Delhi District Court
Mr. Hari Ram vs Mr Praveen Kumar on 13 November, 2018
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
Suit No. 463/12
Unique Case I.D. No.: MACT/69711/2012
Mr. Hari Ram
S/o Sh. Bhagwan Das
R/o Shanti Hotel, Gali No. 4,
Laxmi Nagar, Delhi-110092
..... Petitioner
VERSUS
1. Mr Praveen Kumar
S/o Sh. Surender Pal
R/o A-7/B, Milap Nagar,
Uttam Nagar, New Delhi
..... Driver
2. Mr. Umesh Gupta
S/o Sh. Ram Gopal Varshney
R/o 1154, Main Bazar,
Paharganj, New Delhi-110055
..... Owner
3. Bajaj Allianz GIC Ltd.
201-201A, 2nd Floor, ITL Twin Tower,
Netaji Subhash Place, Pitampura,
Delhi-110088
..... Insurer
..... Respondents
Date of Institution : 13.01.2012
Date of Arguments : 12.11.2018
Date of Judgment : 13.11.2018
JUDGEMENT
Suit No. 463/12 Hari Ram vs Praveen Kumar & Ors. 1 of 13 PLEADINGS:
1. Mr. Hari Ram, (the petitioner), age 32 years, cook by avocation, suffered 'fracture both bone left leg with fracture base of right 1st metacarpal' injuries in a motor vehicular accident that occurred at 04.45 p.m. on 14.12.2011 at T-point, near pillar No. 31, Vikas Marg, Laxmi Nagar, Delhi, while he was crossing road, when 'WagonR Car' bearing registration No. DL-9C AD 0534 (the car), allegedly driven in rash and negligent manner by the respondent No. 1, had hit him. The petitioner instituted an accident claim case in context of Detailed Accident Report (DAR) submitted by HC Devendra Kumar, Investigating Officer under section 166 (4) of the Motor Vehicles Act, 1988 (MV Act) on the basis of evidence collected during investigation of criminal case vide FIR No. 968/11, initially, registered under section 279/337 of Indian Penal Code, 1860 (IPC) at PS Shakarpur impleading driver, owner and insurer of the car as the respondent No. 1, 2 and 3 respectively.
2. The respondent No. 1 and 2, in their joint written statement, denied negligent driving of the car by the respondent No. 1. They contended that the petitioner was under influence of alcohol. They contended that the petitioner jumped railing installed in middle of divider and a vehicle had hit him and escaped. They contended that the respondent No. 1 stopped the car to see the accident. They claimed false implication.
They contended that the car was insured with the respondent No. 3. They denied liability to pay compensation to the petitioner.
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3. The respondent No. 3 / insurer, in its written statement, contended that the petitioner was crossing the road carelessly under influence of alcohol and had hit the car. It contended that the respondent No. 1 was not holding a valid and effective driving license to drive the car. It contended that driving license of the respondent No. 1 was, on verification, found fake. It pleaded breach of terms and conditions of the insurance policy. It denied liability to pay compensation. ISSUES:
4. On the pleadings, common issues were framed, as under:
(i) Whether the petitioner has suffered injuries in road side accident on 14.12.2011 involving vehicle i.e. WagonR Car bearing registration No. DL-9C AD 0534 being driven allegedly in a rash and negligent manner by the respondent No. 1?
(ii) To what amount of compensation, if any, the petitioner is entitled to and from whom?
(iii) Relief.
PETITIONER'S EVIDENCE:
5. The petitioner appeared as PW-1. He deposed, on strength of affidavit Ex.PW1/A, about manner of accident. He relied on medical bills Ex.PW1/1 (colly) and detailed accident report (DAR) Ex.PW1/2 (colly).
RESPONDENT'S EVIDENCE:
6. The respondent No. 2 appeared as R2W1. He filed evidence by way of affidavit Ex.R2W1/A. Suit No. 463/12 Hari Ram vs Praveen Kumar & Ors. 3 of 13
7. The respondent No. 3 / insurer examined Udyan Gautam, Sr. Executive (legal). He filed evidence by way of affidavit Ex.R3W1/A. He relied on Notice under Order 12 Rule 8 CPC issued to the respondent No. 2 Ex.R3W1/1, postal receipt Ex.R3W1/2, insurance policy Ex.R3W1/3, driving license of the respondent No. 1 Ex.R3W1/4, verification report qua driving license of the respondent No. 1 Ex.R3W1/5, detailed accident report (DAR) already Ex.PW1/2, investigator's report regarding driving license of the respondent No. 1 alongwith fee receipt Ex.R3W1/6, reply of Ambala Authority regarding the verification of driving license of the respondent No. 1 on RTI application Ex.R3W1/7 and report of Licensing Authority, Ambala, Haryana on the summons sent by the tribunal Ex.R3W1/8. FINAL ARGUMENTS:
8. I have heard arguments of Mr. Sanjeev Yadav, Advocate for the petitioner, Mr. Atul Yadav, Advocate for the respondent No. 2 and Mr. Mohd. Raghib, Advocate for the respondent No. 3 / insurer and examined the evidence. ISSUE NO. 1:
9. In an action founded on principle of fault liability, proof of rash and negligent driving is sina qua non. Standard of proof is not that stringent as that applied in criminal case that of proof beyond reasonable doubt. In a claim on tort liability, evidence is tested on touchstone of preponderance of probabilities. In order to discharge burden of proof, the petitioner testified as PW-1. The petitioner deposed, on strength of affidavit Ex.PW1/A, the sequence of events leading to the accident.
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10. The petitioner categorically deposed that on 14.12.2011 at about 4.45 p.m., he was crossing road at T-point, Vikas Marg, near pillar No. 31, Laxmi Nagar, Delhi, when WagonR Car bearing registration No. DL-9C AD 0534 driven in high speed without blowing horn came from the side of ITO and hit him. In his cross-examination conducted by counsel for the respondent No. 2, he deposed that a foot over bridge was there. He deposed that there was no zebra crossing for pedestrians at the place of the accident. He deposed that there was no red light when he was crossing the road. He deposed that there was no railing between the divider.
11. Ld. Counsel for the respondents submitted that the petitioner was under influence of alcohol. They referred MLC of the petitioner Ex.PW1/R2. They submitted that the petitioner was not crossing the road through foot over bridge. They submitted that the petitioner was not crossing road through zebra crossing. They submitted that the petitioner was crossing road despite there was no red light. They submitted that the accident was caused due to negligent acts of the petitioner and in any case, the petitioner contributed to the accident.
12. As regards contention that the petitioner was under
the influence of alcohol, as mentioned in MLC Ex.PW1/R2, it can be stated that mere presence of smell of alcohol in mouth of the petitioner is not sufficient to reach to finding that he was in such inebriated state that he could not control his actions or move on road. There is no scientific evidence in form of breath analyzer test or blood test regarding quantity of alcohol.
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13. As regards contention that the petitioner was not crossing the road through zebra crossing, it can be stated that the respondent No. 2 and 3 have neither shown nor confronted the petitioner with zebra crossing on road.
14. As regards contention that the petitioner was not making use of foot over bridge to cross the road is concerned, it can be stated that no driver of any motor vehicle would get license to hit any pedestrian, if he is not making use of foot over bridge and attempting to cross the road.
15. As regards contention that there was no red light when the petitioner was crossing the road, it can be stated that it is not clear whether the respondents were questioning the petitioner on the aspect of red light for pedestrian or motor vehicles at the time of the accident.
16. From the evidence of the petitioner duly corroborated by contemporary documents, it is proved that the petitioner was crossing the road on foot when he was hit by the car driven by the respondent No. 1. The petitioner is author of the case FIR. The evidence of the petitioner is in sync with his statement contained the case FIR. The respondent No. 1 was apprehended alongwith car at the place of the accident. The respondent No. 1 has neither stated nor deposed as to why he could not avoid the accident. The respondent No. 3 / insurer did not examine him to elicit anything contrary.
17. It is, therefore, proved that the respondent No. 1 was driving the car in uncontrollable speed and while driving so, he had hit the petitioner who was crossing the road.
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18. The petitioner was admitted at 05.30 p.m. on 14.12.2011 in LBS Hospital, Khichripur, Delhi-110091 as a case of road traffic accident (RTA). He had injuries on right cheek, left leg and right hand. He was eventually diagnosed to have suffered 'fracture both bone left leg with fracture base of right 1 st metacarpal'.
19. It is proved that the petitioner suffered injuries in a motor vehicular accident caused by rash and negligent driving of the car by the respondent No. 1. Accordingly, issue No. 1 is decided in favour of the petitioner and against the respondents. ISSUE NO. 2:
20. The petitioner suffered 'grievous' injury in the accident arising out of rash and negligent driving of the car by the respondent No. 1. He is entitled to just and reasonable compensation for the injury.
PAIN AND SUFFERING:
21. As noted in MLC Ex.PW1/R2, the petitioner was examined at 05.30 p.m. on 14.12.2011 in LBS Hospital, Khichripur, Delhi-110091 as a case of road traffic accident (RTA). He had 'abrasion right cheek measuring 2 x 2 cm, pain with swelling left leg 6 x 3 cm in lower 1/3 rd part and pain with swelling right hand thumb'. He received treatment as an indoor patient from Ram Lal Kundan Lal Hospital from 19.12.2011 to 22.11.2011. The nature of injury is 'grievous'. In view of nature of injury and admission period, he is awarded an amount of Rs. 25,000/- under the head of 'pain and suffering'.
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22. The petitioner proved medical expenses including physiotherapy bill in the sum of Rs. 50,294/- vide medical bills Ex.PW1/1 (colly). Accordingly, he is awarded Rs. 51,000/-
under the head of 'medical expenses'.
LOSS OF INCOME:
23. The petitioner, in the petition, stated that he was working as 'cook' in Shanti Hotel, Gali No. 4, Laxmi Nagar, Delhi at salary of Rs. 12,000/- per month. He has not stated the period during which he could not work or engage in his avocation. The petitioner, in his affidavit Ex.PW1/A, neither stated his salary nor the period during which he could not work due to the injuries suffered by him. However, in his cross- examination, he stated that he could not work for 5 months after the accident. He stated that he was getting salary in the sum of Rs. 5,000/-. The petitioner was discharged on 22.12.2011. He visited Dr. K.B. Tiwari on 13.02.2012. In view of nature of injury and treatment record, the petitioner is awarded loss of income for three months at salary of Rs. 5,000/- per month.
24. Accordingly, the petitioner is awarded (5,000 x 3) = Rs. 15,000/- under the head of 'loss of income for three months'.
SPECIAL DIET AND CONVEYANCE:
25. The petitioner claimed special diet and conveyance. However, he has neither led any evidence nor stated the expenses incurred thereon. In view of nature of injuries and admission period, he is awarded Rs. 5,000/- each under the head of 'special diet and conveyance'.
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26. The compensation awarded to the petitioner is computed, as under:
Sl. No. Head of compensation Amount
1. Pain and suffering Rs. 25,000/-
2. Medical expenses Rs. 51,000/-
3. Loss of income for 3 months Rs. 15,000/-
4. Special diet and conveyance Rs. 10,000/-
Total Rs. 1,01,000/-
LIABILITY:
27. The respondent No. 3 / insurer pleaded breach of terms and conditions of insurance policy on the ground that the respondent No. 1 was holding a fake license. It examined R3W1 Udyan Gautam, Sr. Executive (legal) in support of its case. On the other hand, the respondent No. 2 appeared as R2W1. He deposed, on strength of affidavit Ex.R2W1/A, that he had seen driving license of the respondent No. 1 and it appeared to be genuine. He deposed that he had taken driving test of the respondent No. 1 before employing him.
28. There is no dispute that the respondent No. 1 was not holding a valid and effective driving license to drive the car. Investigating Officer obtained verification report Ex.R3W1/5 from MLO, Licensing Authority, Ambala, Haryana who had verified that DL No. 35640 dated 17.03.2010 was not issued by Licensing Authority, Ambala. This report formed part of the detailed accident report (DAR) and provided to the respondent No. 1 and 2. Licensing Authority, Ambala City reported to the tribunal on its summon Ex.R3W1/8 that DL No. 35640 dated 17.03.2010 was not issued by it.
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29. As regards the case of the respondent No. 2 that he had taken driving test of the respondent No. 1 and checked his driving license before employing him is concerned, it can be stated that the respondent No. 2 received copy of detailed accident report including verification report but it had not pleaded that he had taken driving test of the respondent No. 1 and checked his driving license before engaging him driver of his car. The respondent No. 2 came-forth his case after 6 years. The evidence of the respondent No. 2 is beyond pleadings. The respondent No. 2 has failed to establish that he had exercised due diligence and caution before engaging the respondent No. 1 as his driver. The respondent No. 2 has breached fundamental term of insurance policy that a person driving the car must hold an effective driving license at the time of the accident. However, the respondent No. 3 / insurer cannot be exonerated. The insurance policy was valid and operative on the date of the accident. Third party rights cannot be defeated. The interest of the respondent No. 3 / insurer can be secured by grant of recovery rights. The respondent No. 3 / insurer shall pay compensation to the petitioner. However, the respondent No. 3 / insurer is granted recovery rights against the respondent No. 1 and 2.
INTEREST:
30. This case is an instance of casual prosecution of the accident claim case. The issues in this case were framed on 15.01.2014. However, the petitioner failed to lead evidence and eventually, the accident claim case was dismissed for non-
prosecution on 28.07.2014.
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31. In the meanwhile, application for restoration of the accident claim case was also dismissed for non-prosecution on 30.09.2014 and second application for restoration of the accident claim case was again dismissed on 02.02.2015. The accident claim was restored on 20.07.2015. The petitioner again failed to adduce evidence and the accident claim case was again dismissed on 07.12.2015. The accident claim case was restored on 20.05.2017 on the application filed by the petitioner on 08.02.2017. The tribunal, vide order dated 29.05.2017, ordered that the petitioner will not be entitled to interest from the date of framing of issues till conclusion of evidence. Despite stringent direction by the tribunal, the petitioner led evidence on 22.01.2018. Accordingly, the petitioner will not be entitled to interest on the award amount from 15.01.2014 to 22.01.2018.
AWARD
32. Accordingly, the petitioner is awarded compensation in the sum of Rs. 1,01,000/- alongwith interest @ 9% per annum from the date of filing of the petition till the date of award (excluding the period from 15.01.2014 to 22.01.2018). The respondent No. 3 / insurer shall deposit the award amount with the tribunal within 30 days and otherwise, the award amount will carry interest @ 9% per annum from the date of filing of the petition till realization (excluding the period from 15.01.2014 to 22.01.2018). [See: judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.] Suit No. 463/12 Hari Ram vs Praveen Kumar & Ors. 11 of 13
33. The respondent No. 3 / insurer is granted recovery rights against the respondent No. 1 and 2 for recovery of the award amount alongwith up to date interest by way of appropriate proceedings and liability of the respondent No. 1 and 2 shall be joint and several.
34. Copy of Award be given to the parties. File be consigned to record room.
SANJAY Digitally signed by SANJAY
SHARMA
Location: East District,
SHARMA Karkardooma Courts, Delhi
Date: 2018.11.13 17:20:52 +0530
Announced in the open Court Sh. Sanjay Sharma
Dated: 13th November, 2018 Presiding Officer MACT (East)
Karkardooma Court, Delhi
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Suit No. 463/12
13.11.2018
Present : Sh. Sanjeev Yadav, Advocate for the petitioner.
Sh. Atul Yadav, Advocate for R2 / owner.
Sh. Mohd. Raghib, Advocate for R3 / Insurance Co.
Vide separate judgment, award is passed. To come up for compliance on 12.12.2018.
Sanjay Sharma PO MACT (East)/KKD Delhi/13.11.2018 Suit No. 463/12 Hari Ram vs Praveen Kumar & Ors. 13 of 13