Delhi District Court
Sh. Subodh Dass vs Sh. Govind on 13 November, 2014
1
IN THE COURT OF SH. HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.:289/13
DATE OF INSTITUTION:08.07.2013
1. Sh. Subodh Dass
S/o Sh. Khudi Ram Dass
R/o C182, Dakshin Puri,
New Delhi110062
Also At:
C139, Gali No.5, Pandav Nagar,
Patel Nagar, Delhi110008. .......Petitioner.
Versus
1. Sh. Govind
S/o Sh. Sohan Lal
R/o EII/34344, Madangir,
New Delhi110062.
2. Sh. Sachin Mahalwal
S/o Sh. Yashbir Singh,
R/o House no. 64, Madangir,
New Delhi110062.
3. Bajaj Allianz General Insurance Company Ltd.
6 Floor, 93, Ashoka Bhawan,
th
Nehru Place, New Delhi110018 .........Respondents
Final Arguments heard on : 29.10.2014.
Award reserved for : 13.11.2014.
Date of Award : 13.11.2014.
2
AWARD
1. Vide this judgment cum award I proceed to decide the petition filed U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 9.2.2013 the petitioner was travelling in TSR no.DL1RF6788 alongwith his wife and two minor children and was going from Dakshin Puri to Pandav Nagar, Delhi and the said TSR was being driven in rash and negligent manner by respondent no.1 and the petitioner told the driver to drive at slow speed and in careful manner but the driver did not pay attention and at about 6.15pm they reached at main Ashoka Road, New Delhi and the TSR hit the Bolero car no.UK06U7677 which was parked on the left side of the road as a result of which the petitioner fell down and sustained injuries and he was taken to RML hospital.
3. It is stated that at the time of accident petitioner was 38 years of age and was in private job and was earning a sum of Rs.15,000/ per month. It is stated that the accident occurred due to rash and negligent driving of the offending vehicle by respondent no.1, the vehicle was owned by respondent no.2 and insured with respondent no.3 and as such all the respondents are jointly and severally liable to pay compensation. It is 3 prayed that Rs.Forty Lacs only alongwith interest @ 12% per annum be awarded as compensation in favour of petitioner against the respondents.
4. Respondent no.1 has not filed reply despite opportunities.
5. Respondent no.2 has filed written statement and has contested the petition on various grounds. It is stated that the vehicle no. DL1RF6788 was insured with respondent no.3 vide policy no.
OG131105183100002298 valid for the period from 03.10.2012 to 04.10.2013. The averments made on merits are denied. It is denied that respondent no.2 is liable to pay compensation.
6. Respondent no.3 has filed reply to the DAR and has contested the claim on various grounds. It is stated that the driver of vehicle in question was driving the vehicle without valid driving licence. It is denied that respondent no.3 is liable to pay compensation.
7. From the pleadings of parties following issues were framed on 17.01.2014:
1. Whether Sh. Subodh Dass sustained injuries in the accident which occurred on 9.2.2013 at about 6.15 PM in front of Kothi/House of Sh. Raj Nath Singh, Member of Parliament, New Ashoka Road, New Delhi caused by rash and negligent driving of vehicle no.DL1RF6788 being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
2.Whether the petitioner is entitled for compensation? If so, to what amount and from whom?4
3.Relief.
8. In support of his claim the petitioner examined himself as PW1. PW1 tendered his affidavit in evidence Ex.PW1/A and proved the copies of his adhar car Ex.PW1/1, three discharge summaries of Dr. RML hospital Ex.PW1/2(colly), six OPD registration cards Ex.PW1/3(colly), disability certificate Ex.PW1/4, medical bills Ex.PW1/5(colly.), receipt of Rs.250/ and quotation of Rs.3,04,900/ issued by M/s Endolite India Ltd.
Ex.PW1/6(colly).
9. Petitioner examined Sh.Kapil Kaushik, Senior Executive(Material) of Endolite India Ltd. as PW2 who proved the quotation dated 14.02.2014 issued in the name of petitioner as Ex.PW2/1 and letter of authority in his favour Ex.PW2/2.
10.Petitioner examined Dr. Vivek Jangira, Assistant Professor, Department of Orthopaedics, LHMC & Dr. RML Hospital as PW3 who stated that the disability certificate Ex.PW1/4 bears his signatures at point A and stated that as per disability certificate the patient is a case of left side post traumatic amputation above knee and his disability is 80% in relation to left lower limb. Petitioner thereafter closed his evidence.
11.On the other hand respondent no.1 examined himself as R1W1. R1W1 tendered in evidence his affidavit Ex.R1W1/A and stated that his driving licence was seized by IO in case FIR no.25/13, u/s 279/337 IPC, PS 5 Parliament Street.
12.Respondent no.3 examined Sh. Ankit Jalan, Senior Executive of the company as R3W1 who tendered in evidence his affidavit Ex.R3W1/A and proved the insurance policy as Ex.R3W1/1, driving licence verification report filed by IO Ex.R3W1/2, notice under Order 12 Rule 8 CPC issued to respondents no.1 and 2 Ex.R3W1/3 and Ex.R3W1/4 and the postal receipts Ex.R3W1/5. Respondents thereafter closed their evidence.
13.I have heard the Ld. counsel for the parties and perused the record. My findings on the specific issues are as under:
ISSUE NO. 1
14.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to rash and negligent driving by respondent no.1, the driver of offending vehicle no.DL1RF6788.
15.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it 6 becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
16. The case of the petitioner is that on 9.2.2013 he was travelling in TSR no.DL1RF6788 alongwith his wife and two minor children and was going from Dakshin Puri to Pandav Nagar, Delhi and the said TSR was being driven in rash and negligent manner by respondent no.1 and the petitioner told the driver to drive at slow speed and in careful manner but the driver did not pay attention and at about 6.15pm they reached at main Ashoka Road, New Delhi and the TSR hit the Bolero car no.UK06 U7677 which was parked on the left side of the road as a result of which the petitioner fell down and sustained injuries and he was taken to RML hospital. It is stated that case vide FIR No.25/2013, u/s 279/337 IPC was registered at PS Parliament Street. The petitioner appeared in the witness box as PW1 and adduced evidence by way of affidavit Ex.PW1/A. In the affidavit Ex.PW1/A the petitioner has reiterated the 7 manner of accident as stated in claim petition.In para 7 of the preliminary objections of written statement, respondent no.2 has stated that no such accident was caused on the alleged date, time and place due to rash and negligent driving of the vehicle no.DL1RF6788. Respondent no.1 has neither filed written statement nor he preferred to put any question to petitioner/PW1 in the cross examination. In the cross examination by respondent no.2, petitioner/PW1 stated that he hired autorickshaw at about 5.30pm from Dakshinpuri for going to Pandav Nagar near Shadipur Depot. and there were not many vehicles parked on the road of accident and apart from the Bolero vehicle which was hit by TSR there was one vehicle parked ahead of the said Bolero. Petitioner/PW1 further stated in cross examination that he had told the driver of the TSR 34 times to drive the TSR carefully and the driver assured him that he shall be driving carefully. Petitioner/PW1 further stated in cross examination that he was sitting towards left side on the passenger seat on the TSR and at the time of accident the speed of the TSR was about 5060kmph. Petitioner/PW1 further stated that the TSR driver had hit the Bolero from the front left side of TSR. In the cross examination of petitioner/PW1, respondent no.2 has given suggestion to the effect that leg of petitioner was outside the TSR and and the same hit the stationary Bolero while the TSR was in the process of crossing the said Bolero which was denied by the 8 petitioner/PW1. Respondent no.1 examined himself as R1W1 and adduced evidence by way of affidavit Ex.R1W1/A. In para 2 of the affidavit Ex.R1W1/A, respondent no.1/driver has stated that he was neither negligent nor careless in driving the TSR and he was driving the TSR with utmost care and with full control. R1W1/respondent no.1 stated in cross examination by petitioner that case vide FIR No.25/2013 had been registered against him at PS Parliament Street and the charge sheet has been filed in the said case and he is appearing in the said case before the court of Ld.MM. Apart from testimony of respondent no.1, respondents have not adduced any independent evidence to corroborate their contention that the accident took place due to negligence of petitioner. Police has filed Detailed Accident Information Report(DAR) in this case and alongwith DAR police has filed copies of FIR no.25/13, u/s 279/337 IPC, PS Parliament Street,copy of final report u/s 173 Cr.P.C., copy of MLC of petitioner prepared at RML hospital, copy of site plan, copy of seizure memo of TSR, copy of seizure memo of auto documents and driving licence of respondent no.1, copy of insurance policy of offending vehicle, copy of mechanical inspection report of offending vehicle. As per FIR case was registered on the basis of complaint of petitioner wherein he has reiterated the manner of accident as stated in the claim petition. As per Final Report u/s 173 CrPC respondent no.1 has 9 been chargesheeted for the offences u/s 279/337/338 IPC. Respondents have not adduced evidence to prove their version of accident. Thus in view of the testimony of petitioner and documents on record, the negligence of respondent no.1 has been prima facie proved. As such issue no.1 is decided in favour of the petitioner and against the respondents.
ISSUE NO. 2.
17.As issue no. 1 has been decided in favour of the petitioner, he is entitled to compensation.
COMPENSATION MEDICINES AND MEDICAL TREATMENT
18.The case of the petitioner is that after the accident on 9.2.2013 he was taken to RML Hospital from where he was discharged on 23.3.2013 and thereafter he was again admitted in RML hospital on 27.4.2013 and was discharged on 6.5.2013 and thereafter he was admitted in RML hospital again on 9.6.2013 and was discharged on 14.7.2013 and thereafter he had undergone subsequent treatment at RML hospital and the petitioner has suffered 80% permanent physical impairment in relation to left lower limb. The petitioner has filed on record discharge summaries of RML hospital Ex.PW1/2(colly.) as per which he was admitted in RML hospital on 9.2.2013 and was discharged on 23.3.2013 thereafter he was 10 admitted in RML hospital on 27.4.2013 and was discharged on 6.5.2013 and thereafter he was admitted in RML hospital on 9.6.2013 and was discharged on 14.7.2013. The petitioner has filed subsequent treatment record Ex.PW1/3(colly.). In the discharge summary of RML hospital for the period of 9.2.2013 to 23.3.2013 Ex.PW1/2(colly.), the diagnosis is mentioned as "fracture tibial tuberosity Gr.VI with segmental communited fracture left tibia/fibula with fracture left patela." In the discharge summary of RML hospital for the period of 27.4.2013 to 6.5.2013 Ex.PW1/2(colly.), the diagnosis is mentioned as "F/U/C of fracture BB Leg(Segmental) with ilizaror is insitu with CPN palsy with soft tissue defect." In the discharge summary of RML hospital for the period of 9.6.2013 to 14.7.2013 Ex.PW1/2(colly.), the diagnosis is mentioned as " old fracture with BB leg rd left with ilizaror fix insitu with infected wound left leg prox 1/3 ." The petitioner has filed on record the disability certificate issued by RML hospital dated 15.1.2014 no.139/2014RMLH(MII)/59 Ex.PW1/4 as per which the petitioner is a case of left side post traumatic amputationabove knee and his disability is 80% relative to left lower limb. The petitioner has filed on record medical bills Ex.PW1/5(colly.)The petitioner is thus awarded a sum of Rs.31451.40/ which is rounded of as Rs.31451/ towards admissible bills.
11PAIN AND SUFFERING
19.It has been held in Divisional Controller, K. S. R. T. C Vs Mahadeva Shetty and another, AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for less of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver(1969 1 All. E. R. 555) Lords Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monitory assessment."
20.The case of the petitioner is that after the accident on 9.2.2013 he was taken to RML Hospital from where he was discharged on 23.3.2013 and thereafter he was again admitted in RML hospital on 27.4.2013 and was discharged on 6.5.2013 and thereafter he was admitted in RML hospital again on 9.6.2013 and was discharged on 14.7.2013 and thereafter he had undergone subsequent treatment at RML hospital and the petitioner has suffered 80% permanent physical impairment in relation to left lower limb. The petitioner has filed on record discharge summaries of RML hospital Ex.PW1/2(colly.) and subsequent treatment record Ex.PW1/3(colly.). In the discharge summary of RML hospital for the 12 period of 9.2.2013 to 23.3.2013 Ex.PW1/2(colly.), the diagnosis is mentioned as "fracture tibial tuberosity Gr.VI with segmental communited fracture left tibia/fibula with fracture left patela." In the discharge summary of RML hospital for the period of 27.4.2013 to 6.5.2013 Ex.PW1/2(colly.), the diagnosis is mentioned as "F/U/C of fracture BB Leg(Segmental) with ilizaror is insitu with CPN palsy with soft tissue defect." In the discharge summary of RML hospital for the period of 9.6.2013 to 14.7.2013 Ex.PW1/2(colly.), the diagnosis is mentioned as " old fracture with BB leg rd left with ilizaror fix insitu with infected wound left leg prox 1/3 ." The petitioner has filed on record the disability certificate issued by RML hospital no.139/2014RMLH(MII)/59 dated 15.1.2014 Ex.PW1/4 as per which the petitioner is a case of left side post traumatic amputationabove knee and his disability is 80% relative to left lower limb. Looking at the nature of injuries sustained by the petitioner, period of hospitalization and extent of treatment the petitioner is awarded a sum of Rs.1,00,000/ (Rs.One Lac)for pain and suffering.
CONVEYANCE AND SPECIAL DIET
21. In para 9 of affidavit Ex.PW1/A the petitioner has stated that he spent Rs.1,00,000/ on treatment, special diet, conveyance etc. The contention of counsel for respondent no.3 is that the petitioner has not proved that he has incurred any expenditure on conveyance. Although the petitioner 13 has not filed documents regarding expenditure on conveyance however notice can be taken of the fact that after the accident on 9.2.2013 he was taken to RML Hospital from where he was discharged on 23.3.2013 and thereafter he was again admitted in RML hospital on 27.4.2013 and was discharged on 6.5.2013 and thereafter he was admitted in RML hospital again on 9.6.2013 and was discharged on 14.7.2013 and thereafter he has taken subsequent treatment at RML hospital. Looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that petitioner might not have been able to drive of his own or to use public conveyance and might have have hired services of private conveyance and might have incurred expenditure on the same. In the circumstances, a sum of Rs.10,000/(Rs.Ten Thousand only) would be just and proper for conveyance and is awarded accordingly.
22. In para 9 of affidavit Ex.PW1/A the petitioner has stated that he spent Rs.1,00,000 on treatment, special diet,conveyance etc. The contention of counsel for respondent no.3 is that the petitioner has not proved that he was advised special diet. The petitioner has not proved that he was advised special diet. However looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein,vitamins and minerals for speedy recovery and might have incurred expenses on the same. In the circumstances, a 14 sum of Rs.10,000/ (Rs.Ten Thousand) would be just and proper for special diet and is awarded accordingly.
LOSS OF INCOME
23.The contention of petitioner is that at the time of accident he was 38 years of age and was working with M/s Priya International Leather Factory at 10/4, Okhla, New Delhi and was earning a sum of Rs.15000/ per month and he has suffered 80% permanent physical impairment in relation to left lower limb and on that account he is likely to suffer loss of income.
24.In Raj Kumar VS Ajay Kumar & Anr.,(2011)1 SCC 343, Hon'ble Supreme Court has held that :
"4..........The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair,reasonable and equitable manner. The court or tribunal have to assess the damages objectively and exclude from consideration any speculation or fancy,though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as mush as he used to earn or could have earned 15 as much as he used to earn or could have earned. Thus tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6.Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a humanbeing. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is till able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995('Disabilities Act' for short). But if any of the 16 disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''.
"8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings(by applying the standard multiplier method used to determine loss of dependency)."
25.As per the above judgment, the petitioner has to be compensated for loss of functional disability i.e. loss of earning capacity on account of accident taking into consideration the avocation of the petitioner.
26.In the claim petition, the petitioner has stated that at the time of accident he was working with M/s Priya International Leather Factory and was earning Rs.15,000/pm and in para 2 of affidavit Ex.PW1/A, the petitioner has reiterated the contents of claim petition regarding his employment and income. Petitioner/PW1 stated in cross examination that at the time of accident he was working with M/s Priya International Leather Factory as Drawing Man and was drawing salary of Rs.15000/pm. The petitioner examined Dr.Vivek Jangira as PW3 who stated that the disability certificate Ex.PW1/4 is signed by him. PW3 stated in cross examination 17 by respondent no.3 that the patient/petitioner can perform desk job however he will have difficulty in walking, squatting and sitting crossed legs.
27.The contention of counsel for respondent no.3 is that in the cross examination the petitioner has stated that he was working as drawing man with M/s Priya International Leather Factory and nature of job of drawing man is desk job and as per testimony of PW3, the petitioner can perform desk job and on that account, petitioner is not likely to suffer any loss of income due to disability acquired by him.
28.The petitioner /PW1stated in cross examination that he was working with M/s Priya International Leather Factory as Drawing Man and was drawing salary of Rs.15000/pm. The petitioner/PW1 further stated in cross examination that he has not filed any document of his employment/income on record. Thereafter in the cross examination, petitioner/PW1 stated that after the accident he is not working with M/s Priya International Leather Factory. Petitioner/PW1 further stated in cross examination that no termination letter was issued to him by M/s Priya International Leather Factory. Petitioner/PW1 further stated in cross examination that his services have not been terminated by M/s Priya International Leather Factory. Thereafter petitioner/PW1 stated in cross examination that he will join his duties after having artificial prosthesis. 18 The petitioner has not examined any witness from his employer in order to prove the nature of his job and his income and that on account of the disability acquired by him he will not be able to perform his job which he was performing before the accident and on account of disability his services have been terminated or his future income has been jeopardised on account of the fact that he will not be able to perform his job as before due to the disability acquired by him.
29. The petitioner has not proved from his employer that after the accident the petitioner has not attended his duties and is not being paid any amount. The petitioner has also not proved the duration for which he could not attend his duties and that he was not paid wages for the said period or that he will suffer loss of leave which was encashable at any stage of his career.
30.The petitioner/PW1 admitted in cross examination that his services have not been terminated by M/s Priya International Leather Factory. Thereafter he stated in the cross examination that he will join his duties after having artificial prosthesis. The petitioner has not adduced evidence to the effect that he has suffered loss of job due to the disability acquired in this accident. Rather as per testimony of petitioner/PW1 he has not joined the job as he is awaiting acquisition of artificial prosthesis. The petitioner has also not proved that he is not performing the desk nature of 19 job and on account of disability acquired by him he is likely to suffer loss of income. The petitioner has not proved that on account of disability acquired by him he is likely to suffer loss of income as per ratio laid by Hon'ble Supreme Court in Raj Kumar VS Ajay Kumar & Anr.(Supra). Although the petitioner has not proved that he will suffer loss of income on account of disability acquired by him however notice can be taken of the fact that the petitioner has suffered left side post traumatic amputation above knee and as per testimony of PW3 the petitioner will have difficulty in walking, squatting and sitting crossed legs. Hence the petitioner will suffer inconvenience in walking, squatting and sitting crossed legs and his efficiency in any activity involving extensive movement shall be reduced and the petitioner will be put to inconvenience. In the circumstances, the petitioner is awarded Rs.2,00,000/(Rs.Two Lacs) towards the inconvenience as suffered by him due to disability sustained in this accident and consequent loss of amenities of life. Artificial Prosthesis
31.In para 10 of his affidavit Ex.PW1/A the petitioner has stated that he is suffering from amputation injury in his left leg and he visited Endolite India Ltd. and got quotation of an artificial leg of Rs.3,04,900/. The contention of counsel for respondent no.3 is that the petitioner has not proved the estimate of prosthesis and the petitioner has not examined any 20 competent person from the supplier of prosthesis and that he was advised the prosthesis, the estimate of which is submitted by the petitioner and that the said prosthesis cannot be obtained by petitioner from any govt.agency.
32.The petitioner/PW1 stated in cross examination that the quotation dated 14.2.2014 Ex.PW1/6(colly.) was issued by M/s Endolite as per their own assessment and after 14.2.2014 he is not in communication with M/s Endolite .The petitioner examined Sh.Kapil Kaushik, Senior Executive(Material), Endolite India Ltd. as PW2 who stated in cross examination that he has not personally dealt with the petitioner and he is working as Senior Material Executive and quotations are not prepared by him and he has no personal knowledge of the case. PW2 further stated in cross examination that no record of assessment of patient is prepared in their office and they prepare only the quotation. PW2 stated that they have not maintained visit details or records of petitioner and also do not maintain record of patients who approach for quotations and they only prepare quotations. PW2 further stated that there are many kinds of prosthesis. PW2 further stated that they do not have any patient history of petitioner. PW2 further stated in cross examination that quotation Ex.PW2/1 has not been prepared on the advice of any doctor. PW2 further stated in cross examination that there has been no communication 21 of their office with Sh.Subodh Dass after preparation of quotation Ex.PW2/1. As per testimony of PW2 many kinds of prosthesis are available for different kind of disabilities. As per testimony of PW2 he does not deal with the patients directly and he has no personal knowledge of the case. The petitioner has not examined any competent person who could depose that the particular kind of prosthesis the estimate of which is Ex.PW1/6(colly.) as submitted is the only prosthesis suitable in the case of petitioner and no other prosthesis would be suitable for the petitioner. The petitioner has not proved that the prosthesis is sought to be acquired by the petitioner on the basis of any medical advise. In the estimate Ex.PW1/6(colly.) a note is appended to the effect that:
"1)The quotation is valid for three months from the date of issue.
2)This Quotation is not for Medico Legal Purpose."
33.The petitioner has not proved that the prosthesis of which quotation Ex.PW1/6(colly.) is submitted by him is the only prosthesis suitable for the petitioner and the prosthesis is not available free of cost from govt or any other agency. As per quotation Ex.PW1/6(colly.), it is valid only for a period of three months. The petitioner has stated in cross examination that he is not in communication with M/s Endolite after 14.2.2014. The 22 petitioner has not succeeded in proving that the quotation of the prosthesis Ex.PW1/6(colly.) which is submitted by him is the only prosthesis which is suitable for the petitioner and that the same is not available from any other source or agency or is not available free of cost from govt.agency or any other body. Hence no amount is being awarded for artificial prosthesis.
The total compensation is assessed as under:
Medicines and Medical treatment : Rs.31451/
Pain and suffering : Rs.1,00,000/
Conveyance and Special Diet : Rs.20,000/
Loss of Income : Rs.2,00,000/
Artificial Prosthesis : NIL
TOTAL : Rs.3,51,451/
RELIEF
34.The petitioner is awarded a sum of Rs.3,51,451/(Rs.Three Lacs Fifty One Thousand Four Hundred Fifty One only)with interest at the rate of 7.5% per annum in view of judgment of Rajesh and others V.Rajbir Singh(supra) from the date of filing of petition till its realisation including, interim award, if any already passed in favour of the petitioners and against the respondents.
35.For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National 23 Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:
36. 50% of the award amount shall be released to petitioner by transferring it into his savings account and remaining amount be kept in FDR in UCO Bank, Patiala House Court, New Delhi for a period of five years.
37.The respondent no.3 shall deposit the award amount directly in bank account of the petitioner at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
38.The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
39.The respondent no.3 shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to his 24 counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 28.1.2015.
APPORTIONMENT OF LIABILITY:
40.The contention of counsel for respondent no.3 is that at the time of accident respondent no.1 was not holding a driving license which authorised him to drive a TSR and the insured has committed breach of the terms and conditions of the insurance policy and on that account the insurance company is not liable to indemnify the insured. Respondent no. 3 examined Sh.Ankit Jalan, Senior Executive of insurance company as R3W1 who adduced evidence by way of affidavit Ex.R3W1/A. In para 3 of his affidavit Ex.R3W1/A, R3W1 has stated that the insured vehicle no.DL1RF6788 is a commercial passenger TSR Auto and as per the DAR filed by the police respondent no.1 was not holding a valid driving license to drive the offending vehicle which is a commercial vehicle. R3W1 stated that they issued notices u/o 12 rule 8 CPC to respondent no.1&2 Ex.R3W1/3 and Ex.R3W1/4 vide postal receipts Ex.R3W1/5. The contention of respondent no.3 is that despite notices u/o 12 rule 8 CPC, respondent no.1&2 have not produced any valid driving license possessed by respondent no.1 by which he was authorised to drive TSR. The police has filed copy of seizure memo by which copy of driving 25 license of respondent no.1 bearing no.DL0320040310675 valid for LMV NT/Motor cycle was taken in police possession. In para 4 of his affidavit Ex.R1W1/A, respondent no.1 has given his driving license no.DL0320040310675. In the cross examination by respondent no.3, respondent no.1/R1W1 stated that he has given the correct driving license number in para 4 of his affidavit Ex.R1W1/A and the said driving license was seized by the IO in case FIR No.25/13, PS Parliament Street. R3W1 has categorically stated in his affidavit Ex.R3W1/A that respondent no.1 was not holding a valid driving license to drive the offending vehicle which is a TSR and respondent no.1&2 have failed to produce any valid driving license possessed by respondent no.1 by which he was authorised to drive a TSR despite notices u/o 12 rule 8 CPC. Respondent no.2 has preferred to remain exparte and respondent no.1 has not put any question to R3W1 in the cross examination. The testimony of R3W1 to the effect that respondent no.1 did not possess valid driving license to drive the offending vehicle i.e. TSR and that respondent no.1&2 failed to produce any valid driving license possessed by respondent no.1 by which he was authorised to drive TSR despite notices u/o 12 rule 8 CPC has remained unrebutted. Respondent no.3 has succeeded in proving that respondent no.2 has committed conscious and willful breach of the terms of insurance policy by permitting respondent no.1 to drive the offending 26 vehicle without holding a valid driving license. Thus respondent no.3 has succeeded in proving that respondents no. 2 has committed conscious and willful breach of terms and conditions of insurance policy by permitting respondent no.1 to drive the offending vehicle without holding a valid driving license.
41.In National Insurance Co.Ltd. Vs Swaran Singh and Others ,AIR 2004 SC 1531 Supreme Court on Accident Claims it was held that:
"71.We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving license. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle admittedly did not hold any license and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid driving license or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving license."27
42. It was further held in National Insurance Co.Ltd. Vs Swaran Singh and Others that :
"It is a one thing to say that the insurer will be entitled to avoid its liability owing to breach of terms of a contract of insurance but it is another thing to say that the vehicle is not insured at all. It was further held that Subsection(5) of Section 149 which imposes a liability on the insurer must also be given its full effect. The Insurance Company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if the Insurance Company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of the assured."
43. Accordingly,respondent no. 3 being the insurer is directed to satisfy the award and is directed to deposit the award amount within a period of 30 days in UCO Bank, Patiala House Court Branch, New Delhi with interest at the rate of 7.5% per annum from the date of filing of petition till its realisation with right of recovery from respondent no. 1 and 2 i.e. driver and owner. In case of delay, it shall be liable to pay interest @ 12 % per annum. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. 28
44. An attested copy of the award be given to the parties free of cost.
45. File be consigned to Record Room.
Announced in the open court (Harish Dudani) on 13.11.2014. Judge: MACT1 : New Delhi