Delhi District Court
Sh. Ranbir Singh vs Sh. Surinder Singh on 5 April, 2019
MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019
IN THE COURT OF SHRI DEVENDER KUMAR JANGALA,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
MAC Petition No. 4607/16 (Old MACP No. 197/12)
Sh. Ranbir Singh,
S/o Late Sh. Suraj Bhan,
R/o 1, Mangu Panna Tatesarwala Rasta,
Village Jaunt,
Delhi. ..........Petitioner
VERSUS
1. Sh. Surinder Singh, (Registered owner)
S/o Sh. Rattan Singh,
R/o. 603, Near Hari Dass Mandir,
Jharoda Kalan,
Delhi (Driver)
2. Sh. Karambir, (Driver)
S/o Sh. Bhoop Singh,
195, Village Bankner,
PO Narela,
Delhi (Registered Owner)
3. National Insurance Co. Ltd. (Insurer)
B18, 1st Floor,
Community Centre,
Janakpuri,
New Delhi (Insurer)
4. Sh. Raj Singh,
S/o Sh. Sube Singh,
R/o Village Kanjhawala,
Ranbir Singh Vs. Surinder Singh & Ors. Page 1 of 29
MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019
Delhi. (Stated to be owner in
possession/subsequent purchaser)
............Respondents
Date of Institution : 04.07.2012 Date of Arguments : 19.03.2019 Date of Award : 05.04.2019 APPEARANCES: Sh. Kailash Sharma, Adv for petitioner.
Sh. N.K. Gupta, Ld. Counsel for respondent no. 1.
None for respondent no. 2.
Sh. V.K. Gupta, Adv for respondent no. 3.
None for respondent no.4.
Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner has sought compensation to the tune of Rs. 35,00,000/ with interest @ 18% per annum from the date of filing of petition till the date of realization, for the injuries sustained by him in Motor Vehicular Accident which occurred on 04.11.2005 at about 8:00 am at Kanjhawala Qutubgarh Road, Delhi, involving Bus bearing registration no. DL1PA1070 (alleged offending vehicle) being driven by respondent no. 1 in rash and negligent manner.
2. It is averred in the claim petition that on 04.11.2005 at about 8:00 am, the petitioner alongwith his friend Sh. Nagina left the home for Ranbir Singh Vs. Surinder Singh & Ors. Page 2 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 Kanjhawala for his personal work on his motorcycle bearing no. DL4SAQ 4049. When they reached at Y intersection at Kanjhawala Qutubgarh Road, Delhi, one Bus bearing registration no. DL1PA1070 which was plying on Route No. 701, was being driven by respondent no. 1 at very high speed in rash and negligent manner, came from opposite left side and hit against the aforesaid motorcycle. As a result thereof, they both fell down on the road and became unconscious. They were removed to Saroj Hospital, where they were medically examined. FIR No. 520/05 u/s. 279/337 IPC was registered at PS. Kanjhawala with regard to the said accident. It is further averred that the petitioner was aged 49 years; he was self employed and was earning Rs. 40,000/ per month at the time of accident. The said vehicle i.e. Bus bearing registration no. DL1PA1070 was found to be owned by respondent no. 2 and it was found to be insured with respondent no. 3 i.e. National Insurance Company Limited during the period in question.
3. In his WS, the respondent no. 1 i.e. the registered owner has raised preliminary objections that the petition is bad for nonjoinder and mis joinder of necessary party. He claimed that he has been made unnecessary party and Sh. Raj Singh S/o Sh. Sube Singh is necessary party as he was the owner of the vehicle in question. He further claimed that he had sold the aforesaid vehicle no. DL1PA1070 to Sh. Raj Singh on 05.01.05 and on the same day, possession of said vehicle was taken by Sh. Raj Singh from him. That the said Raj Singh did not get the vehicle transferred in his name Ranbir Singh Vs. Surinder Singh & Ors. Page 3 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 although he had taken all the documents concerning the vehicle from him. Thus, he has no liability to pay the compensation amount to the petitioner/injured. He had filed copy of affidavit given by Sh. Raj Singh and GPA executed by him. He also claimed that on the alleged date of accident, Sh. Raj Singh was the owner and in the possession of the aforesaid vehicle. Thus, Sh. Raj Singh is liable to pay the compensation amount to the petitioner/injured. On merits, he has simply denied the averments made in the claim petition and has prayed for its dismissal.
4. In his WS, the respondent no. 2 i.e. driver has raised preliminary objections that the accident did not take place due to his negligence. He claimed that at the time of accident, the respondent no. 1 was driving the vehicle by observing the traffic norms and rules. Moreover, the respondent no. 2 was having valid driving licence and other necessary documents. He also claimed that the aforesaid vehicle no. DL1PA1070 was insured with respondent no. 3 at the time of accident. On merits, he has simply denied the averments made in the claim petition and has prayed for its dismissal.
5. In its WS/reply, the respondent no. 3/insurance company has raised statutory defence as provided in Section 149(2) M.V. Act. It has admitted that Bus No. DL1PA1070 was insured with it, in the name of Sh. Surender Kumar (respondent no.1). On merits, the averments made in the claim petition have been simply denied for want of knowledge with prayer Ranbir Singh Vs. Surinder Singh & Ors. Page 4 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 for its dismissal.
6. In his WS, the respondent no. 4 has claimed that he has nothing to do with the accident and he had sold the offending vehicle long time back. He has denied the averments made in the claim petition and has prayed for its dismissal.
7. From pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 24.07.2013:
1. Whether the petitioner has suffered injuries in road traffic accident on 04.11.2005 at 8:15 am at Y Intersection Kanjhawala Qutubgarh Road, Delhi within the jurisdiction of PS. Kanjhawala due to rashness and negligence on the part of the respondent no. 1 who was driving the bus bearing registration no. DL1PA1070 route no. 701, owned by respondent no. 2, insured with respondent no. 3 and transferred to respondent no. 4?OPP.
2. Whether the petitioner is entitled to any compensation if so to what amount and from which of the respondents?OPP.
3. Relief.
8. In support of his claim, the petitioner has examined two witnesses i.e. himself as PW1 and PW2 Dr. Amitabh Sharma, Senior Specialist (ENT), Hindu Rao Hospital, Delhi. He closed his evidence on 08.06.18. On the other hand, the respondent no. 1 has examined one Ranbir Singh Vs. Surinder Singh & Ors. Page 5 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 witness i.e. himself as R1W1 and closed evidence on 26.10.18 through his counsel. Respondent no. 3 has examined nine witnesses i.e. R3W1 Sh. Naresh Kumar Bansal, Administrative Officer, National Insurance Co. Ltd., R3W2 Sh. Mahesh Parashar, Proprietor of Parashar Medicos, R3W3 Sh. Sachin Gauri(Son of owner of Deepak Medicos), R3W4 Sh. Om Prakash, Proprietor of Sagar Medicos, R3W5 Sh. Manish Gupta, Proprietor of Ahran Medicos, R3W6 Sh. Manmohan Sharma, Executive(Admin.), Jaipur Golden Hospital, R3W7 Sh. Dharmender Arya, Assistant Manager, National Insurance Company Limited, R3W8 Ms. Sapna, Medical Record Technician, Saroj Hospital and R3W9 Sh. Ratnesh Kumar Sharma, official from Help Line Pharmacy and closed its evidence through counsel on 14.12.18. RE of respondents no. 2 & 4 was closed vide order dated 14.12.18.
9. I have heard the arguments addressed by Ld. counsels for the parties, and also gone through the record. My findings on the issues are as under: ISSUE NO. 1.
10. For the purpose of this issue, the testimony of PW1 Sh. Ranbir Singh (injured himself) is relevant. In his evidence by way of affidavit (Ex. PW1/A), he has deposed on the lines of averments made in the claim petition. He deposed that on 04.11.2005 at about 8:00 am, he alongwith his friend Sh. Nagina left the home for Kanjhawala for his Ranbir Singh Vs. Surinder Singh & Ors. Page 6 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 personal work on his motorcycle bearing no. DL4SAQ4049. When they reached at Y intersection at Kanjhawala Qutubgarh Road, Delhi, one Bus bearing registration no. DL1PA1070 which was plying on Route No. 701 which was being driven by respondent no. 1 at very high speed and in rash and negligent manner, came from opposite left side and hit against the aforesaid motorcycle. As a result thereof, they both fell down on the road and became unconscious. They were removed to Saroj Hospital, where they were medically examined. FIR No. 520/05 u/s. 279/337 IPC was registered at PS. Kanjhawala with regard to said accident. He has relied upon the following documents: S.No. Description of documents Remarks
1. Certified copies of two khatoni Ex. PW1/1 & Ex.
PW1/22. Original Power of Attorney, Tourist Ex. PW1/3 National Permit and Receipts in respect of Truck No. RJ2G9131
3. Copy of insurance and receipts Mark A
4. Original Fitness Certificate and Ex. PW1/4 installment cash receipt
5. Original Delivery Challan of Ex. PW1/5 Motorcycle bearing no. DL4SAQ 4049 6. Copy of his DL Ex. PW1/6
7. Certified copy of chargesheet Ex. PW1/7
8. Original testing report of Saroj Ex. PW1/8 Hospital Ranbir Singh Vs. Surinder Singh & Ors. Page 7 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019
9. Original discharge slips dated Ex. PW1/9(colly) 04.11.05 and 02.12.05
10. Original receipts/bill dated Ex. PW1/10(colly) 04.11.05 to 02.12.05
11. Final bills dated 11.11.05 and Ex. PW1/11 & Ex.
03.12.05 PW1/1212. Original OPD Cards dated Ex. PW1/13(colly) 05.05.06 to 10.03.06
13. Original receipts/bills dated Ex. PW1/14(colly) 10.0106 to 29.09.06
14. Original testing reports of Ganga Ex. PW1/15(colly) Ram Hospital
15. Original retail invoice of Ganga Ex. PW1/16(colly) Ram Hospital
16. Original discharge summary of Ex. PW1/17 Ganga Ram Hospital
17. Original cash memos/bills Ex. PW1/18(colly)
18. Disability certificate Ex. PW1/19
11. During his cross examination on behalf of respondent no. 3, he deposed that the motorcycle on which he was travelling was being driven on the left side of the metal road. He further deposed that the offending bus came from opposite direction. There was no central divider on the road. There was kachha road having width of 510 feet besides the metal road. He deposed that their motorcycle had reached at the main road from a side road when the accident took place. He could not see the offending bus before the accident. He did not remember as to which portion of the bus had struck against which portion of the motorcycle. He denied the Ranbir Singh Vs. Surinder Singh & Ors. Page 8 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 suggestion that no accident took place with the said offending bus or that said bus had been falsely implicated in the present case. He further denied the suggestion that the accident took place with some other vehicle due to rash and negligent driving of the motorcycle on which he was travelling or that the motorcycle suddenly came on the main road from the side without caring for traffic on the road. He deposed that he was having DL in his name for motorcycle with gear, LMV(NT), car having validity upto 13.05.19. Respondents no. 1, 2 & 4 did not crossexamine this witness.
12. It is evident from the testimony of PW1 that the respondents, more particularly insurance company, could not impeach his testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of crossexamination. Even otherwise, PW1 himself is the injured having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against respondent no.1. Moreover, FIR No. 520/05(supra)(which is part of criminal case record) would show that bus no. DL1PA1070 and motorcycle no. DL4SAQ4049 of the victim, were found lying at the place of accident itself when ASI Dharambir alongwith Ct. Sumit Kumar had visited the spot on receipt of accidental call vide DD No. 13A registered in PS. Kanjhawala. Moreover, the respondents have not led any evidence to rebut the testimony of aforesaid witness. Thus, there is no reason to disbelieve the unchallenged and uncontroverted testimony of this witness made on oath.
Ranbir Singh Vs. Surinder Singh & Ors. Page 9 of 29MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019
13. Moreover, it is an undisputed fact that FIR No. 250/05 (supra) was registered at PS. Kanjhawala with regard to accident in question. Copy of said FIR as also the copy of charge sheet arising out of said FIR(which are part of criminal case record), would show that FIR was registered on 04.11.05 i.e. on the date of accident itself. Thus, FIR is shown to have been registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of Bus bearing registration no. DL1PA1070 at the instance of petitioner herein.
14. Not only this, the respondent no. 2 namely Karambir S/o Sh. Bhup Singh (accused in State case) has been charge sheeted for offences punishable U/s 279/338 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 Bus bearing registration no. DL1PA1070 by him. Same would also point out towards rash and negligent driving of aforesaid vehicle by respondent no. 1.
15. Apart from above, copy of MLC (which is part of criminal case record) of injured prepared at Saroj Hospital, shows that he had been removed to said hospital on 04.11.2005 at 9:55 AM 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 Ranbir Singh Vs. Surinder Singh & Ors. Page 10 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 challenge to the said document from the side of respondents including insurance company.
16. Furthermore, copy of mechanical inspection report dated 05.11.2005 (which is part of criminal case record) of Bus No. DL1PA1070 , would show that there were fresh damages i.e. its left headlight was damaged; its left side rear headlight was dented and its bumper from left side was also found dented. Likewise, copy of mechanical inspection report dated 05.11.2005 (which is also part of criminal case record) of motorcycle no. DL4SAQ4049 of victim, would show that there were fresh damages i.e. its handle was damaged; its control panel, headlight indicator and speedometer were damaged; its mudguard and fuel tank were damaged and its body from left side was also found scratched. Said reports, which have gone unchallenged and unrebutted from the side of respondents, also corroborate the ocular testimony of PW1 Sh. Ranbir Singh to the aforesaid extent. Moreover, the offending Bus is shown to have been seized from the place of accident. This fact gets strengthened from the copy of its seizure memo dated 04.11.05 (which is part of criminal case record).
17. 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 basis of pre ponderence of probabilities that he had sustained grievous injuries in road accident which took place on 04.11.2005 at about 8:00 am at Kanjhawala Qutubgarh Road, Delhi, due to rash and negligent driving of Ranbir Singh Vs. Surinder Singh & Ors. Page 11 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 Bus bearing no. DL1PA1070 by respondent no.2. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 2.
18. 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
19. PW1 Sh. Ranbir Singh i.e. injured himself, has deposed in his evidence by way of affidavit(Ex. PW1/A) that after the accident, he was taken to Saroj Hospital, where he was medically examined, Thereafter, he had taken treatment from Ganga Ram Hospital. He deposed to have sustained multiple fractures in the leg, shoulder and head. During his cross examination on behalf of respondent no. 3, he denied the suggestion that he did not incur any amount on his treatment or that medical document filed by him were false and without any prescription. Respondents no. 1, 2 & 4 did not crossexamine this witness at all.
20. It is relevant to note that the injured has relied upon medical bills to the tune of Rs. 2,09,892/ only, which are exhibited as Ranbir Singh Vs. Surinder Singh & Ors. Page 12 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 Ex. PW1/10 to Ex. PW1/12, Ex. PW1/14 & Ex. PW1/18. The insurance company to rebut the submissions of the petitioner has examined five witnesses from chemist shop i.e. R3W2 to R3W6. However, these witnesses have not supported the submission of the insurance company rather they have corroborated the version of the petitioner regarding medicine bills. The insurance company fails to rebut the medical bills relied upon by the claimant. The insurance company has fails to prove that the medical bills relied upon by the petitioner are forged. In view of the above, a sum of Rs. 2,09,892/ is awarded to the petitioner under this head.
LOSS OF INCOME
21. Injured namely Sh. Ranbir Singh (PW1) has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was Agriculturist and was self employed at the time of accident. The petitioner further deposed that he was owning 3 JCBs/dupmpers which were let out by him on rent basis. He further deposed that due to the injuries sustained by him in the accident, he could not work due to considerable period. During his crossexamination on behalf of respondent no. 3, he deposed that he did not have any document regarding his income/occupation except the copies of permit and JCB documents in his name. He volunteered that he was having three dumpers, two JCB and one truck having ten tyres. He further deposed that he had not filed any income tax return till date. Respondents no. 1, 2 & 4 did not crossexamine this witness at all.
Ranbir Singh Vs. Surinder Singh & Ors. Page 13 of 29MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019
22. The discharge summaries (Ex. PW1/9 colly) of Saroj Hospital, in respect of petitioner/injured, would reveal that he remained admitted in the said hospital from 04.11.05 till 11.11.05 and again from 02.12.05 to 03.12.05. Said treatment record would also show that the injured had sustained head injury with fracture both bones left leg with fracture right shoulder. Said treatment record has gone unchallanged and uncontroverted from the side of respondents. Not only this, he is also shown to have suffered permanent disability to the extent of 21% in relation to right upper limb and hearing impairment to the extent of 85% as per disability certificate (Ex. PW1/19) issued by Disability Board of Hindu Rao Hospital and in view of ocular testimony of PW2 Dr. Amitabh Sharma of said hospital, Considering the nature of injuries sustained by the petitioner, his permanent disability 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 5 months or so.
23. In the present case the petitioner claimed himself to be agriculturist and owning the JCB/dumpers which were let out on rent basis. However, no cogent evidence to prove this submission is brought on record. The petitioner has placed on record the document Ex. PW1/A which is permit of the vehicle bearing registration no. RJ02G9131, however, it is nowhere mentioned on the same that the said vehicle belongs to petitioner. It is thus clear that the petitioner has failed to brought on record any Ranbir Singh Vs. Surinder Singh & Ors. Page 14 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 admissible evidence to prove his profession/avocation. Therefore, in the absence of the same, his income is to be assessed as per Minimum Wages Act applicable during the relevant period. It is also not out of place to mention that the petitioner has not placed on record any document to prove his educational qualifications. Accordingly in view of above discussions, 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. 3,165/ per month as on the date of accident which is 04.11.2005. Thus, a sum of Rs. 15825/(Rs. 3,165/ x 5) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
24. 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, Ranbir Singh Vs. Surinder Singh & Ors. Page 15 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
25. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries in the accident in question. As already noted above, the petitioner had sustained head injury with fracture both bones left leg with fracture right shoulder due to the impact of the accident. He has also sustained permanent disability to the extent of 21% in relation to right upper limb and hearing impairment to the extent of 85% as per disability certificate (Ex. PW1/19). 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. 1,00,000/ towards pain and sufferings to the petitioner. (Reliance placed on "Oriental Insurance Co Ltd Vs. Manjeet Singh & Ors", bearing MAC.APP. No. 359/2009 decided on 10.04.2017 by Hon'ble Delhi High Court).
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
26. As already mentioned above, there is sufficient evidence on record to establish that he had sustained grievous injuries. His treatment record would further show that he had suffered head injury with fracture both bones left leg with fracture right shoulder due to the impact of the accident. He has also sustained permanent disability to the extent of 21% in Ranbir Singh Vs. Surinder Singh & Ors. Page 16 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 relation to right upper limb and hearing impairment to the extent of 85% as per disability certificate (Ex. PW1/19). 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. 80,000/ towards loss of general amenities and enjoyment of life to the petitioner. (Reliance placed on "Oriental Insurance Co Ltd Vs. Manjeet Singh & Ors", bearing MAC.APP. No. 359/2009 decided on 10.04.2017 by Hon'ble Delhi High Court).
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
27. Counsel for the petitioner/injured argued that petitioner/injured had spent considerable amount on special diet, conveyance and attendant but he has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that he had sustained head injury with fracture both bones left leg with fracture right shoulder due to the impact of the accident. He has also sustained permanent disability to the extent of 21% in relation to right upper limb and hearing impairment to the extent of 85% as per disability certificate (Ex. PW1/19). Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check Ranbir Singh Vs. Surinder Singh & Ors. Page 17 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 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. 10,000/ each for conveyance, special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
28. As already stated above, the petitioner is shown to have sustained permanent disability to the extent of 21% in relation to right upper limb and hearing impairment to the extent of 85% in relation to his right upper and lower limb. Same is quite evident from Disability Certificate of Medical Board of Hindu Rao Hospital, Malka Ganj, Delhi. The petitioner has also testified in this regard while examining himself as PW1 during inquiry. He has not been crossexamined by the respondents on this aspect.
29. As per the testimony of PW2 Dr. Amitabh Sharma, who was one of the members of Medical Board constituted at Hindu Rao Hospital, the petitioner was found to have suffered 21% permanent disability in relation to his right upper limb and hearing impairment to the extent of 85%. He deposed that the aforesaid Medical Board assessed the disability of the patient to be permanent in nature which was not likely to improve. He testified that Disability Certificate Ex. PW1/19 was issued by Hindu Rao Ranbir Singh Vs. Surinder Singh & Ors. Page 18 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 Hospital. He exhibited the copy of calculation sheet as Ex. PW2/1. During his crossexamination on behalf of respondent no. 3, he denied the suggestion that the disability with regard of hearing impairment as mentioned in the disability certificate, were not possible due to Motor Vehicular Accident. He deposed that since the aforesaid patient had suffered nerve damage of both the ears, there is no possibility of any improvement even with the help of any kind of surgery. He also deposed that with the help of Digital Hearing Aid as advised to the patient, he can hear like a normal person. Respondents no. 1, 2 & 4 did not crossexamine this witness at all.
30. The disability certificate(Ex. PW1/19) of injured would reveal that he had suffered 21% permanent disability in relation to his right upper limb and hearing impairment to the extent of 85%. PW2 Dr. Amitabh Sharma who prepared the disability certificate during his crossexamination deposed that with the help of digital hearing aid the petitioner can hear like a normal person. 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.
31. The petitioner in the claim petition has mentioned his age as 49 years. The claim petition was filed on 04.07.2012. The date of accident is 04.11.2005. therefore, approximately the age of petitioner on the date of Ranbir Singh Vs. Surinder Singh & Ors. Page 19 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 accident was about 42 years. Hence, the appropriate multiplier would be 14 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. 3,165/ per month as discussed above. Thus, the loss of monthly future income would be Rs. 1266/(Rs. 3,165/ x 40/100 ). The total loss of future income would be Rs. 2,97,763.2/(rounded as of Rs.2,97,800/)(Rs.1266x 140/100 x 12 x 14). (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.2,97,800/ is awarded in favour of petitioner under this head.
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 2,09,892/
2. Loss of income Rs. 15,825/
3. Pain and suffering Rs. 1,00,000/
4. Loss of general amenities and Rs. 80,000/ enjoyment of life
5. Conveyance, special diet and Rs. 30,000/ attendant charges
6. Loss of future income Rs. 2,97,800/ Total Rs. 7,33,520/ Ranbir Singh Vs. Surinder Singh & Ors. Page 20 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019
32. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company sought to avoid the liability of insurance company to pay the compensation amount on the ground that there was no valid and effective driving licence with the driver nor there was any valid and effective permit in respect of the vehicle as on the date of accident. For this purpose, he heavily relied upon the testimony of R3W1 namely Sh. Naresh Kumar Bansal, Administrative Officer of National Insurance Co. Ltd and of R3W7 namely Sh. Dharmender Arya, Assistant Manager, National Insurance Company Limited and the documents relied by them.
33. In order to appreciate the submissions made on behalf of insurance company, it would be appropriate to refer to the testimonies of R3W1 and R3W7. R3W1 has deposed that there was no valid and effective driving licence with the driver nor there was any valid and effective permit in respect of the vehicle as on the date of accident. He further deposed that despite service of notice u/o 12 Rule 8 CPC upon owner, he failed to produce any valid and effective DL in favour of R1 on record. He relied upon office copy of aforesaid notice, its original postal receipts, office copy of insurance policy of vehicle no. DL1PA1070 as Ex. R3W1/1 to Ex. R3W1/4. During his crossexamination on behalf of petitioner/injured, he Ranbir Singh Vs. Surinder Singh & Ors. Page 21 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 deposed that the medical bills of injured were got verified by their insurance company through its Investigator but same could not be verified. He admitted that no such report of Investigator of insurance company has been placed on record. He also admitted that he himself did not conduct any verification of those medical bills. He admitted that the aforesaid vehicle was duly insured with their insurance company for the period in question. He admitted that he himself did not dispatch notice u/o 12 Rule 8 CPC to driver and owner. He volunteered that same was sent by counsel for the insurance company. He admitted that no notice u/o 12 Rule 8 CPC has been sent to respondent no. 4 by their insurance company till date. He admitted that the respondent no. 1 in its WS filed in the year 2013, had claimed that the aforesaid vehicle was sold to Sh. Raj Singh who is respondent no. 4 in this case. He admitted that he had not filed any proof of delivery of notice u/o 12 Rule 8 CPC upon driver and owner. He also admitted that even the tracking reports regarding delivery/nondelivery of said notice upon driver and registered owner, have also not been placed on record and for this reason, he could not say if the said notice was actually received by driver and owner or not.
34. R3W7 has deposed in his evidence by way of affidavit Ex. RW7/A that there was no valid and effective driving licence with the driver nor there was any valid and effective permit in respect of the vehicle as on the date of accident. He further deposed that insurance company had served upon the respondents no. 1, 2 & 4 notice u/o 12 Rule 8 CPC. He Ranbir Singh Vs. Surinder Singh & Ors. Page 22 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 relied upon office copy of notice under Order 12 Rule 8 CPC dated 26.11.2018 Ex. R3W7/1, original postal receipts regarding dispatch of aforesaid notice Ex. R3W7/2 to Ex. R3W7/4, tracking reports regarding delivery of saidn otice Ex. R3W7/5 to Ex. R3W7/7, authority letter Ex. R3W7/8 and copy of insurance policy Ex. R3W1/4. During his cross examination he admitted that the alleged offending vehicle was duly insured with them during the period in question.
35. Respondent no.1 the registered owner of the offending vehicle has denied its liability stating that he had already sold the vehicle in question much prior to accident to respondent no. 4 and he is liable for the consequences of the accident. In order to prove his defence respondent no.1 the registered owner has examined himself as R1W1. He deposed on the averment made in his written statement with regard to sale of vehicle to respondent no.4. he has relied on copy of RC of offendign vehicle mark A, copy of affidavit regarding transfer of alleged offendign vehicle to respondent no.4 Sh. Raj Singh Ex. R1W1/1 and copy of GPA mark B. In the crossexamined on behalf of respondent no.3, he stated that he had not prepared any document on 05.01.2005 regarding handing over the offending vehicle to Sh. Raj Singh. He further stated that he had not intimated the concerned Transport Authority regarding the sale of alleged vehicle at any point of time. He also stated that he had also not intimated the financer of the vehicle regarding the sale of vehicle and he used to pay installment in cash. He stated that he does not have the driving licence of Ranbir Singh Vs. Surinder Singh & Ors. Page 23 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 respondent no.2 Karambir as well as permit of alleged offending vehicle on 04.11.2005.
36. It be noted that the respondent no.1 was the registered owner of the offending vehicle on the day of accident. Though he has pleaded that he had sold the vehicle to respondent no.4 much prior to the accident but he had not cared to get it transferred in the name of respondent no.4 nor he has discharged his liability by sending the notice of sale of offending vehicle to the cocerned transport authority within the statutory period or that he had obtained no objection certificate from the financer of vehicle before its sale to respondent no.4. Hence, respondent no. 1 being the registered owner of the offending vehicle shall be liable for the consequences of the accident.
37. As regards the contention of Ld.counsel for insurance company with regard to non holding of driving licence by respondent no.2, the driver of the offending vehicle at the time of accident, it be noted that alongwith the certified copies of criminal record, copy of driving licence of respondent no.1/Karamvir has been filed and the same was valid on the date of accident. By the said driving licence respondent no. 2/driver of offending vehicle was authorised to drive Bus and taxi. Thus, respondent no. 2/ driver of offending vehicle was holding valid driving licence at the time of accident.
38. With regard to contention of Ld.counsel for insurance company with Ranbir Singh Vs. Surinder Singh & Ors. Page 24 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 respect to non holding of valid permit on the date of accident, it be noted that neither respondent no.1 nor respondent no.4 who is stated to be owner in possession of the offending vehicle at the time of accident has produced on record valid permit of offending vehicle on the day of accident nor the same has been filed in the criminal case. Respondent no.1 has admitted in the crossexamination that he does not have permit of the offending vehicle as on 04.11.2005.
39. At this juncture, it would be relevant to refer to the provision contained in Section 66 (1) of M.V Act which read as under: Necessity for Permits:(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used.
40. It is quite clear from the bare perusal of the aforesaid provision that transport vehicle cannot be used in any public place, whether or not such vehicle is actually carrying any passengers or goods, save in accordance with the conditions of a permit granted by Regional or State Transport Authority. Thus, there is clear violation of the terms and conditions of the insurance policy for want of valid permit in respect of Ranbir Singh Vs. Surinder Singh & Ors. Page 25 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 offending vehicle as on the date of accident. In these circumstances, it is held that there was fundamental breach in terms and conditions of the insurance policy on the part of insured i.e. respondent no. 1. Hence, insurance company is entitled to recovery rights against the respondent no. 1. (Reliance placed on decision dated 26.09.2017 in FAO no.7555/2015 in the matter titled as "MS Middle High School and another Vs. Usha and others" by Hon'ble High Court of Punjab and Haryana and as upheld by Hon'ble Apex Court in SLP no.31406/2017 titled as "MS Middle High School Vs. HDFC ERGO General Insurance Company Ltd. & others"
decided on 22.11.2017).
ISSUE NO. 3 RELIEF
41. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 7,33,520/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 04.07.2012 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, it would be open to the insurance company to recover the award amount from the registered owner/insured (respondent no.1) after payment of compensation amount, in accordance with law. Issue no. 3 is decided accordingly.
APPORTIONMENT Ranbir Singh Vs. Surinder Singh & Ors. Page 26 of 29 MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019
42. Statement of petitioner in terms of Clause 27 MCTAP was recorded on 14.12.2018. 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.3,00,000/(Rupees Three Lacs Only) (since Rs. 2,09,892/ have been incurred by the petitioner on his medical treatment) shall be immediately released to the petitioner through his saving bank account no. 4908000100034885 with Punjab National Bank, Kanjhawala, Delhi having IFSC Code PUNB0490800 and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 10,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
43. 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.
Ranbir Singh Vs. Surinder Singh & Ors. Page 27 of 29MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019
(v) Half yearly statement of account be filed by the Bank before the Tribunal.
44. 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. 15G on record.
45. 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. 3,00,000/ 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. 15G furnished by claimant (after 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.
Ranbir Singh Vs. Surinder Singh & Ors. Page 28 of 29MACP No. 4607/16; FIR No. 520/05; PS.Kanjhawala DOD:05.04.2019 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.
DEVENDER
Announced in the open KUMAR
Digitally signed by DEVENDER
KUMAR JANGALA
Date: 2019.04.05 16:53:10
Court on 05.04.2019 JANGALA +0530
(Devender Kumar Jangala)
Judge MACT2 (North)
Rohini Courts, Delhi
Certified that above award contains 29 pages and each page is signed by me.
(DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts, Delhi Ranbir Singh Vs. Surinder Singh & Ors. Page 29 of 29