents despite opportunity given.
7. I have heard the arguments advanced by the counsel for parties and gone through the case file and my findings on the issues are as under:-
Issue Nos. 18. The burden of proof of this issue was upon the petitioners. In order to prove this fact, petitioners got examined Pradeep as PW1. He, by virtue of affidavit Ex.PW1/A and made statement inconsonance with the averments made in the petition. He deposed on oath that accident in question was a result of rash and negligent driving of respondent No.1 and that the respondent No.1 was responsible for the accident which occurred on 04.03.2007 at about 9.55 am and FIR No. 198/2007 PS Sangam Vihar was registered. Here in the present case, no evidence whatsoever has been adduced by either of respondents to rebut the evidence adduced by petitioner nor they have cross examined the petitioner. From unrebutted oral and documentary evidence, it is established from record that petitioner sustained grievous injuries on account of negligent driving of respondent No.1. Hence, issue no.1 is decided in favour of petitioner.
Issue no. 2:
9. The counsel for insurance company argued that the maxim actio personalis moritur cum persona is applicable as a personal right of action dies with the person. When an injury has been done to any person for which recovery of damages would have been the remedy, the action extinguishes with the death of the person wrong or Suit no.882/09 Page no. 3/6 that of wrong doer. The claimants are not entitled for compensation being the legal heirs of injured Bhag Singh.
10. On the other hand counsel for petitioners claimed that in motor accident cases, the right to sue in case of death survive to the legal representative of deceased to the extent of loss of dependency including loss of estate of deceased and to the extent of loss of estate of the deceased in case of personal injury and equally survives against the legal representative of respondents. The paramount principle as enunciated under rule 1 of order 22 of Civil Procedure Code, is that is the right to sue survive, the death of the plaintiff or defendant shall not cause the suit to abate. The applicability of maxim actio personalis moritur cum persona being confined only to the claim of personal injury, without affecting the claim towards loss of estate of deceased , the effect of doctrine in motor accident cases brings out only a partial abatement as distinguished from total abatement of claim. The total abatement results where the legal representative of deceased had not brought on record.
11. Sh. Bhag Chand (now deceased) aged about 48 years sustained grievous and serious injuries on his person because of accident occurred on 04.03.2007 at 9.55 AM. The medical record filed by claimants shows that immediately after accident victim was taken to AIIMS and causality card shows that victim sustained injury at right thigh, right shoulder etc.. The victim took treatment from Lal Bahadur Shastri Hospital and diagnosed with fracture shaft of femur left. There is also evidence of victim taken treatment from Virmani Hospital. The claimants have placed on record medical bills amounting to Rs.12537/- towards actual and estimated expenses incurred by claimant during his treatment.
12. In the case of Muni Devi Vs. New India Assurance Co. Ltd. 2004ACJ-974 (Delhi ). The injured claimant having its right imputed as a result of injury had died a natural course. It was observed that the claim did not wholly abate and his parents, as partially dependant on deceased were entitled to pursue the matter and received amount awarded and award able in the shape of loss to the estate of deceased.
13. In the case of Legal Representatives of Om Prakash: Maya and others vs. Mahendra Pal and others 1989 ACJ 1114 the learned Single Judge of the Rajasthan Suit no.882/09 Page no. 4/6 High Court observed in Para 6 as under:-
I have heard both the learned Counsel and have also perused the record. It is true that personal action dies with the person, this principle of actio personalis moritur cum persona has been recognized by the Indian courts also. But the exception is contained in section 306 of the Indian Succession Act which saves the action to the extent of loss to the estate of the deceased. This has been laid down by this court in Sampati Lal v. Hari Singh, 1985 ACJ 539 (Rajasthan). Therefore, the view taken by the learned Tribunal that all the actions pertaining to the person prior to his death die with the person is not correct. Thus, the contention of Mr. Parihar that except item Nos. (a) and (c) other claims mentioned in the claim petition can still survive and it can be still tried by the learned Tribunal, appears to be correct. Thus, I uphold the contention of Mr. Parihar and hold that the claims raised by the legal representatives of the deceased in the claim petition mentioned therein except item Nos.,
(a) and (c) can be tried by the learned Tribunal."
14. In case of Jenabai V. Gujarat State Road Transport Corporation, the claimant injured died natural death during pendency of claim. It was held that the claim does not abate in toto but survives to the extent of loss caused to estate of deceased and to that extent, the legal representatives of deceased can pursue the action initiated by deceased and can claim compensation to that extent. Where the claim was made regarding loss to property as well as for pain, suffering and mental agony caused to injured personally and the claimant died during pendency of claim proceedings, the claim in respect of loss to estate would survive to the legal representative of the deceased who can be substituted to that extent, but the claim in respect of pain suffering and agony abates.
15. Respectfully and sufficiently guided above, here in the present case in hand Sh.
Bhag Chand (injured) had died in natural course during pendency of claim petition, the surviving children/petitioners are entitled to compensation and as such petitioners are awarded Rs.65,000/- inclusive of expenses incurred towards treatment (Rs.12537) and finally towards funeral which are incident of loss of estate of deceased.
Suit no.882/09 Page no. 5/6Relief
16. Petitioners are awarded to Rs.65,000/- with interest @ 7.5% per annum from the date of filing of petition i.e. 21.09.2007 till its realisation.
LIABILITY:-
17. In this case, R1 is the driver and R2 is the owner. Sh. Bhag Chand had sustained injuries on account of negligent driving of R1. R3 is insurer of R2, therefore, R3 is liable to indemnify R2 regarding compensation to be payable to the petitioners.
18. Respondent no.3/insurance company is directed to directly deposit the cheques with SBI, Saket Court branch within 30 days from today and in case of default, penal interest @ 12 % per annum shall be given from the date of filing of delay till deposit of the awarded amount on the account of petitioners. This award amount has to be equally apportioned between all the claimants.
19. Let for the identification of the petitioners, the first copy of the petition wherein photograph of the petitioners are affixed, be annexed with the award.
20. Award is passed accordingly.
21. File be consigned to record room only after compliance by insurance company by depositing the award in the manner as stated above. Be awaited for compliance for 30.05.2012.
Pronounced in the open court
on 10.04.2012 VINEETA GOYAL
PO : MACT (SOUTH-01)
10.04.2012
Suit no.882/09 Page no. 6/6