Delhi District Court
Shri Habil Bhatt vs Shri Devender Singh Rawat on 19 August, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.50/14
Date of Institution: 18.01.2014
IN THE MATTER OF:
Shri Habil Bhatt
S/o Shri Mohd. Hamil
R/o Jhuggi Jal Vihar
Lajpat Nagar
New Delhi. .......Petitioner
Versus
1. Shri Devender Singh Rawat
S/o Shri Rajinder Singh Rawat
R/o Kalyanpur Post Office
Matela, PS Bhadroj Khan
Tehsil Bhadrasen, District Almora
Uttranchal.
2. Sardar Maninder Singh
S/o Shri G.S. Taneja
B5A, Housing Society
South Extn. Part I
New Delhi
Also at:
M/s Highway Travels
796 Old Lajpatrai Market
New Delhi.
Suit No. 50/14 Page No. 1 of 30
Habil Bhatt v Devinder Kumar
3. The New India Assurance Co. Ltd.
4th Floor, Bajaj House
97 Nehru Place
New Delhi 110019.
4. Owner of the Tavera car ...Respondents
Final Arguments heard : 26.07.2014 Award reserved for : 19.08.2014 Date of Award : 19.08.2014 AWARD
1. Vide this judgmentcumaward, I proceed to decide 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 arising out of the same accident.
2. It is the case of the petitioner that on 08.05.2013 at around 10 p.m. he was taking the passenger in his TSR No.D1RL1612 to New Delhi Railway Station and as soon as he reached Sector1, R. K. Puram, Red Light and stopped at the traffic signal since there was red light, a truck bearing No.DL1PB4344 was standing before the TSR at the signal and thereafter the TSR and behind the TSR there was a Tavera Car bearing No.UP81AF5145. It is averred that during this time one white coloured bus bearing No.DL1PB4344 hit the Tavera car UP81AF5145. It is averred that the Suit No. 50/14 Page No. 2 of 30 Habil Bhatt v Devinder Kumar petitioner was at the back of the truck and in front of the Tavera car and got crushed/sandwiched between the two due to the forceful impact resulting due to the hitting of the bus at the Tavera with great force and as a result of the same the TSR got stuck in the truck and got totally damaged and the petitioner and the passenger sustained injuries due to the rash and negligent driving of the bus driver and Tavera car. It is averred that as a result one person travelling in the TSR died and others were injured including the petitioner. It is averred that there was no negligence of any kind on the part of the petitioner with respect to the incident. It is stated that the respondent bus driver tried to run away and in an effort to run away he again hit the Tavera which again hit the petitioner's vehicle. It is averred that the vehicle of the petitioner got totally damaged and the petitioner and his passenger sustained injuries. It is stated that in respect of the accident FIR No.147/13 under Sections 279/337/304A IPC was registered at PS R. K. Puram on 09.05.2013. It is averred that the petitioner was working as a TSR driver and sustained laceration above upper lip, swelling of upper lip, abrasion (multiple small over nostril) and he was taken to Jai Prakash Narayan Apex Trauma Centre, AIIMS, New Delhi vide MLC No.366265 as per which the injuries were simple. It is prayed that an amount of Rs.2,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
3. Written statement was filed on behalf of the respondents No.1 and 2 taking the preliminary objections that there is no cause of action in favour of Suit No. 50/14 Page No. 3 of 30 Habil Bhatt v Devinder Kumar the petitioner and against the respondents No.1 and 2 and the petition has been filed to extract compensation from the respondents No.1 and 2 and other respondents. It is averred that there is no fault on the part of the respondent No.1 in the alleged accident and it is the injured/driver of the TSR who failed to follow the rules and regulations of the traffic and in case he was following the same the accident would not have occurred. It is averred that the complainant was the driver and could only carry 3 persons in the TSR but he was carrying 6 persons which was against the law. It is averred that the petitioner has not come to the court with clean hands and has suppressed the material facts from the court. It is averred that the present petition is not maintainable and is liable to be dismissed on the ground of nonjoinder and misjoinder of parties. It is averred that the alleged offending vehicle is duly insured with the respondent No.3 so the respondent No.3 is only liable to pay the compensation, if any, to the petitioner and the respondents No.1 and 2 have no right, title or interest for the same. It is averred that the vehicle was insured at the time of the incident and the permit of the vehicle is also valid, fitness is also valid, driving license is also valid and all the documents have been verified and found to be true and correct. It is averred that there was no rash and negligent driving on the part of the offending vehicle as the accident occurred at Red Light R. K. Puram, New Delhi. The averments made were denied. It is averred that the vehicle was insured with New India Insurance Co. Ltd. vide policy No.31060031120100002493 valid from 12.07.2012 to 11.07.2013, and was valid at the time of the accident.
Suit No. 50/14 Page No. 4 of 30 Habil Bhatt v Devinder Kumar
4. Written offer was filed on behalf of the respondent No.3 averring that the petitioner has sustained simple injury in the accident. It is averred that the vehicle bearing registration No. DL1PB4344 was insured with the company vide policy No.31060031120100002493 valid from 12.07.2012 to 11.07.2013. It is averred that the petitioner was admitted in the hospital namely Jai Prakash Narayan Apex Trauma Center, New Delhi on 09.05.2013. As per the MLC, the injury was simple. It is averred that as per the report submitted by the IO six persons were travelling in the TSR thus, contributing to the injuries suffered by them. The reasonable amount of compensation offered after taking into consideration all the facts/documents supplied by IO was Rs.5,000/.
5. Initially Detailed Accident Report was filed by the IO on 20.9.2013 and thereafter the claim petition was filed on 18.1.2014. On 15.2.2014 it was submitted by the learned counsel for the petitioner that the offer of settlement as made was not acceptable. From the pleadings of the parties, the following consolidated issues were framed vide order dated 15.02.2014:
1.Whether the petitioner/injured sustained injuries in the accident which occurred on 08.05.2013 at about 22 hrs. near Red Light, Sector1, R. K. Puram, New Delhi caused by rash and negligent driving of vehicle No.DL1PB4344 driven by respondent No.1, Devender Singh Rawat and owned by Suit No. 50/14 Page No. 5 of 30 Habil Bhatt v Devinder Kumar respondent No.2, and insured by respondent No.3, The New India Assurance Company Ltd.? OPP.
2.Whether the petitioner/injured is entitled for compensation? If so, to what amount and from whom?
3.Relief.
6. The petitioner appeared as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He deposed that he met with an accident and suffered injuries in a road accident on 9.5.2013 caused by rash and negligent act of the respondent No.1 and the respondent No.4. He stated that he is an auto driver and drives an auto on rent and earns about Rs.500/ per day approximately and also paid the rent of the auto on daily basis till the accident. He stated that he was admitted to Jai Prakash Narayan Apex Trauma Center, AIIMS. He stated that after the accident he was unable to earn regularly and he had suffered weakness. He stated that the accident was due to the rash and gross negligence of the driver of the offending vehicle due to which he suffered injuries and was out of work since the day of the accident. Copy of the petition is Ex.PW1/A, copy of ration card bearing No.6410264 with Pahchan Sankhya is 67470 is Ex.PW1/B, copy of election ID card is Ex.PW1/C, copy of FIR is Ex.PW1/D, copy of accident information report No. 39975 pertaining to the Suit No. 50/14 Page No. 6 of 30 Habil Bhatt v Devinder Kumar accident is Ex.PW1/E, copy of site plan is Ex.PW1/F, copy of mechanical inspection report of the vehicle No.DL1PB4344 (white colour) Tata bus is Ex.PW1/G, copy of mechanical inspection report of the vehicle No.UP81AF5145 (Tavera) is Ex.PW1/H, copy of mechanical inspection report of the vehicle No.DL1RL1612 TSR is Ex.PW1/I, copy of insurance policy of the offending vehicle (Bus) is Ex.PW1/J, copy of the note issued by the licensing authority is Ex.PW1/J1, copy of permit certificate of the offending vehicle (Bus) is Ex.PW1/K, copy of registered cover note of vehicle No.DL1PB4344 (Bus) is Ex.PW1/L, copy of screen report of vehicle No.DL1PB4344 (Bus) is Ex.PW1/M, copy of seizure memo of bus No.DL1PB4344 is Ex.PW1/N, copy of seizure memo of TSR No.DL1RL1612 is Ex.PW1/O, copy of seizure memo of Tavera car No.UP81AF5145 is Ex.PW1/P, copy of seizure memo of permit of bus No.DL1PB4344 is Ex.PW1/Q, copy of seizure memo of RC book of bus No.DL1PB4344 is Ex.PW1/R, copy of seizure memo of fitness of bus No.DL1PB45344 is Ex.PW1/S, copy of seizure memo of insurance policy is Ex.PW1/T, copy of seizure memo of DL of driver Mahinder Singh is Ex.PW1/U, copy of MLC of AIIMS Trauma Centre is Ex.PW1/V, copy of charge sheet is Ex.PW1/W and copies of medical bills are Ex.PW1/X (collynot there). PE was closed on 19.4.2014.
7. The respondent No.1 entered into the witness box as R1W1 and led his evidence by way of affidavit which is Ex.R1W1/A. He deposed that he was driving the bus bearing No.DL1PB4344 with a valid driving license on the Suit No. 50/14 Page No. 7 of 30 Habil Bhatt v Devinder Kumar date of the accident along with a valid permit. He stated that the vehicle bearing registration No.DL1PB4344 was insured with M/s The New India Assurance Co. Ltd. vide policy No.31060031120100002493 valid from 12.07.2012 to 11.07.2013. He stated that the petitioner has not come to the court with clean hands and has suppressed the material facts from the court. He stated that on the date of the accident he was driving the vehicle bearing No.DL1PB4344 at normal speed by obeying the traffic rule and regulation. He stated that before reaching at the traffic junction at sector1, R. K. Puram, Delhi, all of a sudden a TSR bearing No.DL1RL1612 came in front of his vehicle from the right side, to avoid the collision he put the brake and turned the vehicle to the left side of the road but could not avoid the accident and hit the right back side of the Tavera car bearing No.UP81AF5145. He stated that the said offending Tavera vehicle in turn dashed into the TSR bearing No.DL1RL1612, then again the said TSR vehicle hit the offending bus. He stated that at the time of the accident all the vehicles were moving and were trying to stop the vehicles as ahead there was red light at Sector1, R. K. Puram, New Delhi. He stated that it was the driver of the TSR vehicle No.DL1RL1612 who had actually contributed to the accident. He stated that the petitioner was travelling in TSR vehicle with 6 persons including the driver at the time of accident. He stated that the petition is bad for nonjoinder of necessary parties as the petitioner had not made the owner, driver and insurer of the Tavera Car bearing No.UP8AF5145 parties which in turn dashed into the TSR No.DL1RL1612 in which all the petitioners were Suit No. 50/14 Page No. 8 of 30 Habil Bhatt v Devinder Kumar travelling. He stated that he is not liable to pay compensation as there was no negligence on his part at the time of the accident. RE was closed on 19.4.2014.
8. I have heard the learned counsel for the petitioner and the learned counsels for the respondents No.1, 2 and 3 and perused the record. The petitioner was also examined on 17.05.2014 in terms of the judgment of the Hon'ble High Court on 17.05.2014 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
9. My findings on the specific issues are as under:
ISSUE NO.1
10. 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 Suit No. 50/14 Page No. 9 of 30 Habil Bhatt v Devinder Kumar 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."
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 Suit No. 50/14 Page No. 10 of 30 Habil Bhatt v Devinder Kumar Sections 166 and 140 of the Motor Vehicle Act.
11. The case of the petitioner is that on 08.05.2013 at around 10 p.m. he was taking the passenger in his TSR No.D1RL1612 to New Delhi Railway Station and as soon as he reached Sector1, R. K. Puram, Red Light and stopped at the traffic signal since there was red light, a truck bearing No.DL1PB4344 was standing before the TSR at the signal and thereafter the TSR and behind the TSR there was a Tavera Car bearing No.UP81AF5145. It was averred that during that time one white coloured bus bearing No.DL1PB4344 hit the Tavera car UP81AF5145. It was averred that the petitioner was at the back of the truck and in front of the Tavera car and got crushed/sandwiched between the two due to the forceful impact resulting due to the hitting of the bus at the Tavera with great force and as a result of the same the TSR got stuck in the truck and got totally damaged and the petitioner and the passenger sustained injuries due to the rash and negligent driving of the bus driver and Tavera car. It was averred that as a result one person travelling in the TSR died and others were injured including the petitioner. It was averred that there was no negligence of any kind on the part of the petitioner with respect to the incident. It was stated that the respondent bus driver tried to run away and in an effort to run away he again hit the Tavera which again hit the petitioner's vehicle. It was averred that the vehicle of the petitioner got totally damaged and the petitioner and his passenger sustained injuries. It was stated that in respect of the accident FIR No.147/13 Suit No. 50/14 Page No. 11 of 30 Habil Bhatt v Devinder Kumar under Sections 279/337/304A IPC was registered at PS R. K. Puram on 09.05.2013. In para 2 of his affidavit Ex.PW1/A the petitioner had stated that he met with an accident and suffered injuries in a road accident on 9.5.2013 caused by rash and negligent act of the respondents No.1 and 4.
12. The IO had filed the DAR on which reliance has been placed by the petitioner comprising of the criminal record consisting of copy of charge sheet, copy of MLC, copy of FIR No.147/2013 under sections 279/337/304A IPC, PS R.K. Puram, copy of site plan, copy of seizure memos, copy of mechanical inspection report of the TATA Bus No.DL1PB4344 (in connected case) and of the Tavera No.UP81AF5145 and of TSR No.DL1RL1612, copy of verification report of the RC of the offending bus, copy of the permit of the offending bus along with its verification report as also of the fitness certificate, copy of insurance policy of the offending bus and verification report in respect of the DL of the respondent No.1 and copy of voter identity card of the petitioner. As per the FIR No.147/2013 under sections 279/337/304A IPC, PS R.K. Puram the case was registered on the basis of the complaint of Mohd. Habil who was the driver of the TSR and the petitioner herein wherein he has stated the manner in which the accident had taken place. As per the charge sheet respondent No.1 has been charge sheeted for the offence under sections 279/337/304A IPC and Sections 6/177 MV Act.
Suit No. 50/14 Page No. 12 of 30 Habil Bhatt v Devinder Kumar
13. The respondents No.1 and 2 had filed their reply averring that there is no fault on the part of the respondent No.1 in the alleged accident and it is the injured/driver of the TSR who failed to follow the rules and regulations of the traffic and in case he was following the same the accident would not have occurred. It was averred that the complainant was the driver and could only carry 3 persons in the TSR but he was carrying 6 persons which was against the law. It was averred that there was no rash and negligent driving on the part of the offending vehicle as the accident occurred at Red Light R. K. Puram, New Delhi. The respondent No.1 had also appeared in the witness box as R1W1 and deposed that on the date of the accident he was driving the bus bearing No.DL1PB4344 at normal speed by obeying the traffic rule and regulation. He stated that before reaching at the traffic junction at sector1, R. K. Puram, Delhi, all of a sudden a TSR bearing No.DL1RL1612 came in front of his vehicle from the right side, to avoid the collision he put the brake and turned the vehicle to the left side of the road but could not avoid the accident and hit the right back side of the Tavera car bearing No.UP81AF5145. He stated that the said offending Tavera vehicle in turn dashed into the TSR bearing No.DL1RL1612, then again the said TSR vehicle hit the offending bus. He stated that at the time of the accident all the vehicles were moving and were trying to stop the vehicles as ahead there was red light at Sector1, R. K. Puram, New Delhi. He stated that it was the driver of the TSR vehicle No.DL1RL1612 who had actually contributed to the accident. He stated that the petitioner was travelling in TSR vehicle with 6 persons including the driver Suit No. 50/14 Page No. 13 of 30 Habil Bhatt v Devinder Kumar at the time of accident. He stated that the petition is bad for nonjoinder of necessary parties as the petitioner had not made the owner, driver and insurer of the Tavera Car bearing No.UP8AF5145 parties which in turn dashed into the TSR No.DL1RL1612 in which all the petitioners were travelling. He stated that there was no negligence on his part at the time of the accident.
14. It is thus seen that according to the FIR the TSR was standing at the red light, the offending bus hit a Tavera car bearing No.UP81AF5145 standing in front of it, then the bus hit the TSR which struck against a Track (should be truck) standing in front of it and then again the bus hit the TSR due to which the TSR was badly damaged and the driver of the bus escaped leaving the bus at the spot and the petitioner had also stated to that effect. As per the respondent No.1 the vehicles had still not stopped at the red light and were moving and R1W1 had stated that before reaching at the traffic junction at sector1, R. K. Puram, Delhi, all of a sudden a TSR bearing No.DL1RL1612 came in front of his vehicle from the right side, to avoid the collision he put the brake and turned the vehicle to the left side of the road but could not avoid the accident and hit the right back side of the Tavera car bearing No.UP81AF5145 which in turn dashed into the TSR bearing No.DL1RL1612, then again the said TSR vehicle hit the offending bus. Suit No. 50/14 Page No. 14 of 30 Habil Bhatt v Devinder Kumar
15. During crossexamination by the learned counsel for the respondent No.3 PW1 volunteered that he knew that the accident had taken place. He stated that he was driving a TSR at the time of the accident. He stated that there were 5 passengers in the TSR. He admitted that only 34 persons could be allowed to sit in the TSR. He stated that they were going to New Delhi Railway Station. He stated that the accident had taken place in R.K. Puram. He stated that his TSR was standing at the red light and the bus hit his TSR from behind. He denied the suggestion that he had taken the TSR all of a sudden in front of the bus and in order to avoid the TSR the bus moved to the left and hit a Tavera which hit the TSR. He denied the suggestion that he had filed a false claim petition to get compensation or that the accident took place due to his rashness or negligence or that the bus in question did not hit his TSR or that the bus was not involved in the accident or that in contravention of traffic rules he had taken 5 passengers in the TSR. The learned counsel for the respondents No.1 and 2 adopted the crossexamination done on behalf of the respondent No.3. Thus PW1 stated that he was driving a TSR at the time of the accident and that there were 5 passengers in the TSR. It is pertinent that PW1 admitted that only 34 persons could be allowed to sit in the TSR. He reiterated that they were going to New Delhi Railway Station and that the accident had taken place in R.K. Puram and also stated that his TSR was standing at the red light and the bus hit his TSR from behind. He denied the suggestion that he had taken the TSR all of a sudden in front of the bus and in order to avoid the TSR the bus moved to the left and hit a Tavera which hit the Suit No. 50/14 Page No. 15 of 30 Habil Bhatt v Devinder Kumar TSR. A suggestion was put to him that the bus in question did not hit his TSR and was not involved in the accident which he denied but that is not the case of the respondents No.1 and 2 either.
16. During crossexamination by the learned counsel for the respondent No.3 R1W1 stated that he is illiterate. He had stated that he has a DL which is valid for driving a bus and there is even no dispute about the DL of the respondent No.1. R1W1 stated that he was coming from Munirka towards Bhikaji Cama Place and at the red light the Auto came in front of his bus and he tried to brake but could not brake properly and the bus hit the Tavera and the Tavera hit the Auto and thereafter, the bus touched the Auto. During cross examination by the learned counsel for the petitioner R1W1 stated that his bus was at the speed of 2025 k.m./hr at the time of the accident. He admitted that he had slowed the bus further as it was a red light. He denied the suggestion that there are contradictions between his WS and Ex.R1W1/A. He did not remember if there was no mention of the Tavera in the WS. He stated that the Auto had come from the left side in front of his bus. He stated that he had moved the bus to the right side to avoid the Auto which came from the left side. He stated that the Tavera was in front of the bus. He stated that his bus had hit the Tavera which hit the Auto and thereafter, the bus touched the Auto. He admitted that the FIR was lodged against him in respect of the accident. He admitted that the criminal case is pending against him. He denied the suggestion that the accident had taken place due to his rashness or Suit No. 50/14 Page No. 16 of 30 Habil Bhatt v Devinder Kumar negligence. During crossexamination by the learned counsel for the petitioner Habil Bhatt R1W1 denied the suggestion that the accident had taken place due to his rashness or negligence or that the TSR was standing at the red light and he had brought the bus with speed which first hit the Tavera and then hit the TSR.
17. R1W1 thus stated that he was coming from Munirka towards Bhikaji Cama Place and at the red light the Auto came in front of his bus and he tried to brake but could not brake properly and the bus hit the Tavera and the Tavera hit the Auto and thereafter, the bus touched the Auto. It is the admitted case of all the parties that the accident had taken place at the red light. It is pertinent that even R1W1 stated that the bus had hit the Tavera and the Tavera hit the Auto and thereafter the bus also touched the Auto which is almost in consonance with what was stated in the FIR and R1W1 had himself also stated about the bus touching the Auto. R1W1 had tried to contend that the auto had come in front of the bus suddenly and a suggestion to that effect was put to PW1 which PW1 denied and PW1 had reiterated that he was standing at the red light. He stated that the Auto had come from the left side in front of his bus and that he had moved the bus to the right side to avoid the Auto which came from the left side. He stated that the Tavera was in front of the bus and his bus had hit the Tavera which hit the Auto and thereafter, the bus touched the Auto. Thus he had reiterated about the bus touching the auto. R1W1 also stated that his bus was at the speed of 2025 k.m./hr at the time of Suit No. 50/14 Page No. 17 of 30 Habil Bhatt v Devinder Kumar the accident and that he had slowed the bus further as it was a red light. He did not remember if there was no mention of the Tavera in the WS and in fact it is seen that in the WS it was only stated that the injured/driver of the TSR failed to follow the rules and regulations of the traffic and in case he was following the same the accident would not have occurred and it was nowhere stated how according to the respondents No.1 and 2 the accident had taken place and it was stated for the first time in the affidavit of R1W1.
18. R1W1 admitted that the FIR was lodged against him in respect of the accident. He admitted that the criminal case is pending against him. Further the copy of the charge sheet is on record as per which the respondent No.1 has been charge sheeted for the offence under Sections 279/337/304A 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. There is nothing to disprove the involvement of vehicle No.DL1PB4344. In view of the material on record, the negligence of the respondent No.1 has been prima facie proved.
19. It was argued on behalf of the respondents that there was contributory negligence on the part of the petitioner who is the driver of the TSR in that there were 6 persons in the TSR and it is not in dispute that there Suit No. 50/14 Page No. 18 of 30 Habil Bhatt v Devinder Kumar were 5 passengers and driver in the TSR at the time of the accident and PW1 had also admitted the same. It is not in dispute that three vehicles were involved in the accident though in the FIR there was also mention of a Track (should be a truck). However only on the ground that the TSR was carrying more passengers than permissible it cannot be held that the driver of the TSR i.e. the petitioner was guilty of contributory negligence. On the question of carrying more passengers than permissible, in Nanded Prabhani's case 2000 (1) ACC 290 the Hon'ble Supreme Court was dealing with the provisions of Section 207 of the Act but the question before the Hon'ble Supreme Court was whether the motor vehicle was being used in contravention of any of the conditions of the permit in that the bus in that case was found to be carrying passengers, excess in number than allowed by the permit and it was held:
"Reading the provisions as it is, the conclusion is irresistible that the condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorise the Police officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the Police Officer would be entitled to detain the vehicle. According to the learned counsel, appearing for the State of Maharashtra, the expression "purpose for which the vehicle may be used" could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only Suit No. 50/14 Page No. 19 of 30 Habil Bhatt v Devinder Kumar refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted."
In the instant case even the permit of the TSR is not there on record. In B.V. Nagaraju v. Oriental Insurance Company Ltd. 1996 ACJ 1178 as well where the breach alleged was that the vehicle was carrying passengers beyond the permissible capacity, it was held by the Hon'ble Supreme Court that the exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle. Thus in view of the well settled law it cannot be said that as the driver of the TSR was carrying more passengers than permissible he had contributed to the happening of the accident or there was any breach of the permit.
20. The law is well settled 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 Suit No. 50/14 Page No. 20 of 30 Habil Bhatt v Devinder Kumar that claimants would have to forego 30% share of their awarded compensation in favour of the joint tort feasors of the truck present before the Court as they had failed to implead tortfeasors of the car as party respondents 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 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 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 bus and the present petition has been filed seeking relief against the said bus.
Suit No. 50/14 Page No. 21 of 30 Habil Bhatt v Devinder Kumar
21. 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, 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 only against the driver, owner and Suit No. 50/14 Page No. 22 of 30 Habil Bhatt v Devinder Kumar insurer of the offending bus.
22. It was stated that due to the accident the petitioner suffered injuries and he was admitted in Jai Prakash Narayan Apex Trauma Centre, AIIMS, New Delhi vide MLC No.366265. The MLC of the petitioner is on record which shows the nature of injuries sustained by the petitioner to be simple. 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
23. 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.
Suit No. 50/14 Page No. 23 of 30 Habil Bhatt v Devinder Kumar MEDICINES AND MEDICAL TREATMENT
24. The case of the petitioner is that as a result of the accident on 8.5.2013 he suffered injuries and was admitted in Jai Prakash Narayan Apex Trauma Centre, AIIMS, New Delhi vide MLC No.366265. PW1 in paras 2 and 5 of his affidavit Ex.PW1/A had deposed to that effect. The MLC of the petitioner is on record as per which the petitioner had sustained laceration over right upper lip and swelling of upper lip and abrasion (multiple small over nostril) and it shows the nature of injuries sustained by the petitioner to be simple. However there is nothing to show that the petitioner had got any disability.
25. During crossexamination by the learned counsel for the respondent No.3 PW1 stated that he had received injuries on his nose and chest in the accident. He denied the suggestion that he had not sustained any permanent disability volunteered due to the pain in the chest the vehicle was not being given to him for driving. He stated that he had spent Rs.50,000/ to 60,000/ on the treatment. He stated that he had not placed on record any bill in respect of the treatment. Thus PW1 stated that he had received injuries on his nose and chest in the accident. He denied the suggestion that he had not sustained permanent disability but there is nothing to show the same. He stated that he had spent Rs.50,000/ to 60,000/ on the treatment but he himself stated that he had not placed on record any bill in respect of the treatment and even no bill has been placed on record. It cannot be disputed that the petitioner had Suit No. 50/14 Page No. 24 of 30 Habil Bhatt v Devinder Kumar sustained injuries. The petitioner has not filed any bills in respect of the alleged expenditure on medicines. However the petitioner would have incurred some expenditure on his treatment. Looking to the nature of the injuries the petitioner is held entitled to an amount of Rs.2,000/ (Rs.Two Thousand only) towards medical treatment and expenses.
26. Note can also be taken of the fact that on account of the accident the petitioner may not have been able to perform his day to day duties towards his family and may not have been able to enjoy the amenities of life and would have undergone pain and suffering. No document has been placed on record regarding expenditure on conveyance, special diet or attendant charges. There is also nothing to show that the injuries of the petitioner were such that he might have to incur extra expenditure on conveyance or on attendant charges. However it can be taken note of the fact that he might have had to take a special diet for a few days.
LOSS OF INCOME
27. It is the case of the petitioner that he is an auto driver and drives an auto on rent and earns about Rs.500/ per day approximately and he also paid the rent of the auto on daily basis till the accident. He stated that after the accident he was unable to earn regularly and he had suffered weakness. He stated that he was out of work since the day of the accident. During cross Suit No. 50/14 Page No. 25 of 30 Habil Bhatt v Devinder Kumar examination by the learned counsel for the respondent No.3 PW1 stated that he earns Rs.300/ to 400/ per day. He stated that he had not placed on record any document to show the income. Thus PW1 stated that he earns Rs.300/ to 400/ per day though he had not placed on record any document to show the income and he had also stated that he had to pay rent but it was not stated how much rent he was paying. It cannot be disputed that the petitioner was working as an auto driver and even the accident had taken place when he was carrying passengers but there is nothing to show how much amount he was earning. The petitioner had stated that after the accident he was unable to earn regularly and he had suffered weakness and he was out of work since the day of the accident. He had also volunteered that due to pain in the chest the vehicle was not being given to him for driving but the petitioner has not produced any witness or document to establish that. During his examination by the Tribunal the petitioner stated that at the time of the accident he was driving TSR and that at present he was not doing any work. He stated that at the time of the accident he was earning Rs.400/ to Rs.500/ per day. He stated that he did not have any disability. However there is nothing on the record to show that the petitioner was not doing any work at present due to the injuries sustained in the accident. There is also nothing on record to show that the petitioner remained on bed rest due to the injuries or for how much period he had to remain on bed rest. Thus there is nothing to show for how much time the petitioner could not actually work or what was the loss suffered by him on account of the same. Notice can however be taken of the fact that the Suit No. 50/14 Page No. 26 of 30 Habil Bhatt v Devinder Kumar petitioner may not have been able to perform his avocation for some period. Hence, the petitioner is held entitled to an amount of Rs.15,000/ on account of loss of income including for the period he may not have been able to work.
28. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that he acquired any disability on account of the accident or he is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce his efficiency to work and thereby he would suffer loss of future income. Accordingly the petitioner cannot be held entitled to any amount on account of loss of future income.
29. In the facts and circumstances of the case and in view of the above discussion a lump sum amount of Rs.25,000/ would be just and reasonable. Accordingly an amount of Rs.25,000/ is awarded as compensation in favour of the petitioner.
RELIEF
30. The petitioner is awarded a sum of Rs.25,000/ (Rs.Twenty Five Thousand only) along with interest @ 9% per annum from the date of filing of the DAR till its realization including, interim award, if any already passed against the respondents and in favour of the petitioner. The entire amount be released to the petitioner. The respondent No.3 is directed to deposit the said Suit No. 50/14 Page No. 27 of 30 Habil Bhatt v Devinder Kumar amount by way of crossed cheque/ demand draft in court within 30 days of the award failing which it would be liable to pay interest at the rate of 12% p.a. for the period of delay. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount. APPORTIONMENT OF LIABILITY:
31. 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 was sought to be contended that the respondent No.1 did not possess a badge and reliance was placed on DAR where it was so stated and the respondent No.1 was also charge sheeted for the offence under Sections 6/177 MV Act. However that is not one of the defences which is available to the insurance company under Section 149 of the Act and even no suggestion was put to R1W1 in that regard. In P.T. Moidu v. The Oriental Insurance Co. Ltd. AIR 2008 Ker 43 it was held that merely because the driver of the vehicle who was duly licensed was not having a badge would not enable the insurance company to shirk its liability as per Section 149 of the Act and the insurance company also failed to prove that the insured had committed a fundamental breach of the policy conditions resulting in the accident. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.3. Respondent No.3 i.e. New India Assurance Company Limited being the insurance company in its reply had admitted that Suit No. 50/14 Page No. 28 of 30 Habil Bhatt v Devinder Kumar the vehicle bearing registration No. DL1PB4344 was insured with the company vide policy No.31060031120100002493 valid from 12.07.2012 to 11.07.2013. There is no evidence on behalf of respondent No.3 to show that there was any violation of the rules and terms of policy by the respondents and in fact the duly verified documents regarding the offending vehicle were placed on record by the IO with the DAR. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondents No.1 and 2. The respondent No.3 being the insurer is directed to deposit the award amount in the court by way of crossed cheque/ demand draft within 30 days of the passing of the award with interest at the rate of 9% from the date of filing of the DAR till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
32. 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 respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimant 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 20.11.2014.
Suit No. 50/14 Page No. 29 of 30 Habil Bhatt v Devinder Kumar Attested copy of the award be given to the parties free of cost. File be consigned to record room.
Announced in open court
on this 19th day of August, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
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Habil Bhatt v Devinder Kumar