Delhi District Court
Sanjay Sonar vs Vikash Kumar @ Lambu on 6 April, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.416/14
Date of Institution: 03.07.2012
IN THE MATTER OF:
Sanjay Sonar
S/o Shri Lallan Sonar
R/o Village & Post - Rewati
PS Rewati, Distt. Balia
U.P. .......Petitioner
Versus
1. Vikash Kumar @ Lambu
S/o Shri Raghuvir Singh
R/o Village Rajlu Garhi
PSGannaur
Distt. Sonepat
Haryana.
2. Satpal
S/o Shri Amar Singh
R/o Village & Post Rathdhana
Distt. Sonepat
Haryana.
3.IFFCO Tokio General Insurance Co. Ltd.
4th Floor, 416421, Narain Manzil
23 Barakhamba Road
Connaught Place
New Delhi.
Suit No. 416/14 Page No. 1 of 41
Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
Also at:
10, Shaheed Jeet Singh Marg
FAI Building
Qutub Institutional Area
New Delhi. ....Respondents
Final Arguments heard : 05.03.2015 Award reserved for : 06.04.2015 Date of Award : 06.04.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioner that on 17.03.2011 at about 11:00 hrs, he was going along with his brother Pawan Kumar for the purpose of selling goods of Manihari in the Mela of Holi at Ponta Sahib from Delhi and when he was at Yamuna Nagar, Haryana, the petitioner was going on a three wheeler bearing No.HR586894 for going to Buriya Chowk Jagadari, Haryana and the vehicle was driven by the driver on proper way and as per rules of traffic. When the petitioner reached near ESI Hospital, Jagadari, PSCity Jagadari, Haryana, then all of a sudden a truck bearing No.HR69A1776 came in high speed which was driven by the driver in rash and negligent manner and in contravention of rules of traffic and hit the vehicle by which the petitioner was traveling from the front side with very great force. It is averred that due to the Suit No. 416/14 Page No. 2 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
forceful impact, the three wheeler (TSR) turned over on the road and the petitioner received multiple grievous injuries along with his brother and the petitioner was removed to government hospital, Yamuna Nagar where after giving first aid, he was referred to PGI Hospital, Chandigarh where the MLC was prepared by the doctors concerned. It is averred that the accident occurred due to the rash and negligent driving of the respondent No.1 who was driving the vehicle at the time of the accident in a rash and negligent manner and due to his act an innocent person became the victim of the same. It is stated that in respect of the accident FIR No.143/11 under Sections 279/337/338 IPC was registered at PS Jagadhari City.
3. It is averred that due to the accident, the petitioner/injured received multiple grievous injuries and other injuries in both legs and swelling and pain on different parts of the body and the petitioner who was a very poor person and a daily earning person, had spent a huge amount on his treatment and he spent all his deposited money on his treatment and he also arranged some money from his relatives as a friendly loan which he had not paid till date and the treatment was still continuing. It is averred that the petitioner had spent Rs. 5 to 6 lacs on treatment. It is averred that due to the accident, the petitioner and his family members had suffered from mental pain, agony, loss of income, loss of works, loss of enjoyment, loss of social activities, loss of general or special damages etc. It is averred that the petitioner was 29 years old and at the time of the accident, the petitioner was doing a private job/ selfwork and Suit No. 416/14 Page No. 3 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
he was selling goods of Manihari/ ladies items (bangles etc.) and he was earning Rs.10,000/ per month but due to the accident he had left the job for a long time and he had no source of income in the said period and he suffered great financial losses and other losses etc. It is averred that at the time of the accident, the respondent No.1 was driving the offending vehicle in rash and negligent manner and the respondent No.2 is the owner of the offending vehicle under whose control and supervision the respondent No.1 was driving the offending vehicle in rash and negligent manner and in contravention of rules of traffic and the respondent No.3 is the insurance company of the offending vehicle, so all the respondents are liable to pay the compensation to the petitioner/ injured jointly as well as severally as per rules. It is prayed that an amount of Rs.20,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
4. Written statement was filed on behalf of the respondents No.1 and 2 taking the preliminary objections that the accident was not due to the failure on the part of the respondent No.1, though the vehicle belonged to the respondent No.2 and the occurrence of the accident was due to the negligence on the part of the petitioner and the driver of the auto rickshaw/ TSR in which the petitioner was traveling. It is averred that no fault was done by the respondents No.1 and 2 and the cause of accident was totally on the part of the victim himself. The averments made in the claim petition were denied. It is averred that the respondent No.1 is a seasoned driver and on the fateful day he was Suit No. 416/14 Page No. 4 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
driving the truck bearing No.HR69A1776 in compliance of the traffic rules, however, the driver of TSR No.HR586894 in which the petitioner claimed to be traveling, on sighting the police picket near the ESI Hospital suddenly tried to take a UTurn at a great speed, as a result of which the TSR No.HR586894 turned over on the road. It is averred that despite the accident caused on himself by the driver of the TSR the respondent No.1 succeeded in stopping his truck without touching the TSR, hence there was no fault on the part of the respondents No.1 and 2 in the alleged accident. It was denied that such huge expenditure had been incurred in a government hospital and it was stated that amount of expenditure as alleged was totally arbitrary. It was denied that the accident occurred due to rash and negligent driving of the respondent No.1. It is averred that it was due to the rash and negligent act of the petitioner that the accident occurred and the respondents No.1 and 2 had no role in the alleged accident. It is averred that the respondent No.1 could not have driven the truck in a rash and negligent manner in a market area.
5. Written statement was filed on behalf of the respondent No.3 taking the preliminary objections that the respondent No.3 received the information regarding the alleged accident from the petition only and the alleged insured had not intimated the respondent No.3 about the happening of the alleged accident. It is averred that the respondent No.3 would not be liable to pay any amount of compensation to the petitioner in case the insured had violated any terms and conditions of the insurance policy issued by the respondent No.3 Suit No. 416/14 Page No. 5 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
and in that event the owner/insured would be liable to pay the compensation. It is averred that the amount as claimed by the petitioner is highly excessive, exorbitant and without any basis. It is averred that the petition is without any cause of action. The averments made in the claim petition were denied. It is denied that the petitioner sustained multiple grievous injuries in the alleged accident. It is denied that the registration number of the vehicle involved was HR69A1776 (Truck).
6. An application was filed on behalf of the petitioner for issuance of disability certificate which was allowed vide order dated 26.9.2012 of my learned predecessor. It was stated that conciliation was not possible. From the pleadings of the parties, the following issues were framed vide order dated 16.02.2013 of my learned predecessor:
1. Whether the petitioner Shri Sanjay Sonar sustained injuries in the accident which occurred on 17.03.2011 at about 11.00 hrs near ESI Hospital, Jagadhari, PS City Jagadhari, Haryana, caused by rash and negligent driving of vehicle bearing No.HR69A1776 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?
3.Relief.Suit No. 416/14 Page No. 6 of 41
Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
Another application was filed on behalf of the petitioner for issuance of disability certificate which was allowed vide order dated 24.9.2013 of my learned predecessor. Another application was filed for issuance of disability certificate which was allowed vide order dated 28.3.2014. An application under Section 170 MV Act was filed on behalf of the respondent No.3 which was allowed vide order date 16.5.2014. Vide disability certificate dated 9.4.2014, the petitioner was opined to have temporary disability of 53% in relation to his both lower limbs which was likely to improve with future treatment. It was stated on 25.9.2014 that the treatment was over and as such fresh directions were given for issuance of disability certificate vide order dated 25.9.2014.
7. The petitioner Shri Sanjay Sonar appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He stated that from PGI Hospital, Chandigarh he was referred to Safdarjung Hospital, New Delhi where he was treated by the doctors. He stated that he was diagnosed by the doctors i.e. fracture in both legs and his left foot toe was amputated and he remained as outdoor patient till date. He stated that at the time of the accident, he was 29 years old and he was doing the work of selling the goods of Manihari in weekly market and was earning Rs.10,000/ per month and due to the accident, he could not do his work till date. He stated that due to the accident, he became a permanent disabled person and he was unable to do his daily routine work. He stated that he had spent about Rs.50,000/ on medical treatment and Rs. Suit No. 416/14 Page No. 7 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
20,000/ on special diet, Rs.20,000/ on conveyance, Rs.20,000/ on attendant and future expenses of Rs.50,000/. He stated that due to the accident, he had suffered great mental pain and agony, suffering from financial problem, loss of pecuniary and nonpecuniary, loss of social activities and his future became in dark. The original medical bills, copy of discharge slips, OPD cards, Xray report, copy of election I card and copy of Aadhar card are Ex.PW1/1 to Ex.PW1/4.
8. PW2 Dr. Suman Kumari Badhal, VMMC Safdarjung Hospital proved the disability certificate bearing No.220/14MR in the name of Shri Sanjay Sonar which is Ex.PW2/A. She stated that the injured could not carry heavy weight as he was a manual labour. She could not say the permanent percentage of disability for which a board was to be constituted. She was recalled for further examination and she stated that she was a member of the disability board which had further examined the patient Shri Sanjay Sonar and issued the disability certificate which is Ex.PW2/B. She stated that as per the same, the petitioner was a case of posttraumatic deformity of right knee and left ankle with scarring and amputation of 1st and 2nd toes of left foot with PPI 53% with respect to both lower limbs. She stated that there was no possibility of any further improvement. She stated that despite the disability, the petitioner could stand on both legs without any support. He could manage his household and routine activities. She stated that he would not be in a position to carry heavy weights. She stated that it was not possible to state whether he would be able Suit No. 416/14 Page No. 8 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
to drive. She stated that he could not use public transport without assistance. PE was closed on 16.5.2014.
9. On behalf of the respondent No.3, Shri Aditya Swaroop, Agency Development Manager was examined as R3W1 and he had brought the policy bearing No.74016208 for the period from 27.09.2010 to 26.09.2011 in the name of Satpal for the vehicle bearing No.HR69A1776 which is Ex.R3W1/1. He stated that their company had got issued notice under Order 12 Rule 8 CPC through its Advocate upon the driver as well owner of the offending vehicle and the same is Ex.R3W1/2 and the receipts of the same are Ex.R3W1/3. He produced the investigation report of the investigator namely Amit Verma which is Ex.R3W1/4 (colly) and authorization letter is Ex.R3W1/5. He was not cross examined. RE was closed on 28.8.2014.
10. I have heard the Learned Counsel for the petitioner as well as the Learned Counsel for the respondent No.3 and perused the record. The petitioner was also examined on 28.8.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
11. My findings on the specific issues are as under:
Suit No. 416/14 Page No. 9 of 41
Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.Issue No. 1
12. 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 the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants 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 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."
Suit No. 416/14 Page No. 10 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
13. The case of the petitioner is that on 17.03.2011 at about 11:00 hrs, he was going along with his brother Pawan Kumar for the purpose of selling goods of Manihari in the Mela of Holi at Ponta Sahib from Delhi and when he was at Yamuna Nagar, Haryana, the petitioner was going on a three wheeler bearing No.HR586894 for going to Buriya Chowk Jagadari, Haryana and the vehicle was driven by the driver on proper way and as per rules of traffic. When the petitioner reached near ESI Hospital, Jagadari, PSCity Jagadari, Haryana, then all of a sudden a truck bearing No.HR69A1776 came in high speed which was driven by the driver in rash and negligent manner and in contravention of rules of traffic and hit the vehicle by which the petitioner was traveling from the front side with very great force. It was averred that due to the Suit No. 416/14 Page No. 11 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
forceful impact, the three wheeler (TSR) turned over on the road and the petitioner received multiple grievous injuries along with his brother and the petitioner was removed to government hospital, Yamuna Nagar where after giving first aid, he was referred to PGI Hospital, Chandigarh where the MLC was prepared by the doctors concerned. It was averred that the accident occurred due to the rash and negligent driving of the respondent No.1 who was driving the vehicle at the time of the accident in a rash and negligent manner and due to his act an innocent person became the victim of the same. It was stated that in respect of the accident FIR No.143/11 under Sections 279/337/338 IPC was registered at PS Jagadhari City. In paras 2, 8 and 10 of his affidavit Ex.PW1/A the petitioner had reiterated the mode and manner of the accident as stated in the claim petition.
14. The petitioner had filed the copy of the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of arrest/ surrender form; copy of MLC and copy of mechanical inspection report of the offending vehicle bearing No.HR69A1776 and of the auto bearing No.HR586894. As per the FIR No.143/11 under sections 279/337 IPC, PS Jagadhari City, District Yamuna Nagar the case was registered on the basis of complaint of the petitioner Sanjay Kumar wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/337/338 IPC. Suit No. 416/14 Page No. 12 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
15. The respondents No.1 and 2 had filed the written statement averring that the accident was not due to the failure on the part of the respondent No.1, though the vehicle belonged to the respondent No.2 and the occurrence of the accident was due to the negligence on the part of the petitioner and the driver of the auto rickshaw/ TSR in which the petitioner was traveling. It was averred that no fault was done by the respondents No.1 and 2 and the cause of accident was totally on the part of the victim himself. It was averred that the respondent No.1 was a seasoned driver and on the fateful day he was driving the truck bearing No.HR69A1776 in compliance of the traffic rules, however, the driver of TSR No.HR586894 in which the petitioner claimed to be traveling, on sighting the police picket near the ESI Hospital suddenly tried to take a UTurn at a great speed, as a result of which the TSR No.HR586894 turned over on the road. It was averred that despite the accident caused on himself by the driver of the TSR the respondent No.1 succeeded in stopping his truck without touching the TSR, hence there was no fault on the part of the respondents No.1 and 2 in the alleged accident. It was denied that the accident occurred due to rash and negligent driving of the respondent No.1. It was averred that it was due to the rash and negligent act of the petitioner that the accident occurred and the respondents No.1 and 2 had no role in the alleged accident. It was averred that the respondent No.1 could not have driven the truck in a rash and negligent manner in a market area. During crossexamination by the learned counsel for the insurance company/respondent No.3 PW1 stated that there were only two passengers in Suit No. 416/14 Page No. 13 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
the TSR in which they were traveling at the time of the accident. He stated that the accident took place from the front side by the offending vehicle. The registration number of the offending vehicle is HR69A1776 (Truck) and the TSR was going on its way. Thus PW1 stated that there were only two passengers in the TSR in which they were traveling at the time of the accident and there is nothing to show otherwise. He stated that the accident took place from the front side by the offending vehicle.
16. A perusal of the mechanical inspection report of the offending vehicle shows that there were fresh scratches on the front bumper on the right side, the right side indicator was freshly broken. The mechanical inspection report of the threewheeler shows that the frame was bent, the right side cabin and pipe were freshly bent, the back cabin was fully bent and the cloth of the roof was torn, there were scratches all over on the three wheeler. As such there was damage to both the vehicles. The respondents No.1 and 2 who are the driver and owner of the offending vehicle have not adduced any evidence to dispute the version put forth by the petitioner or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/337/338 IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The Suit No. 416/14 Page No. 14 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
respondents have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.HR69A1776. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
17. It was sought to be contended by the respondents No.1 and 2 that the accident had taken place due to the negligence of the petitioner himself and the driver of the auto. However the petitioner was only a passenger in the auto. Regarding the contention that the driver of the threewheeler in which the petitioner was travelling was negligent it was stated in the complaint that the offending vehicle had come on the other side and hit the threewheeler. Even if the said contention is accepted, it is settled law that the claimants can chose the insurer and insured in respect of the vehicles as tort feasors to recover the compensation amount. In Om Wati & Ors. v. Mohd. Din & Ors. 2001 91 DLT 184 (decided by DB of Hon'ble High Court of Delhi) it was observed:
"Coming to the question of 'apportionment' it seems to us that First Appellate Court was in error in holding that claimants would have to forego 30% share of their awarded compensation in favour of the joint tortfeasors of the truck present before the Court as they had failed to implead tort feasors of the car as partyrespondents in their claim suits. This is because the accident could not be wholly treated to be the result of contributory negligence. Even, if it was assumed Suit No. 416/14 Page No. 15 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
that the drivers of the two vehicles contributed to the accident in some measure, the other two deceased who were travelling in the car could not be held responsible for any such negligence. Therefore, it was a case of composite negligence in their case. The principle of composite negligence is that where more than one person are responsible for commission of the wrong, the person wronged has a choice of proceedings against all or any one or more. Any one of the wrong doer is liable for the whole damage if it is otherwise made out. In other words the liability of two sets of tortfeasors becomes both joint and several."
Similar is the position in the present case wherein the petitioner was travelling in the threewheeler and he would have a choice of proceedings against all or any one or more. This judgment was referred to by the Hon'ble High Court of Delhi in Raj Pal Kaur & Ors. v. Pawan Gir & Ors. CM(C)1187/2013 decided on 30.10.2013 and it was held that the FIR was registered against the truck driver and the petitioners/ claimants had rightly sought relief against the said vehicle. In the present case as well the FIR had been registered against the respondent No.1, the driver of the truck and the present petition has been filed seeking relief against the said truck.
18. Further the Hon'ble Supreme Court in T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, held: "6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, Suit No. 416/14 Page No. 16 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
Thus it was held by the Hon'ble Supreme Court that each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In the present case the petitioner has proceeded against the driver, owner and insurer of the offending truck.
19. It was stated that due to the forceful impact of being hit by the truck, the three wheeler (TSR) turned over on the road and the petitioner received multiple grievous injuries along with his brother and the petitioner was removed to government hospital, Yamuna Nagar where after giving first aid, he Suit No. 416/14 Page No. 17 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
was referred to PGI Hospital, Chandigarh where the MLC was prepared by the doctors concerned. The MLC of the petitioner is on record as per which the nature of injuries was opined to be grievous. Thus it stands established that the petitioner had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioner and against the respondents. Issue No.2
20. Since issue No.1 has been decided in favour of the petitioner he would be entitled to compensation as per the provisions of the Act. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, he is further entitled to non pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
21. The case of the petitioner is that due to the forceful impact of the truck hitting it on 17.3.2011, the three wheeler (TSR) in which the petitioner was Suit No. 416/14 Page No. 18 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
traveling turned over on the road and the petitioner received multiple grievous injuries along with his brother and the petitioner was removed to government hospital, Yamuna Nagar where after giving first aid, he was referred to PGI Hospital, Chandigarh where the MLC was prepared by the doctors concerned. It was averred that due to the accident, the petitioner/injured received multiple grievous injuries and other injuries in both legs and swelling and pain on different parts of the body and the petitioner who was a very poor person and a daily earning person, had spent a huge amount on his treatment and he spent all his deposited money on his treatment and he also arranged some money from his relatives as a friendly loan which he had not paid till date and the treatment was still continuing. It was averred that the petitioner had spent Rs.5 to 6 lacs on treatment. It was averred that due to the accident, the petitioner and his family members had suffered from mental pain, agony, loss of income, loss of works, loss of enjoyment, loss of social activities, loss of general or special damages etc. The petitioner in paras 2, 3, 5, 6 and 7 of his affidavit Ex.PW1/A had deposed to that effect. He stated that from PGI Hospital, Chandigarh he was referred to Safdarjung Hospital, New Delhi where he was treated by the doctors. He stated that he was diagnosed by the doctors i.e. fracture in both legs and his left foot toe was amputated and he remained as outdoor patient till date. He stated that due to the accident, he became a permanent disabled person and he was unable to do his daily routine work. He stated that he had spent about Rs.50,000/ on medical treatment and Rs. 20,000/ on special diet, Rs.20,000/ on conveyance, Rs.20,000/ on attendant Suit No. 416/14 Page No. 19 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
and future expenses of Rs.50,000/. He stated that due to the accident his future became in dark. The original medical bills, copy of discharge slips, OPD cards, Xray report, copy of election I card and copy of Aadhar card are Ex.PW1/1 to Ex.PW1/4. The MLC of the petitioner is on record as per which the nature of injuries was opined to be grievous. The documents placed on record show that the first and second toe of the left foot were amputated and he also remained admitted in hospital for various periods. Thus the injuries were grievous in nature. The petitioner had also sustained disability due to the accident and the disability certificate is on record as per which the petitioner was a case of posttraumatic deformity of right knee and left ankle with scarring and amputation of 1st and 2nd toes of left foot with PPI 53% with respect to both lower limbs. Thus the petitioner had sustained disability due to the accident.
22. During crossexamination by the learned counsel for the insurance company/respondent No.3 PW1 denied the suggestion that he had not spent Rs.50,000/ on medical treatment, Rs.20,000/ on special diet, Rs.20,000/ on conveyance, Rs.20,000/ on engaging an attendant and that he would not spend Rs.50,000/ on future expenses. He denied the suggestion that the injuries sustained by him were not due to the accident. He stated that he relied on the medical bills which were filed on record only. Thus mainly suggestions were put to PW1 which he denied. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner had Suit No. 416/14 Page No. 20 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
stated that he had spent about Rs.50,000/ on medical treatment. The petitioner had filed bills for an amount of Rs.11,712/ approximately. Looking to the nature of the injuries the petitioner is held entitled to the amount of the bills. The petitioner had stated that he would incur future expenses of Rs. 50,000/. However there is nothing to show the same. At the same time the petitioner would incur some expenses even subsequently. Accordingly an amount of Rs.15,000/ is awarded towards medical treatment and expenses including the amount of the bills.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
23. It has been held in Divisional Controller, K. S. R. T. C v 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 loss 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) Lord 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 monetary assessment."Suit No. 416/14 Page No. 21 of 41
Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
The case of the petitioner is that due to the forceful impact of the truck hitting it on 17.3.2011, the three wheeler (TSR) turned over on the road and the petitioner received multiple grievous injuries along with his brother and the petitioner was removed to government hospital, Yamuna Nagar where after giving first aid, he was referred to PGI Hospital, Chandigarh where the MLC was prepared by the doctors concerned. It was averred that due to the accident, the petitioner/injured received multiple grievous injuries and other injuries in both legs and swelling and pain on different parts of the body and the petitioner who was a very poor person and a daily earning person, had spent a huge amount on his treatment and he spent all his deposited money on his treatment and he also arranged some money from his relatives as a friendly loan which he had not paid till date and the treatment was still continuing. It was averred that due to the accident, the petitioner and his family members had suffered from mental pain, agony, loss of income, loss of works, loss of enjoyment, loss of social activities, loss of general or special damages etc. The petitioner stated that from PGI Hospital, Chandigarh he was referred to Safdarjung Hospital, New Delhi where he was treated by the doctors. He stated that he was diagnosed by the doctors i.e. fracture in both legs and his left foot toe was amputated and he remained as outdoor patient till date. He stated that due to the accident, he became a permanent disabled person and he was unable to do his daily routine work. He stated that due to the accident his future became in dark. The MLC of the petitioner is on record as per which the nature of injuries was opined to be grievous. The documents placed on Suit No. 416/14 Page No. 22 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
record show that the first and second toe of the left foot were amputated and he also remained admitted in hospital for various periods. Thus the injuries were grievous in nature. The petitioner had also sustained disability due to the accident and the disability certificate is on record as per which the petitioner was a case of posttraumatic deformity of right knee and left ankle with scarring and amputation of 1st and 2nd toes of left foot with PPI 53% with respect to both lower limbs. Thus the petitioner had sustained disability due to the accident. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2011, the petitioner is awarded Rs.60,000/ (Rs.Sixty Thousand only) for pain and suffering.
24. The petitioner was 29 years of age and it was so stated in the claim petition and PW1 had also deposed to that effect. Copy of the voter identity card of the petitioner is Ex.PW1/4 as per which the year of birth of the petitioner was 1987. However in the Aadhar card the date of birth of the petitioner has been stated to be 12.5.1984. As such he would have been more than 26 years old on the date of the accident i.e. 17.3.2011. Notice can be taken of the fact that on account of the injuries sustained by him the petitioner may not have been able to perform his day to day duties towards his family and on account of the injuries suffered by him the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.20,000/ (Rs.Twenty Thousand only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any Suit No. 416/14 Page No. 23 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
amount towards loss of expectation of life. He is awarded a sum of Rs.20,000/ towards the disability and Rs.10,000/ towards loss of marriage prospects. CONVEYANCE AND SPECIAL DIET
25. The petitioner in para 6 of his affidavit Ex.PW1/A had stated that he had spent Rs.20,000/ on conveyance. During crossexamination by the learned counsel for the insurance company/respondent No.3 PW1 denied the suggestion that he had not spent Rs.50,000/ on medical treatment, Rs. 20,000/ on special diet, Rs.20,000/ on conveyance, Rs.20,000/ on engaging an attendant and that he would not spend Rs.50,000/ on future expenses. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the petitioner was taken to Government Hospital, Yamuna Nagar and thereafter he was referred to PGI Hospital, Chandigarh and thereafter to Safdarjung Hospital and that after discharge from hospital he might have hired the services of private conveyance as he would not have been able to drive of his own or to use public conveyance. In the circumstances a sum of Rs.10,000/ (Rs.Ten Thousand only) would be just and proper towards conveyance charges.
26. The petitioner in para 6 of his affidavit Ex.PW1/A had stated that he had spent Rs.20,000/ on special diet. During crossexamination by the learned counsel for the insurance company/respondent No.3 PW1 denied the Suit No. 416/14 Page No. 24 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
suggestion that he had not spent Rs.50,000/ on medical treatment, Rs. 20,000/ on special diet, Rs.20,000/ on conveyance, Rs.20,000/ on engaging an attendant and that he would not spend Rs.50,000/ on future expenses. Although the petitioner has not proved that he was advised special diet but 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 speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.10,000/ (Rs.Ten Thousand only) for special diet.
27. The petitioner in para 6 of his affidavit Ex.PW1/A had stated that he had spent Rs.20,000/ on attendant. During crossexamination by the learned counsel for the insurance company/respondent No.3 PW1 denied the suggestion that he had not spent Rs.50,000/ on medical treatment, Rs. 20,000/ on special diet, Rs.20,000/ on conveyance, Rs.20,000/ on engaging an attendant and that he would not spend Rs.50,000/ on future expenses. Although the petitioner has not produced any evidence to show that he incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.15,000/ is awarded towards attendant charges.
Suit No. 416/14 Page No. 25 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
LOSS OF INCOME
28. It is the case of the petitioner that due to the accident, the petitioner and his family members had suffered from mental pain, agony, loss of income, loss of works, loss of enjoyment, loss of social activities, loss of general or special damages etc. It was averred that the petitioner was 29 years old and at the time of the accident, the petitioner was doing a private job/ selfwork and he was selling goods of Manihari/ ladies items (bangles etc.) and he was earning Rs.10,000/ per month but due to the accident he had left the job for a long time and he had no source of income in the said period and he suffered great financial losses and other losses etc. The petitioner in paras 4, 5 and 7 of his affidavit Ex.PW1/A had deposed to that effect. He stated that at the time of the accident, he was 29 years old and he was doing the work of selling the goods of Manihari in weekly market and was earning Rs.10,000/ per month and due to the accident, he could not do his work till date. He stated that due to the accident, he became a permanent disabled person and he was unable to do his daily routine work. He stated that due to the accident, he had suffered great mental pain and agony, suffering from financial problem, loss of pecuniary and nonpecuniary, loss of social activities and his future became in dark. However the petitioner has not placed on record any document to show what he was doing or how much amount he was earning though it is his case that at the time of the accident he was going to sell his goods of Manihari in the Holi Mela at Ponta Sahib. Suit No. 416/14 Page No. 26 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
29. During crossexamination by the learned counsel for the insurance company/respondent No.3 PW1 stated that he had not filed any document to show his income proof. He stated that he was not doing any work at present. He stated that he was single and his parents looked after him. He stated that he would use the compensation amount for establishing a shop like utensils. Thus PW1 stated that he had not filed any document to show his income proof. He stated that he was not doing any work at present. He stated that he was single and his parents looked after him. During examination by the Tribunal the petitioner stated that he was 27 years old. He stated that at the time of the accident he was running a parchoon shop. He stated that at present he was not doing anything and his shop had been closed. However it is not even stated where the shop was being run. There is nothing to show that the petitioner had acquired any skill or to show his educational qualifications. In the absence of any documentary evidence, the income of the petitioner would have to be computed on the basis of minimum wages for an unskilled worker prevalent at the time of the accident i.e. on 17.3.2011 in UP (the address of the petitioner is shown to be of UP, the accident had taken place in Haryana and though the petitioner had stated that at the time of the accident he was going from Delhi to Ponta Sahib, there is nothing to show that the petitioner was residing in or working at Delhi at the time of the accident) which were Rs.3,950/ p.m. that is Rs.47,400/ p.a. Suit No. 416/14 Page No. 27 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
30. The petitioner has also not produced any document to show that he remained on bed rest for any particular period and there is nothing to show that he was advised bed rest for any particular period or that on account of the injuries sustained in the accident he was unable to work or to show the period for which he was not able to work though the documents show that he remained on continuous treatment for a considerable period. During examination by the Tribunal the petitioner had stated that at present he was not doing anything but there is nothing to show that the same was on account of the injuries sustained in the accident. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs. 25,000/ consolidated on account of loss of income.
31. It is the case of the petitioner that he had sustained 53% permanent physical impairment in relation to both lower limbs. In Raj Kumar v Ajay Kumar & Anr.,(2011)1 SCC 343, the 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 has 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, Suit No. 416/14 Page No. 28 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
and his inability to earn 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 human being. 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 still 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 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 Suit No. 416/14 Page No. 29 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
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)."
Thus it has been held that what requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured i.e. the functional disability and after assessing the loss of earning capacity in terms of percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings.
32. The petitioner in support of his case had examined PW2 who proved the disability certificate bearing No.220/14MR in the name of Shri Sanjay Sonar which is Ex.PW2/A. She stated that the injured could not carry heavy weight as he was a manual labour. She could not say the permanent percentage of disability for which a board was to be constituted. She was recalled for further examination and she stated that she was a member of the disability board which had further examined the patient Shri Sanjay Sonar and issued the disability certificate which is Ex.PW2/B. She stated that as per the same, the petitioner was a case of posttraumatic deformity of right knee and left ankle with scarring and amputation of 1st and 2nd toes of left foot with PPI 53% with respect to both lower limbs. She stated that there was no possibility of any further improvement. She stated that despite the disability, the petitioner could stand on both legs without any support. He could manage his household Suit No. 416/14 Page No. 30 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
and routine activities. She stated that he would not be in a position to carry heavy weights. She stated that it was not possible to state whether he would be able to drive. She stated that he could not use public transport without assistance.
33. During crossexamination by the learned counsel for the insurance company PW2 (when only the temporary disability certificate had been received) stated that to assess the disability of both the lower limbs a medical board is to be constituted. She stated that the certificate was for temporary disability with respect to both lower limbs. She stated that Dr. Rakesh had treated the injured and he only could say how much improvement was possible after complete treatment. She could not say at that stage, as she was am not his treating doctor. In answer to Court question she stated that at that stage it was not possible to opine about the patient acquiring any permanent disability as he was still under treatment and further surgeries had been recommended in his case. However the petitioner was again examined by the disability board and a permanent disability certificate was issued as per which the petitioner was a case of posttraumatic deformity of right knee and left ankle with scarring and amputation of 1st and 2nd toes of left foot with PPI 53% with respect to both lower limbs. It is pertinent that PW2 stated that despite the disability, the petitioner could stand on both legs without any support and that he could manage his household and routine activities. She however stated that he would not be in a position to carry heavy weights and it Suit No. 416/14 Page No. 31 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
was not possible to state whether he would be able to drive and he could not use public transport without assistance. Thus the petitioner had sustained permanent disability due to the accident. The petitioner had sustained permanent physical impairment of 53% in respect to both lower limbs which would have effect on the working capacity of the petitioner and the petitioner had stated that he was doing the work of selling goods of Manihari. In view of the same considering the nature of disability, the age of the petitioner and other attending circumstances the functional disability in his respect is taken as 30% in relation to the whole body. Accordingly the loss of income of the petitioner shall be 30% of Rs.47,400/ i.e. Rs.14,220/ approximately p.a.
34. As observed above the petitioner was more than 26 years old at the time of the accident and suffered disability. As per Sarla Verma v. DTC (2009) 6 SCC 121 the appropriate multiplier applicable shall be of 17. As regards the future prospects in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. MAC. APP.189/2014 decided on 12.1.2015 which has been further relied on in Shriram General Insurance Co. Ltd. v. Preeti & Ors. MAC. APP. 1145/2013 decided on 28.1.2015 and U.P. State Road Transport Corporation v. Shahida & Ors. MAC. APP. 325/2013 decided on 28.1.2015 it was held that the judgment in Reshma Kumari & Ors. v. Madan Mohan & Anr. (2013) 9 SCC 65 shall be taken as a binding precedent in which judgment the Hon'ble Supreme Court while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) held as under: Suit No. 416/14 Page No. 32 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
"38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], this Court has noted the earlier decisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Sarla Dixit[(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], SCC p. 134) "24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary‟ should be read as actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."Suit No. 416/14 Page No. 33 of 41
Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was selfemployed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases." There is nothing to show the future prospects of the deceased or even to show that he had a permanent job and as such the actual income at the time of accident without any addition to income for future prospects would be taken and the petitioner would not be entitled to any addition of the income towards future prospects.
After applying the multiplier of 17, the petitioner shall be entitled to loss of income i.e. 14,220/X17 = Rs.2,41,740/ (rounded off to Rs.2,42,000/). Thus the total amount towards loss of income would be Rs.2,67,000/. Suit No. 416/14 Page No. 34 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
The total compensation is assessed as under:
Medicines and Medical treatment Rs.15,000/ Pain and suffering Rs.60,000/ Loss of Amenities of life Rs.20,000/ Disability Rs.20,000/ Loss of marriage prospects Rs.10,000/ Conveyance Rs.10,000/ Special Diet Rs.10,000/ Attendant charges Rs.15,000/ Loss of Income Rs.2,67,000/ TOTAL Rs.4,27,000/
Thus the total compensation would be Rs.4,27,000/.
RELIEF
35. The petitioner is awarded a sum of Rs.4,27,000/ (Rs.Four Lacs Twenty Seven Thousand only) along with interest @ 9% per annum from the date of filing of the claim petition till its realization including, interim award, if any already passed against the respondents and in favour of the petitioner. The respondent No.3 is directed to deposit the award amount directly in the bank account of the claimant in 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. 60% of the amount be kept in FDR for a period of 3 years.
Suit No. 416/14 Page No. 35 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
APPORTIONMENT OF LIABILITY:
36. The respondent No.1 is the driver, the respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. It is the case of the respondent No.3 that the driver of the offending vehicle i.e. the respondent No.1 was not holding a valid driving license on the date of the accident which amounted to fundamental breach of condition of policy and as such the insurance company was not liable to pay the compensation. In support of its case the respondent No.3 had produced R3W1 in the witness box who deposed that their company had got issued notice under Order 12 Rule 8 CPC through its Advocate upon the driver as well owner of the offending vehicle and the same is Ex.R3W1/2 and the receipts of the same are Ex.R3W1/3. He produced the investigation report of the investigator namely Amit Verma which is Ex.R3W1/4 (Colly) and authorization letter is Ex.R3W1/5. He was not crossexamined.
37. It is seen that no copy of the DL of the respondent No.1 was placed on record and in the arrest/ surrender form Sections 3/181 MV Act were mentioned though the same were not mentioned in the charge sheet. However no DL has been produced on record by the respondents. Further the respondent No.3 had issued notice to the respondents No.1 and 2 to produce the DL of the respondent No.1 but the respondents No.1 and 2 did not produce any DL nor appeared to crossexamine R3W1. In New India Assurance Co.Suit No. 416/14 Page No. 36 of 41
Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
Ltd. v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733 the Hon'ble High Court observed as under:
"23. Where the assured chooses to run away from the battle i.e. fails to defend the allegation of having breached the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at the trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."
In the instant case the respondent No.3 had sent the notice under Order XII Rule 8 CPC to the driver and owner and there is nothing more that the insurance company could have done.
38. It is settled law that the insurance company has to establish that there was a conscious breach of the terms and conditions of the policy. It is now well settled that in such cases the insurance company would first have to satisfy the liability towards third party though it may subsequently recover the Suit No. 416/14 Page No. 37 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
amount from the insured. The issue was considered at length by the Hon'ble High Court of Delhi in Sanjay v. Suresh Chand & Ors. F.A.O. No.445/2000 decided on 3.8.2012 and it was observed:
"The issue of satisfying the third party liability even in case of breach of the terms of insurance policy is settled by three Judge Bench report in Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21. As per Section 149(2) of the Motor Vehicles Act (the Act), an insurer is entitled to defend the action on the grounds as mentioned under Section 149(2)(a)
(i)(ii) of the Act. Thus, the onus is on the insurer to prove that there is breach of the condition of the policy. It is well settled that the breach must be conscious and willful. Even if a conscious breach on the part of the insured is established, still the insurer has a statutory liability to pay the compensation to the third party and will simply have the right to recover the same from the insured/tortfeasor either in the same proceedings or by independent proceedings as the case may be, as ordered by the Claims Tribunal or the Court. The question of statutory liability to pay the compensation was discussed in detail by a two Judge Bench of the Supreme Court in Skandia Insurance Company Limited v. Kokilaben Chandravadan, (1987) 2 SCC 654 where it was held that exclusion clause in the contract of Insurance must be read down being in conflict with the main statutory provision enacted for protection of victim of accidents. It was laid down that the victim would be entitled to recover the compensation from the insurer irrespective of the breach of the condition of policy. The three Judge Bench of the Supreme Court in Sohan Lal Passi analyzed the corresponding provisions under the Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988 and approved the decision in Skandia. In New India Assurance Co., Shimla v. Kamla and Ors., (2001) 4 SCC 342, the Supreme Court referred to the decision of the two Judge Bench in Skandia, the three Judge Bench decision in Sohan Lal Passi and held that the insurer who has been made liable to pay the compensation to third parties on account of issuance of certificate of insurance, shall be entitled to Suit No. 416/14 Page No. 38 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
recover the same if there was any breach of the policy condition on account of the vehicle being driven without a valid driving licence.
20. This Court in MAC APP. No.329/2010 Oriental Insurance Company Limited v. Rakesh Kumar and Others and other Appeals decided by a common judgment dated 29.02.2012, noticed some divergence of opinion in National Insurance Company Limited v. Kusum Rai & Ors., (2006) 4 SCC 250, National Insurance Company Limited v. Vidhyadhar Mahariwala & Ors., (2008) 12 SCC 701; Ishwar Chandra & Ors. v. The Oriental Insurance Company Limited & Ors.,(2007) 10 SCC 650 and Premkumari & Ors. v. Prahalad Dev & Ors., (2008) 3 SCC 193 and held that in view of the three Judge Bench decision in Sohan Lal Passi (supra) and Swaran Singh, the liability of the Insurance Company visàvis the third party is statutory. If the Insurance Company successfully proves the conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner or driver, as the case may be."
Thus if the insurance company proves conscious breach of the terms of the policy, it would be entitled to recovery rights. In the instant case the insurance company has succeeded in discharging the onus in this regard and it stands established that the respondent No.1 was not holding a valid license on the date of the accident and thereafter the respondents No.1 and 2 have not appeared to rebut the same.
39. In view of the settled law the insurance company is liable qua third party though it shall be vested with the right to recover the amount of liability from the insured after depositing the compensation awarded to the third party. Since the respondents No.1 and 2 did not produce a valid license the Suit No. 416/14 Page No. 39 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
respondent No.3 shall have the right to recover the amount of compensation from the respondent No.2 who is the owner of the offending vehicle. Accordingly the respondent No.3 shall deposit the amount of compensation for which the respondent No.2 would be liable and after depositing the same shall have the right to recover the same from the respondent No.2. The respondent No.3 being the insurer is directed to deposit the award amount in the bank account of the claimant in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award with interest at the rate of 9% from the date of filing of the claim petition till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
40. 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. 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 Complex, 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. The insurer shall deposit the award amount along with interest upto the date of notice of deposit to the claimant Suit No. 416/14 Page No. 40 of 41 Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.
with a copy to his counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 14.7.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi. File be consigned to record room.
Announced in open court
on this 6th day of April, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 416/14 Page No. 41 of 41
Sanjay Sunar Vs Vikash Kumar Lambu F & Ors.