Delhi District Court
Dolly vs Kanhaiya Dass on 27 October, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.115/14
Date of Institution: 24.07.2013
IN THE MATTER OF:
Dolly
D/o Shri Ranjan
R/o H.No.1545
Nangal Raya Village
Delhi Cantt.
New Delhi 110010.
Through her natural guardian/
mother Smt. Phoolmati
W/o Shri Ranjan ...Petitioner
Versus
1. Kanhaiya Dass
S/o Shri Munna Dass
R/o D212 West Vinod Nagar
New Delhi. (Driver)
2. Shri Tilak Raj
S/o Shri Puran Chand
R/o M704, Sakurpur, Britania
New Delhi. (Owner)
3. Bajaj Allianz General Insurance Co. Ltd.
201201A, 2nd Floor, ITL Twin Tower
Netaji Subhash Place
Suit No. 115/14 Page No. 1 of 30
Dolly v Kanhaiya Dass
Pitampura
New Delhi. (Insurer) ...Respondents
Final Arguments heard : 23.09.2014 Award reserved for : 27.10.2014 Date of Award : 27.10.2014 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 10.03.2013 at about 5.15 p.m, she was traveling in an auto rickshaw No.DL1RH1674 along with other passengers. When the injured/ petitioner reached at Dhaula Kuan Mor, Gurgaon Road, one car bearing No.DL 8CP 1050 came from Moti Bagh side, then the auto rickshaw No.DL 1RH 1674 driven by its driver at a very high speed, rashly, negligently, and without caring for the rules of traffic, all of a sudden hit the Maruti Swift car from the back side and the auto rickshaw turned turtle. It is averred that as a result of the forceful impact the injured/ petitioner fell down on the road and sustained injuries all over the body. It is stated that in respect of the accident FIR No.80/2013 under Sections 279/337/338 IPC was registered at PS Delhi Cantt. It is averred that the petitioner is still under treatment and suffering from severe pain and cannot Suit No. 115/14 Page No. 2 of 30 Dolly v Kanhaiya Dass study properly even till date. It is stated that the petitioner is aged about 15 years and having good health and good physique and was a very brilliant student but due to the accident and the injuries sustained in the accident, the petitioner could not study properly and still she was suffering from severe pain all over her body which caused great mental pain to the petitioner. It is stated that before the accident the petitioner was studying in 10th class and she could not study properly because of the accident and her future was totally defected which further caused great mental pain, torture and agony to the petitioner. The petitioner has claimed compensation on account of mental torture, agony, pain and injuries sustained in the accident, medicines, conveyance, special diet, future prospects, loss of pleasure in life, better prospect etc. besides financial losses. It is stated that the offending vehicle was being driven and owned by the respondent No.1 who is the owner of the vehicle and is liable to pay compensation to the petitioner for the tort committed by the respondent No.1, the respondent No.2 (ought to be respondent No.3) is the insurer of the vehicle with whom the vehicle was insured at the time of the accident, hence the respondent No.2 is liable to pay compensation to the petitioner to indemnify its insured. Hence, all the respondents are liable to pay compensation jointly and severally to the petitioner. It is prayed that an amount of Rs.3,00,000/ be awarded as compensation in favour of the petitioner and against the respondents. Suit No. 115/14 Page No. 3 of 30 Dolly v Kanhaiya Dass
3. Respondent No.1 had filed the written submissions in suit No.114/14 and it was stated by the respondent No.1 on 26.8.2013 that the reply filed to the DAR in that case be treated as reply to the claim petition in the present case. It was averred that the case has been filed based on wrong facts and the allegations against the respondent No.1 were completely false and he had been falsely implicated in the case. It is averred that the alleged accident did not happen because of the rash and negligent driving of the driver, but the accident took place by the driver of another vehicle bearing No.DL 8CP 1050. It is averred that the respondent No.1 had made a complaint of the incident on the same day to the police chowki and he had made a similar complaint to DCP, South West Delhi, but rather than acting upon the complaint of the respondent No.1/ driver the police had made him the accused in the present case. It is averred that the respondent No.1 is not involved in rash and negligent driving which had caused injury to the claimant, he was driving very carefully and patiently towards Dhaula Kuan, suddenly a car hit the TSR driven by the respondent No.1 in very rash and negligent manner. It is averred that the respondent No.1 had done his all to avoid the accident and in course of doing so he lost the balance and the TSR fell on the road. It is stated that the accident caused grievous injury to the respondent No.1 himself. It is averred that the owner of the car who was completely responsible for the accident was let off by the police without taking any action against him while the initial complaint was made by the respondent No.1 and the complaint on which the police had acted upon was the complaint of the owner of car No.DL 8CP 1050 Suit No. 115/14 Page No. 4 of 30 Dolly v Kanhaiya Dass who had not been impleaded in the case. It is averred that the statement made by the injured person/ claimant also indicates that they did not make any complaint after the accident against the respondent No.1. It is averred that the respondent No.1 is not responsible for causing injury to the claimant by rash and negligent driving and therefore he was not liable to pay any compensation to any of the claimants. It is averred that the respondent No.1 is a very poor person earning his livelihood by driving and has no means of income, therefore, he may not be able to pay any kind of compensation to the claimant, rather, he is one of the victims of the accident and suffered grievous injury and that had not been taken care of by the police or the driver of the other vehicle car No.DL 8CP 1050.
4. Respondent No.3 had filed the reasoned reply/ written statement in suit No.114/14 and it was stated by the learned counsel for the respondent No.3 on 26.8.2013 that the reply filed to the DAR in that case be treated as reply to the claim petition in the present case. Preliminary objections were taken that on 10.03.2013 an accident occurred when driver of vehicle bearing No.DL 1RH 1674 (TSR) hit the car from behind and turned turtle. After the accident, the police registered an FIR No.80/2013 PS Delhi Cantt. under Sections 279/337/338 IPC and subsequently copy of DAR, had been supplied to the insurance company with the charge sheet which shows that the driver was driving the vehicle in question without driving license at the time of the alleged accident and separate Sections 3/181 and 5/181 of M.V. Act were also added Suit No. 115/14 Page No. 5 of 30 Dolly v Kanhaiya Dass for handing over the vehicle to a person who was not holding a driving license. It is averred that at the time of the alleged accident, the insured entrusted the alleged vehicle in question to a person voluntarily, willingly and illegally who had no license and the said vehicle was being used by the insured in violation of Section 149 (2) (a) (ii) and the said fact was well in his knowledge that the said person/ driver was not holding a valid and effective driving license to drive the alleged vehicle and he authorized him the drive the vehicle and for that reason the owner/ insured himself was solely liable and the respondent No.3 was not liable to pay any compensation to the injured. Reliance has been placed on Mall Prakaso v. Malla Janki (2004) 3 SCC 343, wherein it was held that if the driver does not possess DL, Insurance Company is not at all liable and on II 2008 ACC 426 (SC), Sardari v. Sushil Kumar, wherein it was held that if the driver does not possess DL the Insurance Company is not liable. It is averred that in the present case IO had not objected at the time of releasing the insured vehicle in question on superdari. It is averred that if the insured wants to take benefit of the contract of insurance, he has to prove that the alleged offending vehicle was not being driven in contravention of the insurance policy; and the driver was holding a valid and effective driving license at the time of the alleged accident and if the insured/ owner failed to prove the same then no liability could be fastened upon the respondent No.3. It is admitted that the vehicle bearing No.DL 1RH 1674 (TSR) was insured with the respondent No.3 in the name of Shri Tilak Raj vide policy No.OG131104183100005326 w.e.f. 17.12.2012 to 16.12.2013. It is averred Suit No. 115/14 Page No. 6 of 30 Dolly v Kanhaiya Dass that the insurance company was unable to offer any amount as there was no driving license of the driver who was on wheel at the time of the accident.
5. Initially Detailed Accident Report was filed by the IO on 15.5.2013 and thereafter the claim petition was filed on 24.7.2013. From the pleadings of the parties, the following issues were framed vide order dated 24.03.2014:
1. Whether the petitioner / injured sustained injuries in the accident which occurred on 10.03.2013 at about 05.15 pm at Dhaula Kuan Mod, Gurgaon Road, Delhi Cantt, New Delhi, caused by rash and negligent driving of vehicle No.DL1RH1674, driven by respondent No.1 and owned by respondent No.2 and insured with respondent No.3? OPP
2. Whether the petitioner / injured is entitled to compensation? If so, to what amount and from whom?
3. Relief.
6. On behalf of the petitioner her mother Ms. Phoolmati entered into the witness box as PW1 and led her evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. She stated that she had spent Rs.70,000/ on treatment, Rs.25,000/ on special diet and Rs. 20,000/ on conveyance. She stated that due to the accident she had suffered great mental pain and agony and she had also suffered financial loss. Copy of medical bills is Ex.PW1/1 (colly), the copy of marksheet is Mark A and copy of Suit No. 115/14 Page No. 7 of 30 Dolly v Kanhaiya Dass school ID card is Mark B and the election identity card is Ex.PW1/2. PE was closed on 10.5.2014.
7. The respondent No.3 examined Shri Gaurav Parashar, Senior Executive (Legal) as R3W1 (in suit No.113/14) who led his evidence by way of affidavit which is Ex.R3W1/A. He deposed that their office sent notice dated 13.5.2014 under Section 134 (c ) MV Act and order XII rule 8 CPC to the driver respondent No.1 for production of his driving license and the insured respondent No.2 for production of the original insurance policy schedule along with the terms and conditions, registration certificate and driving license of the respondent No.1. He stated that as per the copy of the driving license and its verification, the respondent No.1 was not holding a valid driving license for driving the vehicle in question i.e. TSR Passenger commercial vehicle as there was endorsement on the driving license for LMV (NT) and Motorcycle for 20 years. He stated that from the DAR it had been established that the alleged offending vehicle was being driven by a person at the time of the alleged accident who was not holding a driving license and the IO had filed the charge sheet under Sections 279/338 IPC and 3/181 MV Act and separate kalandra was filed under Sections 3/181 and 5/181 MV Act against the respondent No.1 driver and the respondent No.2 insured of the alleged offending vehicle for driving and handing over the vehicle to a person who was not holding a driving license. He stated that it had been established that the alleged offending vehicle was being driven by the respondent No.1 who was not holding a valid Suit No. 115/14 Page No. 8 of 30 Dolly v Kanhaiya Dass and effective driving license and the said fact was well in the knowledge of the insured that the respondent No.1/ driver was not holding any valid and effective driving license to drive the alleged vehicle and authorized him to drive the vehicle for that reason the owner/ insured himself was solely liable and the respondent No.3 was not liable to pay any compensation to the petitioner. He stated that the act of handing over the vehicle by the insured respondent No.2 to the respondent No.1 who had no driving license to drive the vehicle in question amounted to willful default, intentional breach of terms and conditions of the insurance policy. Copy of Authorization Letter in favour of R3W1 is Ex.R3W1/1, carbon copy of the notice is Ex.R3W1/2, postal receipts are Ex.R3W1/3 and Ex.R3W1/4, AD card showing service upon the insured is Ex.R3W1/5, attested copy of the Insurance Policy bearing No.OG131104183100005326 issued to the respondent No.2 Shri Tilak Raj for vehicle bearing No.DL1RH1674 (TSR) for the period from 17.12.2012 to 16.12.2013 is Ex.R3W1/6. He also relied upon the DAR i.e. on the DL and the DL Verification report. He was not crossexamined on behalf of the respondents No.1 and 2 and the petitioner. RE was closed on 7.7.2014.
8. 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 through her mother was also examined on 28.7.2014 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.
Suit No. 115/14 Page No. 9 of 30 Dolly v Kanhaiya Dass
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 she sustained injuries in an accident caused due to 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 Suit No. 115/14 Page No. 10 of 30 Dolly v Kanhaiya Dass 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 Sections 166 and 140 of the Motor Vehicle Act.
11. The case of the petitioner is that on 10.03.2013 at about 5.15 p.m, she was traveling in an auto rickshaw No.DL1RH1674 along with other passengers. When the injured/ petitioner reached at Dhaula Kuan Mor, Gurgaon Road, one car bearing No.DL 8CP 1050 came from Moti Bagh side, then the auto rickshaw No.DL 1RH 1674 driven by its driver at a very high speed, rashly, negligently, and without caring for the rules of traffic, all of a sudden hit the Maruti Swift car from the back side and the auto rickshaw turned turtle. It was averred that as a result of the forceful impact the injured/ Suit No. 115/14 Page No. 11 of 30 Dolly v Kanhaiya Dass petitioner fell down on the road and sustained injuries all over the body. It was stated that in respect of the accident FIR No.80/2013 under Sections 279/337/338 IPC was registered at PS Delhi Cantt. PW1 in para 2 of her affidavit Ex.PW1/A had reiterated the mode and manner of the accident as stated in the claim petition.
12. The IO had filed the DAR comprising of the criminal record consisting of copy of charge sheet, copy of tehrir, copy of FIR No.80/2013 under sections 279/337 IPC, PS Delhi Cantt, copy of DD, copies of photographs, copy of site plan, copies of MLCs, copy of seizure memos, copy of mechanical inspection report of the TSR bearing No.DL1RH1674 and of the Maruti Swift Car No.DL8CP1050, copy of arrest memo, copy of the DL of the respondent No.1 and its verification report, copy of permit of the offending vehicle along with the verification report of the RC as also of the permit and the fitness, copy of kalandras, copy of the insurance policy of the offending vehicle with its verification, copy of superdarinama along with the order on the application for release of the vehicle on superdari and copy of application for the release of the vehicle on superdari. As per the FIR No. 80/2013 under sections 279/337 IPC, PS Delhi Cantt the case was registered on the basis of the complaint of Raman Anand, the driver of the Maruti Swift car. As per the charge sheet the driver of the offending vehicle Kanhaiya Dass respondent No.1 has already been charge sheeted for the offence under sections 279/337/338 IPC and 3/181 and 6/177 MV Act. Suit No. 115/14 Page No. 12 of 30 Dolly v Kanhaiya Dass
13. The respondent No.2 did not appear either to file the written statement or to crossexamine PW1. The respondent No.1 had filed the written submissions averring that the case had been filed based on wrong facts and the allegations against the respondent No.1 were completely false and he had been falsely implicated in the case. It was averred that the alleged accident did not happen because of the rash and negligent driving of the driver, but the accident took place by the driver of another vehicle bearing No.DL 8CP 1050. It was averred that the respondent No.1 had made a complaint of the incident on the same day to the police chowki and he had made a similar complaint to DCP, South West Delhi, but rather than acting upon the complaint of the respondent No.1/ driver the police had made him the accused in the present case. It was averred that the respondent No.1 was not involved in rash and negligent driving which had caused injury to the claimant, he was driving very carefully and patiently towards Dhaula Kuan, suddenly a car hit the TSR driven by the respondent No.1 in very rash and negligent manner. It was averred that the respondent No.1 had done his all to avoid the accident and in course of doing so he lost the balance and the TSR fell on the road. It was stated that the accident caused grievous injury to the respondent No.1 himself. It was averred that the owner of the car who was completely responsible for the accident was let off by the police without taking any action against him while the initial complaint was made by the respondent No.1 and the complaint on which the police had acted upon was the complaint of the owner of car No.DL 8CP 1050 who had not been impleaded in the case. It was averred that the Suit No. 115/14 Page No. 13 of 30 Dolly v Kanhaiya Dass statement made by the injured person/ claimant also indicated that they did not make any complaint after the accident against the respondent No.1. It was averred that the respondent No.1 was not responsible for causing injury to the claimant by rash and negligent driving and he was one of the victims of the accident and suffered grievous injury and that had not been taken care of by the police or the driver of the other vehicle car No.DL 8CP 1050. The respondent No.1 had also placed on record copy of the complaint made to the police, to the DCP and copy of his discharge report. However PW1 was not crossexamined on behalf of the respondent No.1 either.
14. During crossexamination by the learned counsel for the insurance company PW1 stated that she was accompanying the petitioner at the time of the accident. She stated that she was travelling along with her daughter/ petitioner, Radha and Shivani in the TSR at the time of the accident. She stated that she did not sustain any injury. She stated that the other three occupants of the TSR suffered injuries. She stated that all the injured were taken to RML Hospital. She stated that there were a divider on the road. It was a wide road. She stated that there was less traffic on the road at the time of the accident. She stated that there was a small gap between the TSR and the other vehicle which was going ahead of the TSR. There was a distance of about 10 footsteps. She stated that there was no other vehicle plying on the left or right side of the TSR. She stated that there was sufficient passage for movement of any vehicle from the side of the vehicle in which they were Suit No. 115/14 Page No. 14 of 30 Dolly v Kanhaiya Dass traveling. She stated that she had seen the other vehicle which was plying ahead of their TSR five to ten minutes prior to the accident. She stated that the TSR was going on the right side of the road which was along side of the divider. She stated that someone from the public called the police. The police reached the place of accident after five to ten minutes of the accident. She stated that she was conscious at the time of the accident. She stated that she was never taken to the site of the accident by the police. She denied the suggestion that the driver of the vehicle going ahead of the TSR applied sudden brakes without giving any indicator or that the accident took place due to the sole negligence of the driver of the vehicle which was going ahead of the TSR.
15. PW1 thus stated that she was accompanying the petitioner at the time of the accident. She stated that she was travelling along with her daughter/ petitioner, Radha and Shivani in the TSR at the time of the accident. She stated that she did not sustain any injury while the other three occupants of the TSR suffered injuries. The claim petitions have also been filed only in respect of the present petitioner and two others. She stated that there were a divider on the road and that it was a wide road and even the site plan which has been placed on record with the DAR would indicate that. She stated that there was less traffic on the road at the time of the accident. She also stated that there was a small gap between the TSR and the other vehicle which was going ahead of the TSR and there was a distance of about 10 footsteps. She stated Suit No. 115/14 Page No. 15 of 30 Dolly v Kanhaiya Dass that there was no other vehicle plying on the left or right side of the TSR and there was sufficient passage for movement of any vehicle from the side of the vehicle in which they were traveling but it is not the case that the accident had taken place while trying to overtake. She stated that she had seen the other vehicle which was plying ahead of their TSR five to ten minutes prior to the accident. She stated that the TSR was going on the right side of the road which was along side of the divider. She stated that she was never taken to the site of the accident by the police but nothing material has come out in her crossexamination to doubt her testimony. A suggestion was put to her that the driver of the vehicle going ahead of the TSR applied sudden brakes without giving any indicator or that the accident took place due to the sole negligence of the driver of the vehicle which was going ahead of the TSR which she denied. The respondent No.1 had also stated in his written statement that the accident had taken place due to the fault of the driver of the other vehicle and that the other vehicle had hit him but he had not specifically stated about the manner of the accident and even the mechanical inspection report of the TSR shows damage mainly to the front side and the mechanical inspection report of the car shows damage to the back side of the car.
16. The respondent No.1 who is the driver and the respondent No.2 who is the owner of the offending vehicle have not produced any evidence to dispute the version put forth by the petitioner and there is also nothing to show that the respondent No.1 had taken any follow up action on his complaint to the police. Suit No. 115/14 Page No. 16 of 30 Dolly v Kanhaiya Dass Further the criminal record has been placed on record which shows that the respondent No.1 has already been charge sheeted for the offence under Sections 279/337/338 IPC and Sections 3/181 and 6/177 MV Act. 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 respondents have also not adduced any evidence to prove any other version of the accident. There is absolutely no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.DL1RH1674. The fact that the charge sheet is filed against respondent No.1 and respondent No.1 is facing criminal trial is also not disputed. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved.
17. It was stated that as a result of the forceful impact the injured/ petitioner fell down on the road and sustained injuries all over the body and the petitioner was still under treatment. The MLC of the petitioner is on record which show the injuries sustained by the petitioner. Accordingly issue No.1 is decided in favour of the petitioner and against the respondents. Suit No. 115/14 Page No. 17 of 30 Dolly v Kanhaiya Dass Issue No.2
18. Since issue No.1 has been decided in favour of the petitioner she would be entitled to compensation. 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 on treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, the injured is further entitled to nonpecuniary 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
19. The case of the petitioner is that as a result of the forceful impact of the accident on 10.3.2013 she fell down on the road and sustained injuries all over the body. It was averred that the petitioner was still under treatment and suffering from severe pain and could not study properly even till date. It was stated that the petitioner was aged about 15 years and having good health and good physique and was a very brilliant student but due to the accident and the injuries sustained in the accident, the petitioner could not study properly and still she was suffering from severe pain all over her body which caused great mental pain to the petitioner. It was stated that before the Suit No. 115/14 Page No. 18 of 30 Dolly v Kanhaiya Dass accident the petitioner was studying in 10th class and she could not study properly because of the accident and her future was totally defected which further caused great mental pain, torture and agony to the petitioner. PW1 in paras 2 to 5 of her affidavit Ex.PW1/A had deposed to that effect. PW1 stated that she had spent Rs.70,000/ on treatment, Rs.25,000/ on special diet and Rs.20,000/ on conveyance. She stated that due to the accident she had suffered great mental pain and agony and she had also suffered financial loss. Copy of the medical bills is Ex.PW1/1 (colly). The MLC is on record which shows the injuries sustained by the petitioner and the injuries were opined to be simple in nature. There is however nothing to show that the petitioner had suffered any disability in the accident.
20. During crossexamination by the learned counsel for the insurance company PW1 admitted that she had filed all the treatment papers and original medical bills pertaining to the treatment taken by the petitioner which were available on the day of her examination. She stated that the petitioner sustained fracture on her leg and hand. She stated that she had not brought the original discharge summary of RML Hospital. She stated that they had taken the petitioner to a private hospital from RML Hospital on the same day. The petitioner was under treatment for about one month. She had not brought any prescriptions or OPD card to show that the petitioner took her treatment from a private hospital. She admitted that the medical bills filed by her on the day of her examination Ex.PW1/1 did not have corresponding prescriptions. Suit No. 115/14 Page No. 19 of 30 Dolly v Kanhaiya Dass She denied the suggestion that the documents filed by her did not relate to the injuries sustained by the petitioner in the accident or that the medical bills filed by her were forged and fabricated. Thus PW1 admitted that she had filed all the treatment papers and original medical bills pertaining to the treatment taken by the petitioner which were available on the day of her examination. She stated that the petitioner sustained fracture on her leg and hand. However the Xray report has been placed with the DAR and the same mentions no bony injury seen and as per the MLC the nature of injuries was opined to be simple. The petitioner has also not placed on record any document to show that she had sustained fracture on her leg and hand and PW1 had stated that she had not brought the original discharge summary of RML Hospital. PW1 stated that they had taken the petitioner to a private hospital from RML Hospital on the same day and she was under treatment for about one month. However PW1 herself stated that she had not brought any prescriptions or OPD card to show that the petitioner took her treatment from a private hospital and there is nothing on record to show the same. She admitted that the medical bills filed by her on the day of her examination Ex.PW1/1 did not have corresponding prescriptions and it is seen that only medical bills have been filed. There is thus nothing to show that the petitioner was still suffering from severe pain all over the body. It was stated that the petitioner had spent Rs. 70,000/ on her treatment. The petitioner has however placed on record bills for an amount of Rs.15,583/ though they were not accompanied by any prescriptions. It cannot be disputed that the petitioner sustained injuries in the Suit No. 115/14 Page No. 20 of 30 Dolly v Kanhaiya Dass accident and underwent treatment for the same. As such an amount of Rs. 16,000/ (Rs.Sixteen Thousand only) is awarded towards medicines and medical treatment including the amount of the bills.
21. Note can also be taken of the fact that on account of the accident the petitioner may not have been able to perform her day to day duties towards her 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. During crossexamination by the learned counsel for the insurance company PW1 admitted that she had not filed any bills to show that she incurred expenses of Rs.25,000/ on special diet and Rs.20,000/ on conveyance. Thus there is nothing to show any expenditure on these counts. There is also nothing to show that the injuries of the petitioner were such that she might have to incur extra expenditure on conveyance or attendant charges. However it can be taken note of that she might have had to take special diet for a few days.
LOSS OF STUDIES/INCOME
22. It is the case of the petitioner that she was aged about 15 years and having good health and good physique and was a very brilliant student but due to the accident and the injuries sustained in the accident, the petitioner could Suit No. 115/14 Page No. 21 of 30 Dolly v Kanhaiya Dass not study properly and still she was suffering from severe pain all over her body which caused great mental pain to the petitioner. It was stated that before the accident the petitioner was studying in 10th class and she could not study properly because of the accident and her future was totally defected which further caused great mental pain, torture and agony to the petitioner. PW1 stated that due to the accident she had suffered great mental pain and agony and she had also suffered financial loss. During crossexamination by the learned counsel for the insurance company PW1 stated that she is 5 th pass. She had not brought her ration card. She stated that the petitioner is studying in class 12th at present. She stated that the petitioner was aged about 15 years at the time of the accident. She had not brought any educational document of the school record of the petitioner. She admitted that she had not brought any document to show her relationship with the injured / petitioner. She denied the suggestion that the petitioner had not suffered any loss of studies as stated by her in para 4 of her affidavit. Thus PW1 stated that she had not brought her ration card and she had not brought any document to show her relationship with the injured/ petitioner. However there is nothing to dispute the same and Mark A which is the school certificate of the petitioner shows the name of PW1 as the mother of the petitioner. PW1 stated that the petitioner is studying in class 12th at present and that the petitioner was aged about 15 years at the time of the accident. Mark A shows the date of birth of the petitioner as 2.2.1994 and as such she would have been more than 19 years old on the date of the accident i.e. 10.3.2013. PW1 had stated that she had not brought any Suit No. 115/14 Page No. 22 of 30 Dolly v Kanhaiya Dass educational document of the school record of the petitioner but Mark A is there though not proved. She denied the suggestion that the petitioner had not suffered any loss of studies as stated by her in para 4 of her affidavit. During examination by the Tribunal the mother of the petitioner stated that Dolly is aged about 17 years and she is studying in class 11th though during cross examination PW1 had stated that the petitioner was studying in class 12 th. There is also nothing on record to show that the petitioner was advised bed rest for any particular period and no document has been produced to show for how much period the petitioner had to remain on bed rest on account of the injuries sustained in the accident or what was the loss suffered by her. Notice can however be taken of the fact that the petitioner may not have been able to perform her avocation for some period on account of the injuries sustained in the accident. Even if the petitioner was not working her income would be computed notionally for computing the loss of income. Hence, the petitioner is held entitled to an amount of Rs.10,000/ on account of loss of studies.
23. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that she acquired any disability on account of the accident or that she is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce her efficiency to work and thereby she would suffer loss of future income. Accordingly the petitioner cannot be held entitled to any amount on account of loss of future income.
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24. In the facts and circumstances of the case and in view of the above discussion a lump sum amount of Rs.33,000/ would be just and reasonable. Accordingly an amount of Rs.33,000/ is awarded as compensation in favour of the petitioner.
APPORTIONMENT OF LIABILITY:
25. 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 stated that their office sent notice dated 13.5.2014 under Section 134 (c ) MV Act and order XII rule 8 CPC to the driver respondent No.1 for production of his driving license and the insured respondent No.2 for production of the original insurance policy schedule along with the terms and conditions, registration certificate and driving license of the respondent No.1. He stated that as per the copy of the driving license and its verification, the respondent No.1 was not holding a valid driving license for driving the vehicle in question i.e. TSR Passenger commercial vehicle as there was endorsement on the driving license for LMV (NT) and Motorcycle for 20 years. He stated Suit No. 115/14 Page No. 24 of 30 Dolly v Kanhaiya Dass that from the DAR it had been established that the alleged offending vehicle was being driven by a person at the time of the alleged accident who was not holding a driving license and the IO had filed the charge sheet under Sections 279/338 IPC and 3/181 MV Act and separate kalandra was filed under Sections 3/181 and 5/181 MV Act against the respondent No.1 driver and the respondent No.2 insured of the alleged offending vehicle for driving and handing over the vehicle to a person who was not holding a driving license. He stated that it had been established that the alleged offending vehicle was being driven by the respondent No.1 who was not holding a valid and effective driving license and the said fact was well in the knowledge of the insured that the respondent No.1/ driver was not holding any valid and effective driving license to drive the alleged vehicle and authorized him to drive the vehicle for that reason the owner/ insured himself was solely liable and the respondent No.3 was not liable to pay any compensation to the petitioner. He stated that the act of handing over the vehicle by the insured respondent No.2 to the respondent No.1 who had no driving license to drive the vehicle in question amounted to willful default, intentional breach of terms and conditions of the insurance policy. Carbon copy of the notice is Ex.R3W1/2, postal receipts are Ex.R3W1/3 and Ex.R3W1/4 and AD card showing service upon the insured is Ex.R3W1/5. He also relied upon the DAR i.e. on the DL and the DL Verification report. He was not crossexamined on behalf of the respondents No.1 and 2 and the petitioner.
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26. It is seen that copy of the DL of the respondent No.1 was placed on record by the IO with the DAR along with the verification report and the same shows that the DL of the respondent No.1 was valid for LMVNT and Motorcycle and not for TSR or a commercial vehicle. 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 other DL nor appeared to crossexamine R3W1. In New India Assurance Co. 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."Suit No. 115/14 Page No. 26 of 30
Dolly v Kanhaiya Dass 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. Further the report of the IO is there and the respondents No.1 and 2 have not rebutted the same.
27. 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 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 Suit No. 115/14 Page No. 27 of 30 Dolly v Kanhaiya Dass 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 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."
Suit No. 115/14 Page No. 28 of 30 Dolly v Kanhaiya Dass 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 to drive a TSR on the date of the accident and thereafter the respondents No.1 and 2 have not appeared to rebut the same.
28. 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 to drive a TSR on the date of the accident the 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 and the insured. 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 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. Suit No. 115/14 Page No. 29 of 30 Dolly v Kanhaiya Dass RELIEF
29. The petitioner is awarded a sum of Rs.33,000/ (Rs.Thirty Three 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 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 her complete address as well as address of her counsel for sending the notice of deposit of the award amount.
30. 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 her 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 28.1.2015.
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 27th day of October, 2014 (GEETANJLI GOEL)
PO: MACT2
NEW DELHI
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Dolly v Kanhaiya Dass