Delhi District Court
Mac Petition No. 5393/16(Old Macp No. ... vs Sh. Mohender Singh on 16 January, 2019
MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5393/16(Old MACP No. 65D/12)
Sh. Laxman,
S/o Sh. Bharat Singh,
R/o Village Firozpur,
Bangar,
District Sonepat,
Haryana. ..........Petitioner
VERSUS
1. Sh. Mohender Singh,
S/o Sh. Satya Prakash,
R/o.Village Firozpur,
Bangar, PS. Kharkhoda,
District Sonepat,
Haryana (Driver)
2. Sh. Rajesh Kumar,
S/o Sh. Satya Prakash,
R/o. 215, Chopal to main Road,
Village Madanpur Dabas,
Delhi (Registered Owner)
3. ICICI Lombard General Insurance Co. Ltd.
Space No. 315,
3rd Floor,
Aggarwal City Mall,
Pitampura, Delhi (Insurer)
............Respondents
Date of Institution : 05.07.2012 Date of Arguments : 07.01.2019 Date of Award :16.01.2019 APPEARANCES: Sh. Dinesh Shah, Adv for petitioner.
Sh. Rahul Sharma, adv for respondents no.1 & 2.
Sh. S.K. Tyagi, Adv for respondent no. 3.
Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation Laxman Vs. Mohender Singh & Ors.. Page 1 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 AWARD
1. The petitioner is seeking compensation in the wake of Detailed Accident Report (DAR) filed by police corresponding to the investigation carried out in case FIR No. 267/12 U/s 279/337/338 IPC registered at PS. Narela with regard to Motor Vehicular Accident which occurred on 17.10.2010 at about 3:00 pm at Village Ghogha Mor, Narela, Delhi, involving Car bearing registration no. DL9CK8396 (alleged offending vehicle) being driven by respondent no. 1 in rash and negligent manner. Detailed Accident Report (hereinafter called DAR) filed by police, was treated as claim petition under Section 166(4) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act').
2. According to DAR, on 17.10.2010, the petitioner alongwith his relatives, was returning to his house from Murthal by car bearing no. DL9CK 8396, which was being driven by respondent no. 1 in rash and negligent manner. At about 3:00 pm, when they reached at Village Ghogha Mor, Narela, Delhi, the aforesaid car turned turtle twice as same was being driven by its driver at high speed & in rash and negligent manner. As a result thereof, all the occupants of the said car sustained injuries. They were removed to M.B. Hospital, Pooth Khurd, Delhi, wherefrom, claimant was referred to LNJP Hospital, where he was medically examined. The aforesaid vehicle i.e. car no. DL9CK8396 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 their joint WS, the respondents no. 1 & 2 i.e. driver and registered owner have raised preliminary objection that the injured had not approached the Tribunal with clean hands and is guilty of suppressioveri and suggestiofalsi. On merits, they have claimed that the aforesaid vehicle was insured with respondent on. 3 during the period in question. They have also claimed that the accident had not occurred due to negligence of driver of the Laxman Vs. Mohender Singh & Ors.. Page 2 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 aforesaid car but due to sudden bursting of one of the tyres of the aforesaid car. They also took the plea that matter was settled between petitioner and said respondents before Panchayat soon after the accident. Based on these averments, they prayed for dismissal of the claim petition.
4. Initially, the respondent no. 3/insurance company failed to appear before this Claims Tribunal at the time of filing of DAR and it was proceeded against exparte vide order dated 05.07.12 passed by my Ld. Predecessor and exparte award qua it was passed by my Ld. Predecessor on 27.10.14. However, the insurance company subsequently moved an application u/o 9 Rule 13 CPC for setting aside exparte award. Said application was allowed on 17.08.15, subject to deposit of awarded amount and 50% of the compensation amount was ordered to be released to the claimant herein, without prejudice to the right of insurance company to recover the amount from respondents no. 1 & 2, if it was able to establish its statutory defence.
5. In its WS, the insurance company raised statutory defence as provided in Section 149(2) M.V. Act by claiming that the aforesaid vehicle was hired by injured persons, whereas the insurance policy was issued by it as a package policy for private car. In other words, it claimed that since insured was using the said vehicle for carrying passengers as commercial purpose, it constituted fundamental breach in the terms and conditions of insurance policy on his part. Thus, it is not liable to pay any compensation amount in this case. However, it has admitted that the aforesaid car was duly insured with it in the name of Sh. Rajesh Kumar (R2), vide policy no. 3001/59096981/00/000 for the period from 28.03.2010 to 27.03.2011.
6. From pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 12.09.2012:
1. Whether Laxman, Rajesh, Kuldeep and Rewti all residents of VPO Firozpur Bangar District Sonepat, Haryana suffered injuries due to road Laxman Vs. Mohender Singh & Ors.. Page 3 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 accident on 25.04.2012 at about 3:30 pm at Village Ghogha More within the jurisdiction of PS. Narela due to rash and negligent driving of vehicle i.e. Car bearing no. DL9CK8396 being driven by driver?OPP.
2. Whether the injured are 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 aforesaid issues were framed at the time when there were four injured persons and joint inquiry for all of them was being conducted by my Ld. Predecessor. The insurance company did not move any application for setting aside award qua other three claimants and that is how, the present award is being passed with regard to claimant Laxman only.
8. In this case, four witnesses i.e. PW1 Sh. Rajesh, Sh. Laxman as PW2, PW3 Sh. Ramdhari and PW4 Smt. Rewti were examined during the course of inquiry. On the other hand, the respondents no. 1 & 2 have examined three witnesses i.e. Sh. Mahender Singh (R1 himself) as R1W1, Sh. Rajesh (R2 himself) as R1W2 and R1W3 Sh. Jagdeep. Respondent no. 3 has examined one witness i.e. Sh. Dhiraj Malik, official of ICICI Lombard General Insurance Company Ltd as R3W1.
9. It may also be noted here that respondents no. 1 & 2 had moved an application u/o 18 Rule 17 r/w Section 151 CPC for further cross examination of PW1 and PW2 and also for grant of permission to lead their evidence. The said application was allowed vide detailed speaking order passed on 19.05.2018.
10. I have already heard the arguments addressed by learned Laxman Vs. Mohender Singh & Ors.. Page 4 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 counsels for the parties. I have also gone through the record. Both the sides were directed to submit their respective submissions in Form VI B, vide order dated 07.01.2019 but they have not submitted the same on record till date. My findings on the issues are as under: ISSUE NO. 1.
11. For the purpose of this issue, the testimonies of PW1, PW2 & PW4 are relevant. PW3 is the father/natural guardian of minor child namely Master Kuldeep who was also travelling in the aforesaid car at the time of accident. He was undisputedly not present in the said vehicle at the time of accident. Thus, his testimony is not at all relevant for the purpose of this case.
12. In their respective evidence by way of affidavits (Ex. PW1/A, Ex. PW2/A & Ex. PW4/A), PW1, PW2 and PW4 have deposed on identical lines in terms of averments made in the DAR petition. They have deposed that on 17.10.2010, they all were returning to their respective houses from Murthal by car bearing no. DL9CK8396, which was being driven by respondent no. 1 in rash and negligent manner. At about 3:00 pm, when they reached at Village Ghogha Mor, Narela, Delhi, the aforesaid car turned turtle twice as same was being driven by its driver at high speed & in rash and negligent manner. As a result thereof, they all had sustained injuries. They were removed to M.B. Hospital, Pooth Khurd, Delhi, where they were medically examined. FIR No. 267/12 was registered at PS. Narela with regard to accident in question.
13. PW Sh. Rajesh has relied upon his treatment record and medical bills as Ex. PW1/1(colly), whereas PW Laxman has relied upon copy of his disability report as Ex.PW2/1 and PW4 Ms. Revti has relied upon her treatment record as Ex.PW4/1. During their respective crossexamination on behalf of driver and owner, they denied the suggestions that the aforesaid car was not being driven at very high speed or that accident did not occur due to Laxman Vs. Mohender Singh & Ors.. Page 5 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 negligence on the part of driver of said car. They also denied the suggestion that accident occurred due to bursting of one of the tyres of said car, due to which its balance was lost.
14. It is evident from the testimonies of PW1, PW2 and PW4 that the respondents could not impeach their testimonies through litmus test of cross examination and said witnesses are found to have successfully withstood the test of crossexamination. Even otherwise, all the said three witnesses are the injured persons, having sustained injuries due to the accident in question. There is no reason as to why they would depose falsely against respondent no.1. Moreover, FIR No. 267/12(which is part of DAR) is also shown to have been registered on the statement of PW Laxman. The contents of said FIR would show that the complainant i.e. injured Laxman has disclosed therein the same sequence of facts leading to the accident, as deposed by him during the course of inquiry. Thus, there is no reason to disbelieve the testimonies of aforesaid witnesses made on oath.
15. Not only this, the respondent no. 1 namely Mahender S/o Sh. Satya Prakash (accused in State case) had been charge sheeted for offences punishable U/s 279/337/338 IPC by the investigating agency 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 car bearing registration no. DL9CK8396 by him. Same would also point out towards rash and negligent driving of aforesaid vehicle by respondent no. 1.
16. Apart from above, copy of MLC (which is part of DAR) of injured Laxman prepared at M.B. Hospital, Bawana, Delhi, shows that he had been removed to said hospital on 17.10.2010 at 4:09 PM 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 Laxman Vs. Mohender Singh & Ors.. Page 6 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 to the said document from the side of respondents including insurance company.
17. Moreover, in response to notice U/s 133 M.V Act (which is part of DAR) served upon respondent no. 2 i.e. regd owner of car bearing no. DL9CK 8396, he gave written reply that the said car was being driven by Sh. Mahender (R1) on 17.10.10. Same would also corroborate the testimonies of PW1, PW2 and PW4 to the extent that the aforesaid vehicle was being driven by respondent no. 1 at the time of accident.
18. No doubt, the respondents no.1 and 2 have examined themselves as R1W1 and R1W2 respectively but the testimony of R1W2 is not at all relevant for the purpose of deciding this issue as he was undisputedly not present at the time of accident. R1W1 i.e. driver of car bearing registration no. DL9CK8396, has deposed in his evidence by way of affidavit (Ex.R1W1/A) that on 16.10.2010, he had visited house of his brother situated at Village Mubarakpur Dabas, Delhi. After taking delivery of the aforesaid car, he left for his village Ferozpur Bangar, Haryana as he had to visit Bawaria Temple at Village Murthal, Sonepat, Haryana on 17.10.2010. He further deposed that on 17.10.2010, when he left for the temple, he met Jagdeep at bus stop of his village. He provided lift to him in the said vehicle, whereafter both of them went to the said temple. After performing pooja at the temple, they met claimant Laxman who was present there with his family members and was well known to him. On his request, he provided lift to them. Accordingly, they all were returning back when one of the tyres of said car got burst, as a result of which he lost control over the vehicle and it turned turtle. He further deposed that there was no fault on his part and it was a pure accident due to bursting of tyre. He further deposed that settlement was arrived between him and injured Laxman before Sarpanch of the village. He exhibited copy of said settlement dt. 18.10.2010 as Ex.R1W1/1. During his crossexamination on behalf of insurance co., he deposed that he had compounded the criminal offences with Laxman Vs. Mohender Singh & Ors.. Page 7 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 the victim in criminal case and had paid compensation amount of Rs.25000/ to injured Laxman. He has not been crossexamined at all on behalf of claimant.
19. It is quite evident from the above discussed testimony of aforesaid witness that even he is also admitting the fact that he was driving car bearing registration no. DL9CK8396 at the time of accident and also that Laxman was travelling therein at that time. The very act of respondent no.1 in paying compensation amount to said victim while compounding the criminal offence in State case, would also corroborate the ocular testimonies of the witnesses of petitioner that the accident had occurred due to rash and negligent driving of car bearing registration no. DL9CK8396 by him. It is also relevant to note here that the respondent no.1 also pleaded his guilt in respect of offence u/s 279 IPC in the State case. It is also pertinent to note that the plea raised by respondent no.1 that accident occurred due to bursting of tyre of car, remained unsubstantiated during the course of inquiry as apart from his bald statement in this regard, no other evidence whatsoever has been led by him in this regard.
20. There is no substance in the argument raised on behalf of respondents that there is delay in registration of FIR no. 267/12 (supra) in as much as accident occurred on 17.10.2010 and FIR has been registered on 24.05.2012. It is an undisputed fact that said FIR was registered only in pursuance of directions u/s 156(3) CrPC issued by the court of ld. MM. It is also the case of respondent no.1 himself that some sort of settlement was arrived between the parties on 18.10.2010 i.e. on next day of the accident. Hence, I am of the view that aforesaid delay in registration of FIR, cannot be termed as fatal to the case of petitioner.
21. 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 Laxman Vs. Mohender Singh & Ors.. Page 8 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 basis of pre ponderence of probabilities that he had sustained grievous injuries in road accident which took place on 17.10.2010 at about 3:00 pm at Village Ghogha Mor, Narela, Delhi, due to rash and negligent driving of car bearing no. DL9CK8396 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 2.
22. 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
23. PW1 Sh. Laxman i.e. injured himself, has deposed in his evidence by way of affidavit(Ex. PW2/A) that after the accident, he was taken to M.B. Hospital, Pooth Khurd, Delhi, wherefrom, he was shifted to LNJP Hospital, where his MLC was prepared. He remained admitted in LNJP Hospital for about 6 months. He further deposed that he had sustained grievous injuries due to the accident in question. He deposed to have spent Rs.1,50,000/ on his medical treatment, special diet, conveyance and caretaking etc. During his crossexamination on behalf of respondent no.3, he admitted that except that of medical bills filed on judicial file, he had not filed any document to show that he had spent Rs.1,50,000/ on his treatment, special diet, care taking and conveyance etc. Respondents no. 1 & 2 did not crossexamine this witness on this aspect at all.
24. It is pertinent to note that the petitioner/injured has not filed any medical bill concerning his treatment for the injuries sustained by him due to Laxman Vs. Mohender Singh & Ors.. Page 9 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 the accident in question. Hence, no amount is being awarded to the petitioner under this head.
LOSS OF INCOME
25. Injured namely Sh. Laxman (PW2) has categorically deposed in his evidence by way of affidavit(Ex PW2/A) that he was aged about 55 years; he was working as Mason and was earning Rs. 15,000/ per month at the time of accident. He further deposed that sometime he used to take contract for construction of building and used to earn more than Rs. 20,000/ per month at the time of accident. During his crossexamination on behalf of respondent no. 3, he admitted that he had not filed any document to show that he was working as Raj Mistri and was earning Rs. 15,000/ per month. He denied the suggestion that he was not working as Mason. He further admitted that he was resident of VPO Firozpur Bangar, District Sonepat. He volunteered that at the time of accident, he was residing at C121, Sector - 3, Pappan Kalan, New Delhi and was working in the same locality. He admitted that he had not mentioned in his affidavit (Ex. PW2/A) that he was residing and working for gain in Delhi at the time of accident. He also admitted that in his complaint dated 24.05.12 to the police, he had not mentioned that he was residing and working in Delhi at the time of accident. He also admitted that he had not filed any document to show that he remained admitted in LNJP Hospital for 6 months. He denied the suggestion that he had not suffered any loss of income due to the accident or due to the disability suffered by him. Respondents no. 1 & 2 did not crossexamine this witness on this aspect at all.
26. The MLC(which is part of DAR) of M.B. Hospital, in respect of petitioner/injured, would reveal that he was removed to said hospital on 17.10.2010 at 4.09 pm. Said MLC shows that he had sustained multiple injuries including crush injury of left upper limb and he was referred to LNJP hospital for further management and treatment. Copies of his treatment record Laxman Vs. Mohender Singh & Ors.. Page 10 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 of LNJP hospital, would further show that he remained admitted in the said hospital from 17.10.2010 till 21.11.2010. It is mentioned therein that he had sustained crush injury of left forearm, fracture of ulna and elbow dislocation, compound grade and radial artery injury. The nature of injury opined in the aforesaid MLC, is grievous. Relevant part of testimony of PW Laxman regarding the nature of his injuries, has also gone unchallanged and uncontroverted from the side of respondents.
27. Apart from the aforesaid documents produced by 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. Nevertheless, it can not be overlooked that the petitioner had suffered crush injury of left forearm, fracture of ulna and elbow dislocation, compound grade and radial artery injury due to the accident in question. He is also shown to have sustained permanent disability to the extent of 80% in relation to left upper limb as per disability report issued by Medical Board of AIIMS. Considering the nature of injuries sustained by the petitioner and in view of the treatment record brought on record, it is presumed that he would not have been able to work at all atleast for a period of 10 months or so.
28. During the course of arguments, counsel for injured fairly conceded that for want of any cogent evidence with regard to exact avocation or monthly income of injured/petitioner, his income has to be assessed as per Minimum Wages Act applicable during the relevant period. It may be noted here that the petitioner has failed to file any document concerning 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. 5278/ per month as on the date of accident which is 17.10.2010. Thus, a sum of Rs. 52,780/ (Rs. 5278/ x 10) is awarded in favour of petitioner under this head and against the respondents.
Laxman Vs. Mohender Singh & Ors.. Page 11 of 24MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 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 PW2 has deposed in his evidence by way of affidavit(Ex. PW2/A) that he had sustained grievous injuries in the accident in question. As already noted above, his MLC (which is part of DAR) of M.B. Hospital as well as treatment record including discharge summary of LNJP Hospital, would reveal that he had suffered crush injury of left forearm, fracture of ulna and elbow dislocation, compound grade and radial artery injury in the accident. He has sustained permanent disability to the extent of 80% in relation to his left upper limb as opined by Medical Board of AIIMS. 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. 1,50,000/ towards pain and sufferings to the petitioner. (Reliance placed on "IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.2018 by Hon'ble Delhi High Court).
Laxman Vs. Mohender Singh & Ors.. Page 12 of 24MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
31. As already mentioned above, there is sufficient evidence on record to establish that he had sustained crush injury of left forearm, fracture of ulna and elbow dislocation, compound grade and radial artery injury in the accident. He has sustained permanent disability to the extent of 80% in relation to left upper limb as opined by Medical Board of AIIMS. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 1,50,000/ towards loss of general amenities and enjoyment of life to the petitioner. (Reliance placed on "IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.2018 by Hon'ble Delhi High Court).
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
32. The petitioner/injured as PW2 Laxman has deposed in his evidence by way of affidavit (Ex. PW2/A) that he had spent Rs. 1,50,000/ on medical treatment, special diet, caretaking and conveyance. During his crossexamination on behalf of respondent no. 3, he admitted not to have filed any documentary proof in this regard. Same would clearly show that the petitioner has failed to lead any cogent evidence on record in respect of amount incurred by him under the aforesaid heads. At the same time, it cannot be overlooked that he had sustained crush injury of left forearm, fracture of ulna and elbow dislocation, compound grade and radial artery injury in the accident. He has sustained permanent disability to the extent of 80% in relation to left upper limb as opined by Medical Board of AIIMS. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while Laxman Vs. Mohender Singh & Ors.. Page 13 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course 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/ each for special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
33. As already stated above, the petitioner is shown to have sustained 80% permanent disability in relation to his left upper limb. Same is quite evident from disability report dated 13.01.2014 (Ex.PW2/1) of Medical Board of AIIMS. The petitioner has also testified in this regard while examining himself as PW2 during inquiry. He has not been crossexamined by the respondents no. 1 & 2 on this aspect, whereas simple suggestion has been put to him on behalf of respondent no. 3 that he did not suffer any permanent disability due to the accident, which has been denied by him.
34. The disability report of injured would reveal that he had suffered 80% permanent disability in relation to his left upper limb as he had suffered left transhumeral amputation. There is no reason to ignore the said document even if it has not been proved by claimant during the course of inquiry by summoning the concerned member of Medical Board, for the simple reason that his disability was got assessed as per directions issued by this Claims Tribunal and no evidence in rebuttal has been led by either of the respondents so as to create any doubt on the authenticity of the said report.
35. The petitioner has claimed that he was working as Raj Mistri (mason) at the time of accident. He is shown to have suffered physical impairment to the extent of 80% in relation to his left upper limb. Thus, it Laxman Vs. Mohender Singh & Ors.. Page 14 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 would not be possible for him to engage himself in any kind of avocation, which requires movement of upper limbs. Not only this, he would also have difficulty in travelling from one place to another or even to perform his day to day activities, having sustained the aforesaid kind of physical impairment. Keeping in view the overall facts and circumstances of the case including the nature of injuries sustained by petitioner and his nature of work at the time of accident, his functional disability is taken as 40% with regard to whole body.
36. Although, injured Laxman has failed to file any documentary proof concerning his actual age at the time of accident but he has testified that he was aged 55 years at that time. Relevant portion of his testimony in this regard, has gone unchallenged and unrebutted from the side of respondent. Even otherwise, his age is mentioned as 55 years in copy of his voter ID card as available on record, which is shown to have been issued on 01.01.2011. No evidence in rebuttal has been led by either of the respondents to show that age of Laxman was not 55 years at the time of accident. Thus, his age is accepted as 55 years at the time of accident. Hence, the appropriate multiplier would be 11 in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17. The notional monthly income of petitioner has been taken as Rs. 5278/ per month as discussed above. Thus, the loss of monthly future income would be Rs. 2,112/ (rounded off) (Rs. 5278 x 40/100 ). The total loss of future income would be Rs. 3,06,663/ (rounded off) (Rs. 2112/ x 110/100 x 12 x 11). (Reliance placed on Jagdish Vs. Mohan & Ors. (2018) 4 SCC 571 and unreported decision of Hon'ble Delhi High Court in " The New India Assurance Co. Ltd. Vs. Deepak Arora & Ors.", MAC APP No. 320/2013 decided on 28.09.18). Thus, a sum of Rs. 3,06,663/ is awarded in favour of petitioner under this head.
Laxman Vs. Mohender Singh & Ors.. Page 15 of 24MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019
37. Thus, the total compensation is assessed as under:
1. Loss of income Rs. 52,780/
2. Pain and suffering Rs. 1,50,000/
3. Loss of general amenities and Rs. 1,50,000/ enjoyment of life
4. Conveyance, special diet and Rs. 25,000/ attendant charges
5. Loss of future income Rs. 3,06,663/ Total Rs. 6,84,443/ Rounded off to Rs. 6,85,000/
38. Now, the question arises as to which of the respondents is liable to pay the compensation amount as determined herein above. Counsel for insurance company sought to avoid its liability to pay the compensation amount on the ground that victim Laxman was travelling as passenger on hire and reward basis in car bearing registration no. DL9CK8396 at the time of accident in question. Hence, there was fundamental breach in the terms and conditions of the insurance policy on the part of insured and insurance company is entitled to be absolved from its liability to pay the compensation amount in this case. In order to buttress the aforesaid submissions, he heavily relied upon the testimony of R3W1 i.e. Manager (Legal) of Insurance Company examined during the course of inquiry, as also on the decision of Hon'ble Apex Court in the matter titled as " National Insurance Co Ltd. Vs. Cholleti Bharatamma", AIR 2008 SC 484.
39. On the other hand, counsel for driver and regd owner vehemently argued that the insurance company is liable to indemnify the insured as there was no fundamental breach in the terms and conditions of insurance policy on the part of insured. He contended that car bearing registration no. DL9CK 8396 was not being used for commercial purpose since victim Laxman and other injured person were offered lift by respondent no.1 as all of them were Laxman Vs. Mohender Singh & Ors.. Page 16 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 residents of same village and injured persons themselves had requested said respondent to provide lift to them when they were returning back after offering pooja at the temple.
40. In order to appreciate the rival submissions made on behalf of aforesaid respondents, it would be appropriate to discuss the testimonies of relevant witnesses on this aspect. During their respective crossexamination, PW1 and PW2 deposed that they had hired the aforesaid car to go to village Murthal by paying Rs. 800/ as rent. However, R1W1 i.e. driver of aforesaid car deposed that he had provided lift to the injured persons as well as to another villager namely Sh.Jagdeep (R1W3) on their request, while they were returning back to their village. It is interesting to note that victim Laxman did not crossexamine R1W1 at all despite grant of an opportunity. He denied the suggestion during crossexamination on behalf of insurance co. that he was using the said car on hire and reward basis or that he had charged Rs. 800/ as fare from the petitioner.
41. R1W3 namely Sh.Jagdeep has corroborated the ocular testimony of R1W1 by deposing that he had taken lift from respondent no.1 in the aforesaid car on 17.10.2010 in order to go to Bawaria Temple situated at village Murthal. He also deposed that after performing pooja at the said temple, they met with Laxman who was present alongwith his family members and was well known to respondent no.1. He also deposed that Laxman had requested respondent no.1 to take them back to village if there was vacant space available in the vehicle and his said request was allowed by respondent no.1. Consequently, all of them boarded the said car and left for the village but the vehicle met with the accident due to bursting of the tyre of the said car. During his cross examination, he denied the suggestion that he was not travelling in the said car at the time of accident or that he had deposed falsely in order to favour respondent no.1 and 2, being resident of same village.
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42. R3W1 i.e. officer of insurance co. deposed that respondent no.2 committed breach of terms of insurance policy by using the said vehicle for commercial purpose and thus, insurance co. is not liable to pay compensation amount in this case. During his crossexamination on behalf of respondents no.1 and 2, he could not disclose if any investigation was got carried out by insurance co. through its investigator with regard to facts of the accident. He admitted that he did not have personal knowledge about the manner in which accident took place and also admitted that he had not even joined the present insurance co. at the time of accident and for said reason, he did not have any occasion to go through the relevant record regarding insurance of car bearing registration no. DL9CK8396 for the period in question as well as the subsequent proceedings carried out by said insurance co. He also could not produce any document to show that aforesaid car was hired by victim Laxman on 17.10.2010 or that respondent no.2 was using the said vehicle for commercial purpose. He could not admit or deny the suggestion that victim Laxman had taken lift from respondent no.1 in the aforesaid car, while returning back from temple to village Firozpur Bangar at the time when accident took place. However, he denied the suggestion that there was no breach on the part of insured or that insurance co. was liable to pay the compensation amount, if any, in this case.
43. There is no substance in the argument raised by counsel for insurance company that respondents no.1 & 2 have not cross examined PW2 Laxman (claimant herein) on the relevant portion of his testimony wherein he deposed that he had hired the aforesaid car by paying Rs.800/ as rent, which clearly shows that the said vehicle was being used for commercial purpose. No doubt, PW2 has not been cross examined at all on behalf of said two respondents. At the same time, it is important to note that PW2 Laxman had filed petition U/s 156 (3) Cr.P.C. before the Court of Ld. M.M. Copy of said petition is available on record. A bare perusal of said petition would demonstrate that he no where claimed in the said petition that he had hired the Laxman Vs. Mohender Singh & Ors.. Page 18 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 aforesaid car for going to temple or that he had paid rent of Rs.800/ to respondent no.1. It needs no emphasis that respondent no.1 herein was also arrayed as one of the accused persons in the said petition. It is also relevant to note that PW2 Laxman no where deposed during his chief examination by way of affidavits (Ex.PW2/A and Ex.PW1/A1) that he had hired the said car by paying rent of Rs.800/ to respondent no.1. This fact assumes importance in the light of the situation when affidavits in evidence of said witness were filed on two different occasions and his both the said affidavits are completely silent on this aspect. It is only for the first time, he deposed to have hired the said car by paying Rs.800/ as rent during his cross examination on behalf of insurance company. Moreover, no definite or cogent evidence has been led either by claimant Laxman or by insurance company, which may establish even on the basis of preponderance of probabilities that the aforesaid car was actually hired by victim against payment of any charges. While saying so, I have also taken into consideration the relevant portion of cross examination of R3W1 who is the officer of insurance company, whereby he testified that he was not in a position to produce any document to show that insured was using the said car for commercial purpose at the time of accident or that said vehicle was hired by victim Laxman on 17.10.2010. Infact, he did not deny the suggestion put to him on behalf of insured that victim Laxman had taken lift in the aforesaid car from respondent no.1 while coming back from temple. Same would rather substantiate the plea raised by insured that victim was provided lift in the said vehicle and it was not being plied on hire and reward basis.
44. Counsel for insurance company vehemently argued that the respondents no.1 & 2 since did not raise the plea of victim being offered lift in the offending car, they should not be allowed to agitate the said plea by way of evidence and therefore, the relevant portions of the testimonies of R1W1 to R1W3 on this aspect, should not be considered at all since evidence beyond pleadings cannot be read while passing the award. On the other hand, counsel for insured submitted that no objection whatsoever was raised on Laxman Vs. Mohender Singh & Ors.. Page 19 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 behalf of insurance company when witnesses were examined on their behalf and strict rules of evidence do not apply in the present proceedings and thus, the testimonies of aforesaid witnesses should be taken into consideration while deciding this issue.
45. It is an undisputed fact that the relevant plea raised by respondents no.1 & 2 that victim Laxman was provided lift in car bearing registration no. DL9CK8396 at the time when it met with the accident, has been mentioned in their respective evidence by way of affidavits for the first time. However, it is equally true that the respondent no.3/ insurance company did not raise any objection when their affidavits in evidence were filed during the course of inquiry. Rather, insurance company cross examined all the three witnesses examined on behalf of R1 and R2 at length on said aspect. In this back drop, I am afraid, if the aforesaid objection raised by counsel for insurance company carries any force. Once the insurance company did not raise any objection to the filing of affidavits in evidence, containing certain facts which were not part of the pleadings of R1 & R2 and did not raise any objection at the time of examination of relevant witnesses, said objection in my considered opinion, stands waived off by it. Even otherwise, it is well settled law that strict provisions of Evidence Act are not applicable in proceedings under M.V. Act which is a social welfare legislation enacted by legislature in order to alleviate the sufferings of the victims of road accidents. Moreover, Hon'ble Apex Court has held in the case titled as "Oriental Insurance Co. Ltd. Vs. Premlata Shukla and Ors." reported at III (2007) ACC 54 (SC) as under: "XXXXX When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same Court or in a Court of Appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to approbate and reprobate.
XXXX"
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46. In view of the aforesaid discussion, the aforesaid objections raised on behalf of insurance company is hereby rejected and it is held that the whole of the testimonies of R1W1 to R1W3 are duly admissible as evidence and shall be duly considered for deciding this issue. Having said that, it is beyond doubt that the relevant portions of testimonies of R1W1 to R1W3 whereby they have testified that victim Laxman was simply provided lift in the offending car at the time of accident, have totally gone unchallenged from the side of victim as he preferred not to cross examine any of these three witnesses despite grant of opportunity. He was the best person to bring on record relevant facts by way of their cross examination, in order to show that said car was actually hired by him by paying rent of Rs.800/. Having failed to do so, I am of the considered opinion that it could not established on record that the offending car bearing registration no. DL9CK8396 was being used for hire and reward basis at the time of accident or that there was any fundamental breach in the terms and conditions of insurance policy on the part of insured/R2.
47. Apart from this, there is another reason for arriving at the aforesaid conclusion. As already noted above, there were four victims/ claimants namely Laxman, Rajesh, Kuldeep and Ms.Rewati. Common award dated 27.10.14 was passed by my Ld. Predecessor qua all the said four victims and insurance company was saddled with the liability to pay the compensation amount awarded in favour of all the four victims. The insurance company willingly deposited the compensation amount of all the victims at that point of time and preferred to press the application for setting aside said award qua victim Laxman alone. Had it been the case where the insurance company is seriously raising the plea regarding fundamental breach of terms and conditions of insurance policy on the part of insured then it ought not to have deposited the compensation amount awarded in favour of remaining three victims namely Rajesh, Kuldeep and Ms. Rewati without any objection. Hence, I am of the view that the insurance company cannot be absolved from Laxman Vs. Mohender Singh & Ors.. Page 21 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 its liability to pay the compensation amount awarded herein above in favour of fourth victim namely Laxman. It is ordered accordingly. Issue no.2 stands decided in these terms.
ISSUE NO. 3 RELIEF
48. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 6,85,000/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 05.07.2012 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, the amount of compensation of Rs. 25000/ already received by victim Laxman at the time of compounding the offence in criminal case, shall be deducted from the aforesaid amount, in view of the provision contained in Section 357(5) CrPC. The amount already deposited by insurance co. at the time of passing of award dated 27.10.2014, shall also be adjusted from the amount awarded hereinabove.
APPORTIONMENT
49. Statement of petitioner in terms of Clause 27 MCTAP was recorded. 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 awarded amount, a sum of Rs. 50,000/(Rupees Fifty Thousand Only) shall be immediately released to the petitioner through his saving bank account no. 448702010052759 with Union Bank of India, Auchandi Branch, Delhi, having IFSC Code UBIN0544876 and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 15,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
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50. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(i) 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.
(ii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
(iii) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(iv) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victim.
(v) Half yearly statement of account be filed by the Bank before the Tribunal.
51. 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 stated on oath that he was entitled to exemption from deduction of TDS and also furnished Form No. 15H on record.
52. Respondent no. 3, being insurer of offending vehicle, is directed to deposit the compensation 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. 50,000/ 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 award be given dasti alongwith Form no. 15H furnished by claimant (after Laxman Vs. Mohender Singh & Ors.. Page 23 of 24 MACP No. 5393/16 (Old No.65D/12); FIR No.267/12; PS. Narela DOD: 16.01.2019 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 IVB and Form V in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP. Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date:
Announced in the open 2019.01.17
16:31:22 +0530
Court on 16.01.2019
(VIDYA PRAKASH)
Judge MACT2 (North)
Rohini Courts, Delhi
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