Delhi District Court
Subhash vs Sh.Praveen Kumar on 17 August, 2011
1
In The Court of Surinder Kumar Sharma
Judge Motor Accident Claim Tribunal: North East,
Karkardooma Courts, Delhi
Suit No. 110/2009
Subhash
S/o Sh. Rajender
R/o H.No. 1/774, Village Khera,
Near Swami Dayanand Hospital,
Delhi.
....... Petitioner
Vs.
1. Sh.Praveen Kumar
S/o Sh. Hakim Singh
R/o T563 D 7/1, Baljeet Nagar,
New Delhi110008.
2. Sh. Sanjev Sood
R/o D1/9, Krishna Nagar,
Delhi.
3. Sh.Shaurabh Kulshreshtha
S/o Sh. R.G. Kulshreshtha,
R/o D29, Sudershan Park,
New Delhi
Mact Suit No. 110/09 Page 1/17
2
4. Sh. Kulvinder Singh
R/o A2/7, Safdarjung Enclave,
New Delhi
5. The National Insurance Company Ltd.
RO1, 4th Floor, Jeevan Bharti Building,
Connaught Place, New Delhi
........ Respondents
Date of Institution : 19.09.2005 Date of assignment to this court : 04.11.2009 Date on which reserved for Award : 03.08.2011 Date of Award : 17.08.2011. Award
This is a petition U/s 166/140 of Motor Vehicle Act 1988 (hereinafter called the Act) filed by the petitioner against the Respondents for grant of compensation.
In brief the facts of the case as averred in the claim petition are that on 3.9.2005, the petitioner Subhash along with his friends Jitender and Kailash was sitting by the side of the road near Bhajanpura Chowk, near subway and was talking to them. At about 11.15 p.m. the offending vehicle bearing No. DL7C3540 which was being driving by its driver at a very fast speed and in the rash and Mact Suit No. 110/09 Page 2/17 3 negligent manner came from Gokalpuri side and hit the petitioner and his friends. As a result of which the petitioner sustained grievous injury on his both legs and also on the other parts of his body. The injured /petitioner was taken to GTB Hospital by the PCR Van where he was medically examined and treated. As per the petitioner, the accident took place due to the rash and negligent driving of the driver of the offending vehicle bearing No. DL7C3540.
Notice of the claim petitions was issued to the respondents. Vide order dated 8.8.2006, Respondent No.1 was proceeded as exparte.
Vide order dated 8.12.2006, on the application of the petitioner, Saurabh Kulshreshtha & Kulvinder Singh were impleaded as Respondent No.3 and Respondent No.4 and amended memo of the parties was filed by the petitioner.
Vide order dated 14.7.2010, on the application of the petitioner the National Insurance Company Ltd. was impleaded as Respondent No.5 and amended memo of the parties was filed by the petitioner.
The Respondent No.2 Sanjeev Sood appeared and filed the Written Statement stating therein that on the date of the alleged Mact Suit No. 110/09 Page 3/17 4 accident the Respondent No. 2 was not the owner of the offending vehicle i.e. Maruti Car bearing No. DL7C3540 as he had sold the said vehicle to one Dharamender Kumar on 23.6.2001 and he had handed over the possession of the vehicle to him.
It is further stated by the Respondent No. 2 in the Written Statement that Dharmendra Kumar sold the said vehicle to Kulvinder Singh on 27.11.2003 vide delivery receipt dated 27.11.2003 through Maruti True Value.
It is also stated that the offending vehicle is registered in the name of one Saurabh Kulshrestha since 25.8.2005 and hence, the Respondent No.2 is not liable to pay any claim. The Respondent No. 2 has denied the other allegations as made by the petitioner in his claim.
The Respondent No.4 Kulvinder Singh appeared and file Written Statement stating therein that he has delivered the offending vehicle to Respondent No.3 on 22.8.2005 and he has no liability in respect of the said vehicle after 22.8.205. It is also stated that Respondent No. 4 is not the registered owner of the offending vehicle and therefore, he is not liable to pay the claim. The Respondent No.4 has denied the other allegations as made by the Mact Suit No. 110/09 Page 4/17 5 petitioner in his claim.
The Respondent No.5 i.e. National Insurance Company Ltd. contested the claim by filing written statement wherein it raised the preliminary objection that there is no compliance of mandatory & statutory duty as provided u/s 134(C) and 158(6)of the Motor Vehicle Act, hence the respondent No.5 Insurance Company is not liable to pay any compensation to the petitioner for the alleged accident. It is submitted that the cover note is five years old and does not bear proper address from where it was issued nor the name of agent who has issued the same.
On the pleadings of the parties following Issues were framed by my Ld. Predecessor on 26.8.2008 :
1. Whether the petitioner proves that he suffered injuries int he road accident dated 3.2.2005, within the jurisdiction of PS Bhajanpura, Delhi due to the rash and negligent driving of Maruti car number DL7C3540 by the respondent number 1.?
2. Whether petitioner is entitled for compensation, if so, to what amount and from whom.
3. Whether the respondents no.2 and 4 prove that they are not liable to pay any compensation as they were not the owners on the Mact Suit No. 110/09 Page 5/17 6 alleged date of accident ?
4. Relief.
In order to prove his case, the petitioner Subhash has examined himself as PW1. He filed his affidavit Ex. PW1/A wherein he has supported the averments as made int he claim petition. He has also filed documents including the medical papers regarding his treatment and proved the said documents which are ex. PW1/1 to Ex. PW1/9. He also filed his disability certificate which is Ex. PW1/10.
In support of his case, Respondent No.2 Sanjeev Sood has examined five witnesses including himself as R2W1. He filed his affidavit Ex. R2W1/A stating therein that neither he was the owner of the offending vehicle nor driving the said vehicle on the date and time of the accident as he has sold the said vehicle to Respondent No. 3 Saurabh Kulshestha on 25.8.2005 and he has handed over the possession of the said vehicle to Respondent No.3 on the same day.
R2W2 is Virender Kumar Record Clerk, Transport Authority Deptt.. He has stated that as per record, the offending vehicle bearing No. DL7C3540 (Maruti Car 800) stands in the name of Sh. Saurabh Kulsheshtha. He has also brought the transfer Mact Suit No. 110/09 Page 6/17 7 application in the form of Form No. 29 and 30 dated 25.8.2005 and the photocopies of the same are Ex. R2W2/1 and Ex. R2W3/2. He also proved the disclaimer certificate as Ex. R2W2/3 and application dated 1.7.2001 along with delivery receipt which are Ex. R2W2/4 and Ex. R2W2/5.
R2W3 is Sh.Dharmendra Kumar, Asstt. Ahlmad in the court of Ms. Bhawani Sharma, M.M.North East, Karkardooma Courts, Delhi. He has brought the record of case file titled as State Vs. Praveen , FIR No. 369/05 ,u/s 279/337/338 IPC, PS Bhajanpura.
R2W4 is Dr. Puneet Mishra Associate Professor Orthopedics, GTB Hospital. He has stated that he is one of the members of Medical Board of disability certificate Ex. PW1/10. He admitted that the reassessment of the injured person Subhash is recommended by him after three years. The injured refused to continuous treatment w.e.f. 27.11.2009 and same is Ex. R2W4/1. The disability suffered by the patient was of permanent nature.
R2W5 is Dharmendra Kumar. He has stated that he has purchased the vehicle bearing No. DL7C3540 from Sanjeev Sood. He has taken the possession of the said car in the month of June 2001 and he signed the delivery receipt Ex. R2W5/1. He has Mact Suit No. 110/09 Page 7/17 8 obtained registration certificate along with the Insurance Cover of the said vehicle from Sanjeev Sood. He has also obtained transfer Form No. 29 and 30 signed from Mr.Sanjeev Sood . He has sold the said vehicle to Maruti True Value in December 2003 vide delivery receipt Ex. R2W5/2. He has handed over the Form No. 29 and 30 along with the registration certificate and Insurance Cover which he had taken from Sanjeev Sood to Maruti True Value. He further stated that at the time of selling the vehicle to Maruti True Value, the vehicle was fully insured.
In support of his case, Respondent No. 4 Kulvinder Singh has examined himself as R4W1. He stated that he is working at Rana Motors Pvt. Ltd. at A2/7, Safdarjung Enclave, New Delhi as True Value Manager. The vehicle No.DL7C3540 was sold by them to Saurabh Kulsheshstha on 22.8.2005. On the day of accident, the said vehicle was not in his possession. But the vehicle was in the possession of Saurabh Kulsheshstha Respondent No.3. He has no connection with the alleged accident. The delivery receipt is Mark R4W1/A. In support of its case, Respondent No.5 National Insurance Company has examined Sh. Ram Gulam Diwakar Administrative Mact Suit No. 110/09 Page 8/17 9 Officer of the Company. He proved the copies of the notice u/s 134 C of M.V. Act u/o 8 Rule 12 CPC sent to Respondent No.2 Sanjeev Sood, Respondent No.3 Saurabh Kulshstha and Respondent No.4 Sh. Kulvinder Singh. He stated that the cover note filed by the petitioner was not issued by his Company.
I have heard Sh. K.K. Dubey Ld. Counsel for the petitioner, Alok Chaudhary Advocate for Respondent No.2, Sh.Ashok Aggarwal Advocate for Respondent No.4 & Sh. M.P. Shahi Advocate for Respondent No.5 Insurance Company. I have also perused the file.
My findings on the issues are as under :
Issue No. 1 :
To prove this issue, the petitioner has examined as PW1. He filed his affidavit Ex. PW1/A. He has stated in his affidavit that on the day of the accident, he along with his friends Jitender and Kailash was sitting by the side of the road near Bhajanpura Chowk, near subway and was talking to them. He further stated that at about 11.15 p.m. a Maruti Car bearing No. DL7C3540 which was being driving by its driver rashly and negligently and at a very fast speed Mact Suit No. 110/09 Page 9/17 10 came from Gokalpuri side and hit him. As a result of this accident, he fell down on the road and sustained grievous injuries on his both legs and also on the other parts of his body. He further stated that his both legs got fractured in the said accident. He was taken to GTB Hospital by the PCR Van where his MLC was prepared. He further stated that the accident took place due to the rash and negligent driving of the driver of the offending vehicle bearing No. DL7C3540. Nothing could come out in the cross examination of PW1which could shake his credibility on his point. Neither the driver of the offending vehicle has cross examined PW1 nor he examined himself nor led any evidence to prove that the accident did not take place due to rash and negligent driving of the driver/Respondent no. 1 of the offending vehicle. Therefore, in view of the record of the criminal case registered at Police Station Bhajanpura vide FIR No.369/05 U/s 279/337/338 IPC for which the Respondent No.1 Praveen Kumar was charge sheeted and same is pending in the trial court, it is proved that said accident took place due to rash and negligent driving of Maruti Car bearing No. DL7C3540 being driven by Sh. Praveen Kumar Respondent No1 and the petitioner Subhash sustained injuries in the said accident. Mact Suit No. 110/09 Page 10/17 11
This issue is decided accordingly.
Issues No. 2 & 3 Both the issues are taken together as they are interrelated. As discussed above, in issue no.1 above, it is held that petitioner Subhash received injuries due to rash and negligent driving of offending vehicle bearing No. No. DL7C3540 being driven by Sh.Praveen Kumar Respondent No.1, so the petitioner Subhash is entitled for compensation.
The petitioner in his affidavit Ex. PW1/A has stated that he remained admitted in GTB Hospital for a long period i.e. from 14.7.2006 to 28.7.2006, 21.4.2007 to 25.4.2007, 22.6.2007 to 4.7.2007 and 14.11.2008 to 18.11.2008. He has undergone major operation of his both the legs four times. He has stated that he has incurred around Rs. 2,00,000/ towards his medical treatment, special diet, conveyance etc. The petitioner has filed the medical bills for Rs.2948.20 regarding his treatment. So, in view of the nature of injuries sustained by the petitioner, the cost of treatment is assessed as Rs. 25,000/ As the petitioner has sustained grievous injuries in the Mact Suit No. 110/09 Page 11/17 12 accident, so the amount of compensation on account of pain and suffering is assessed as Rs. 5,000/.
The petitioner has filed no documentary proof regarding his special diet. As, the petitioner has sustained grievous injuries due to the accident and remained admitted in the hospital for a long period, so under these circumstances, I assess the amount of compensation on account of special diet Rs. 5,000/.
The petitioner has filed no documentary proof regarding his conveyance expenditure. As, the petitioner has sustained grievous injuries due to the accident and remained admitted in the hospital for a long period, so under these circumstances, I assess the amount of compensation on account of conveyance Rs. 3,000/.
The petitioner in his affidavit Ex. PW1/A has stated that at the time of accident, he used to work as a labourer and was earning Rs.150/ per day. The petitioner has not produced any document in this regard. So, I assess the income of the petitioner on the basis of minimum wages payable to the unskilled worker at the relevant time which was Rs. 3165.90 per month say Rs. 3166/.
As per disability certificate Ex. PW1/10 the petitioner has suffered 76 % permanent locomotor impairment in both lower limbs. Mact Suit No. 110/09 Page 12/17 13 Therefore, in my view, the petitioner would not be able to work properly and thus he will not be able to earn as much as normal person can earn. In my view the disability of loss of working capacity in the present case can be taken as 75 %. Therefore, in my view the loss of income to the petitioner is Rs.2374.50 say Rs. 2375/ per month.
The of Hon'ble Supreme Court of India, in a judgment reported as IV (2007)ACC716(SC) has observed that 1/3rd is to be deducted towards miscellaneous expenses from the loss of income. This judgment pertains to the injury case. Therefore, in view of this judgment, 1/3rd has to be deducted towards miscellaneous expenses. 1/3rd of Rs.2375/ comes out to Rs. 791.66 say Rs.792/ . Hence, the future loss of income of the petitioner is Rs.1583/ per month. Therefore, loss of future income of the petitioner will be Rs. 1583 x 12=Rs.18,996/per year. As per the petitioner, at the time of accident, he was aged about 36 years. The multiplier in this case is 16 which is to be applied. Therefore, the total loss of future income of the petitioner comes Rs. 18,996 x 16 = Rs. 3,03,936/.
In view of the facts and circumstances of the present case, the compensation on account of loss of future prospects is Mact Suit No. 110/09 Page 13/17 14 estimated as Rs. 50,000/.
Therefore, I calculate the amount of the compensation payable to the petitioner as under :
i) Cost on treatment : Rs.25,000/
ii ) Pain and suffering : Rs. 5,000/
iii) Special diet : Rs. 5,000/
iv ) Conveyance : Rs.3,000/
v ) Loss of future Income : Rs.3,03,936
vi ) Loss of future prospects : Rs.50,000/
Total : Rs.3,91,936/
In the present case, on the day of the accident, the Respondent No.1 Praveen Kumar was the driver of the offending vehicle bearing No. DL7C3540.
It was contended by Ld. Counsel for the Respondent Sanjeev Sood that he is not liable to pay any compensation as he had already sold the vehicle to Respondent Saurabh Kulsheshstha. It is important to note that the accident took place on 3.9.2005 and as per the statement of R2W2 Virender Kumar Record Clerk, Transport Department the offending vehicle was registered in the name of Saurabh Kulsheshstha on 19.9.2005. This shows that on the Mact Suit No. 110/09 Page 14/17 15 day of accident, Respondent Sanjeev Sood was the registered owner of the vehicle. The Hon'ble Supreme Court in a case reported as 2003 ACJ1595 has held that when the ownership has not been transferred int he records of the Transport Department, the registered owner continues to be liable to the 3rd parties. It was also held that the person in whose possession the vehicle was, would also be liable.
It has been proved that on the date of accident Respondent Sanjeev Sood was the registered owner of the offending vehicle and Respondent Saurabh Kulsheshstha was in possession of the said offending vehicle. The Respondent No.1 Praveen Kuamr was driving the offending vehicle at the time of accident. Therefore, in view of the judgment 2003 ACJ1595 (supra) the Respondents Praveen Kumar, Sanjeev Sood and Saurabh Kulsheshstha are jointly and severally liable to pay the compensation to the petitioner. In this case, the Insurance Company i.e. Respondent No. 5 does not have any liability to pay the compensation as R5W1 Ram Gulam Diwakar has stated that the insurance cover note on record was not issued by the company.
Issue are decided accordingly.
Mact Suit No. 110/09 Page 15/17 16 Issue No. 4 (Relief ) :
In view of the findings on the issues above, a compensation of Rs. Rs.3,91,936/ is granted to petitioner along with the interest at the rate of Rs.7.5 % per annum from the date of filing of the petition till its realisation.
No order as to costs.
Copy of this award be supplied free of cost to the parties. The file be consigned to record room. Announced in open Court on 17th August 2011 (Surinder Kumar Sharma) Judge MACT :
Karkardooma Courts, Delhi Mact Suit No. 110/09 Page 16/17 17 Suit No. 110/09 Subhash vs. Praveen Kumar & Ors.
17.8.2011 Present : None.
Vide a separate Award passed today,, a compensation of Rs. Rs.3,91,936/ is granted to petitioner along with the interest at the rate of Rs.7.5 % per annum from the date of filing of the petition till its realisation, to be paid by Respondents Praveen Kumar, Sanjeev Sood and Saurabh Kulsheshstha jointly and severally.
No order as to cost.
A copy of the Award be given to the parties free of cost. The file be consigned to record room.
(Surinder Kumar Sharma) Judge MACT :
Karkardooma Courts, Delhi Mact Suit No. 110/09 Page 17/17