Delhi District Court
Lalit Kumar vs Hemant Paswan on 28 September, 2010
IN THE COURT OF SH. DINESH BHATT,
PO,MACT(NORTH)/TIS HAZARI COURTS, DELHI
INJURY CASE:
Suit No.:214A/09
Unique ID no.:02401C0315852009
Lalit Kumar
S/o Sh. Ram Swaroop
R/o H. No. 9340, Katra Ganga Bishan,
Gali Ghorewali, Kishan Ganj,
Delhi ..........Petitioner
Versus
1. Hemant Paswan
R/o Vill. & P.O. Hisepur,
P.S. Saheb Ganj,
Distt. Muzaffarpur, Bihar
2. Sh. Gyan chand Sharma
S/o Sh. Ram Prakash
R/o 79/225, Nai Basti,
Ram Nagar, Delhi
3. Bajaj Allianz
General Insurance Co. Ltd.
GE Plaza, Air Port Road,
Suit no.:214A/09 Page1/11
Yerada, Pune ..........Respondents
Date of Institution : 04/07/2009
Date on which order was reserved : 13/09/2010
Date of Decision : 28/09/2010
APPLICATION U/s 166 & 140 OF MOTOR
VEHICLES ACT 1988 FOR GRANT OF
COMPENSATION
JUDGMENT/AWARD:
1. This is a petition for claim of compensation on account of injuries suffered by the petitioner in the accident dt. 19/01/09 caused by rash and negligent driving of respondent no. 1 within the jurisdiction of PS Sarai Rohilla.
2. Petitioner's case is that he was walking on the Ring Road opposite Kishan Ganj Subzi Mandi on 19/01/09. The offending vehicle was coming from Daya Basti, Delhi side driven by respondent no. 1 in rash and negligent manner and hit the petitioner causing him grievous injuries. The petitioner was taken to hospital where FIR was lodged and MLC was prepared.
Respondent no. 1 is the driver, respondent no. 2 the owner and respondent no. 3 the insurer.
3. Respondent no. 1 & 2 have denied the involvement of respondent no. 1 in the accident in question and have stated that as per Suit no.:214A/09 Page2/11 MLC petitioner was under the influence of liquor and therefore the present petition was not maintainable and liable to be dismissed.
4. Respondent no. 3 has admitted the insurance policy however, denied their liability.
5. From the pleadings of the parties following issues were framed for consideration:
1. Whether the petitioner sustained injuries in an accident on 19/01/09 at about 08:10 p.m. due to rash and negligent driving of offending vehicle i.e. TSR bearing registration no. DL1RK0619 by respondent no. 1?
2. Whether the petitioner is entitled to a compensation, if so, to what amount and from whom?
3. Relief.
Accident Information Report alongwith copy of FIR, MLC, site plan, seizure memo of offending vehicle, fitness certificate, driving license of respondent no. 1, mechanical inspection report of offending vehicle, copy of bail bond of respondent no. 1, and insurance of offending vehicle have been filed.
Issue wise findings: Suit no.:214A/09 Page3/11
6. Issue no. 1: PW1 has stated that he was walking on foot and was hit by the offending vehicle in rash and negligent manner causing grievous injuries on his body. He was taken to hospital where FIR was lodged and MLC was prepared.
In crossexamination PW1 has stated that he was under the influence of liquor at the time of accident in question. He denied the suggestion that he fell down on the road due to his own negligence, namely, under the influence of liquor and had received injuries due to his own fall.
RW1 is the driver of the offending vehicle and has stated that the petitioner had fallen down on the road on his own being under the influence of liquor and he had stopped his vehicle only on humanitarian ground to help the petitioner but has been falsely implicated in the case. In crossexamination he volunteered that he had merely taken the petitioner on the side of the road. He also stated that he has not filed any complaint against police officials for his wrong involvement in the accident in question. As per FIR a case U/s 279/337 had been registered against driver of the offending vehicle. As per final report U/s 173 Cr. PC Ex. PW1/1 a case U/s 279/337 had been investigated and challan filed in the court against respondent no.
1. As per MLC petitioner had received simple injuries and had been Suit no.:214A/09 Page4/11 brought to the hospital as a alleged case of road traffic accident. The petitioner has therefore proved on record that he was hit in a road traffic accident. Respondent no. 1 has admitted that he was plying his vehicle on the date of accident. It is also stated that the petitioner was also under influence of liquor and therefore was responsible for his injuries. Merely a person being under the influence of liquor cannot be a ground to presume his negligence. Respondents were required to prove that the accident in question was not caused due to their negligence. There is no evidence on record to prove the level of intoxication of the petitioner. There is also document or evidence to rule out the negligence of respondent no. 1. It is therefore, prima facie proved that the petitioner was injured in the accident in question and the accident was caused due to rash and negligent driving of respondent no. 1.
Accordingly, issue no. 1 is decided in favour of the petitioner.
7. Issue no. 2: In view of the findings of issue no. 1, the petitioner is entitled to compensation.
Petitioner has stated that he had received grievous injuries and was unable to work from 19/01/09 till 30/03/09 and had spent Rs. 1 lakh on his treatment and has suffered loss of income @ 6,000/ p.m. Suit no.:214A/09 Page5/11 Except for one medical treatment slip alongwith MLC no further treatment record has been filed on record. As per Ex. PW1/8 MLC petitioner had suffered simple injuries and had been discharged on the same day. The nature of injuries mentioned on the MLC are injuries on the forehead, nose, eyebrow, chin and cheeks and all the injuries were found to be simple from the surgical side. No bills of continued treatment/medicines is available on record. As per report U/s 173 Cr. PC a case U/s 279/337 relating to the simple injuries had been filed in the court of law.
Petitioner is accordingly, entitled to following compensation:
1. Medical expenses: Petitioner has relied on certificate of one Dr. S.M.A. Rizvi who has stated that an amount of Rs. 60,000/ was required for treatment but no supporting documents in the nature of treatment or basis of arriving at the amount being assessed by him has been proved on record. Since there is also no document for treatment as claimed accordingly, petitioner has not proved the expenses of Rs. 1 lakh which has been claimed by him in the petition. However, considering the nature of injuries a lump sum amount of Rs. 2,000/ is allowed under this head. Suit no.:214A/09 Page6/11
2. Loss of earning: Petitioner has stated that he could not work from 19/01/09 till 30/03/09, but have not produced any supporting document or evidence to support that he was not in a position to attend to his work. There is also no record to show that the petitioner was not in a fit condition to work for the period as claimed by the petitioner. Petitioner was admitted and discharged on the same day from the hospital and the nature of injuries were also simple. Accordingly, a lump sum amount of Rs. 1,000/ is allowed under this head.
3. Pain and suffering: In view of the simple nature of injury and the fact that the petitioner had been admitted in the hospital and discharged on the same day, a lump sum amount of Rs. 5,000/ is allowed under this head.
Total Rs. 2,000/ + Rs. 1,000/ + Rs. 5,000/ = Rs. 8,000/ (Rupees Eight Thousand Only).
8. LIABILITY: Respondent no. 3 insurance has stated that respondent no. 1 Suit no.:214A/09 Page7/11 driver was not authorized to drive the offending vehicle. As per one of the condition of the permit policy of the transport authority only a permit holder is authorized to drive the vehicle.
Statement of R3W1 has been recorded to this effect and have also filed certified copy of statement of one Rajesh Kumar MLO of Auto Rickshaw and Taxi Unit Unit Anand Vihar wherein the said MLO, has stated that as per terms and conditions of permit for three wheeler Auto rickshaw, only actual permit holder is authorize to drive the Auto Rickshaw and in case of death of permit holder his widow and minor children are allowed to emply an authorized driver to ply the three wheeler.
Respondent/insurance has stated that since respondent no. 1 was not a permit holder, respondent no. 2 being the owner had no authority to emply respondent no. 1 to drive the offending vehicle. This being violation of permit condition insurer would not been liable to indemnify the claim. Respondent has relied on II(2008)ACC 538 National Insurance Co. Vs Ram Rati in support of his contention. The Hon'ble High Court has held in the said case that the insurance would be entitled to escape his liability if the violation of the condition as mentioned in section 149 (2) sub section a to d are established. It has further been held that "mere use of the vehicle by a person not authorized by the permit being not the registered owner, cannot given right to the insurance company to escape its liability under section 149 Suit no.:214A/09 Page8/11 (2) of the M.V. Act when the use of a particular vehicle in itself is not in contrvention with the permit conditions".
In the present case It is not disputed that the driver/respondent no. 1 was not holding a valid driving license. R3W1 has admitted that the driver of the offending vehicle was holding a valid driving license for driving a TSR. Respondent insurance has tried to prove that respondent no. 2 had violated the terms of permit, but as per covering letter to the terms of permit part of Ex. R3W1/D, the same applied only for registration of new Rickshaws i.e. after 2003. There is nothing on record to presume that the offending vehicle was a new registered vehicle falling under the said category. The onus to prove the violation of the permit conditions was on the insurance but the same has not been discharged. Therefore, there is no violation of the terms and policy in regard to third parties which is covered U/s 149 (2) of the Motor Vehicle Act and the case is also not covered for granting recovery rights.
Accordingly, respondent no. 1 & 2 are liable to pay the compensation. Respondent no. 3 to indemnify the claim.
9. Issue no. 3 (RELIEF): While granting relief to the petitioners, interest @ 7.5 % p.a., from the date of petition till realization is also allowed on the award.
Suit no.:214A/09 Page9/11
10. In view of the above, the following award is passed: AWARD : The petition is allowed. The respondents 1 & 2 being the driver and owner are jointly and severally liable to pay the compensation.
However respondent number 3 being the insurance company shall pay a compensation of Rs. 8,000/ (Rupees Eight Thousand Only) less interim award, if any, within one month along with the interest @ 7.5 % p.a., from the date of petition till realization (excepting for the periods not specifically allowed) to the petitioners.
Compensation amount be deposited within one month from today. The amount of the petitioner be released on deposit.
11. A compliance report shall be filed by respondent no. 3 about the deposit of the award amount, as per directions alongwith a copy of the notice to the claimant and the counsel for claimant, intimating about the deposit of the cheque by 28/10/10.
12. Ahlmad is directed to prepare a separate miscellaneous file containing a copy of the petition, memo of parties, copy of award and last proceeding sheet and put the same alongwith the compliance report aforementioned on 28/10/10. Copy of the award portion be Suit no.:214A/09 Page10/11 supplied to the parties free of cost. File be consigned to Record Room.
Announced in the open court (DINESH BHATT)
on 28/09/2010 PO, MACT/Delhi
28/09/2010
Suit no.:214A/09 Page11/11