Delhi District Court
Sh. Ashu vs Sh. Paramjeet (Driver) on 25 October, 2012
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS, NEW DELHI
MACT NO. 250/12
IN THE MATTER OF :
1. Sh. Ashu
S/o Sh. Ved Prakash
R/o A126, Gulab Bagh
Uttam Nagar, Delhi59.
......Petitioner
Versus
1. Sh. Paramjeet (Driver)
S/o Sh. Rameshwar
R/o VPO Bishan
Tehsil Beri, District Jhajjar
Haryana.
2. Sh. Kumar Mukesh (Owner)
S/o Sh. Preet Singh
R/o RZ111/77, Street No. 5
East Sagar Pur
New Delhi.
3. Bajaj Allianz General Ins. Co. Ltd. (Insurer)
GEPlaza, Airport Road
Yerawada Road, Pune
Maharastra
.........Respondents
FILED ON : 28.02.2012
RESERVED ON : 19.10.2012
DECIDED ON : 25.10.2012
MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 1 of 19
: J U D G M E N T :
1. This is a claim petition filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Respondent no. 1 is the driver, Respondent no. 2 is the owner and Respondent no. 3 is the insurer of the offending vehicle.
Case of the Petitioner:
3. It is stated in this claim petition that on 20.12.10, at about 8.00 a.m., petitioner left Ekta Shakti Foundation, Matiala Village to distribute mid day meals to Govt. Schools in his Auto, Mahendra Champion bearing no. DL1LJ0626, to various schools in Bharthal Village and Kapashera border, Delhi.
4. It is stated that after distributing mid day meals to Govt. Primary Schools at Bharthal Village, the petitioner left for Kapashera Border to further distribute mid day meals. When the petitioner reached near Dwarka Underpass, about 500600 metres from Bharthal Village, at about 9.30 a.m., the petitioner was about to take a turn near Fram House, the offending vehicle bearing no. DL1PA5812, came in a rash and negligent manner, at a high speed and hit the auto of the injured.
5. It is stated that as a result of this accident injured was trapped inside the auto and was not in a position to come out of the auto because of fracture of his right leg and other multiple injuries on his body.
MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 2 of 196. It is stated that petitioner suffered serious and grievous injuries as a result of this accident.
7. It is stated that Respondent No. 1 was driving the offending bus at a high speed which resulted in the accident.
8. It is stated that a call was given to the PCR and injured was immediately taken to Deen Dayal Upadhyay Hospital where he was treated for serious and grievous injuries.
9. It is stated that FIR No. 312/10 was registered against Respondent No. 1 in P.S. Sector23 Dwarka under Section 279/337 of IPC.
10. Petitioner has stated that he had remained admitted in Deen Dayal Upadhyay Hospital from 20.12.10 till 27.12.10 with trauma abdomen and fracture of right leg.
11. It is stated that petitioner was again admitted in the Deen Dayal Upadhyay Hospital on 03.01.11 and was discharged on 19.01.11 with an advise for complete bed rest.
12. Petitioner has stated that he has spent a sum of Rs. 50,000/ on his treatment so far and the treatment is still going on.
13. Petitioner has stated that he was getting a monthly salary of Rs. 12,000/ from an NGO but now he is not able to handle his business any more.
14. Petitioner has claimed Rs. 15,000/ as conveyance charges, Rs. 20,000/ on rich diet and has claimed a total compensation of Rs. 10 lacs with interest @ 18% p.a. from the respondents.
MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 3 of 19Case of Respondent No. 1 and 2:
15. Respondent No. 2 has stated in the written statement that no accident was caused by the vehicle driven by Respondent No. 1.
16. Compensation claimed by petitioner is excessive and exorbitant.
17. On the date of accident, the vehicle was insured by Respondent No. 3 and vehicle was given to Respondent No. 1 after seeing the genuine documents i.e. driving license which was valid and Respondent No. 1 had assured Respondent No. 2 that he is trained and having experience of driving the vehicle and is duly qualified in driving and as such, Respondent No. 3 is liable to pay the compensation.
18. It is also stated that petitioner caused the accident due to his own negligence and therefore Respondent No. 2 is not liable to pay any compensation.
19. Rest of the contents of claim petition were denied. Case of Insurance Company:
20. Insurance company stated in its reply that as per D.A. Report filed by Investigating Officer, driving license was fake. Therefore, insurance company is not liable to pay any compensation as terms and conditions of insurance policy have been violated.
21. It is also stated that the driver has to prove that he was holding authorisation card under Rule 7 of Delhi Motor Vehicle Rules issued to him from concerned Licensing Authority on the date of alleged accident authorising him to MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 4 of 19 drive the vehicle in question.
22. It is also stated that insured must prove that offending vehicle was not being driven in contravention of insurance policy and was being driven under valid permit covering place and date of accident, offending vehicle was being driven with valid fitness on the date of accident and was being used as per general conditions of permit provided under Section 84 and 85 of Motor Vehicles Act.
23. It is stated that in case insured fails to prove the above, then no liability can be fastened upon the insurance company.
24. It is also stated that the policy issued to insured does not cover contractual liability and in case the vehicle was being plied under any contract and was under control of someone else, then insurance company will not be liable to pay any compensation.
25. Insurance company took all defences available to it under Section 134 (c), 147 and 149 of Motor Vehicles Act as well as under Section 64 V B of the Insurance Act.
26. It is also stated that accident, if any, occurred solely due to negligence of petitioner who violated traffic rules and regulations and was driving vehicle no. DL1LJ0626 Mahendra Champion without any driving license and claim petition is bad for non joinder of necessary parties as owner and insurer of vehicle driven by petitioner are not impleaded as a party respondents.
27. Rest of the contents of claim petition were also MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 5 of 19 denied but it was admitted that vehicle no. DL1LPA5812 was insured with the answering respondent in the name of Sh. Kumar Mukesh vide policy no. OG111101181200000040 w.e.f. 02.06.10 to 01.06.11 covering alleged date of accident i.e. 20.12.10 subject to terms, conditions, exceptions and limitations of insurance policy.
28. From the pleadings of parties, following issues were framed:
1) Whether the petitioner received injuries in an accident on 20.12.2010 caused by respondent no. 1, while driving Ashok Leyland (Bus) bearing no. DL1PA5812 rashly and negligently? OPP
2) If yes, what is the amount of compensation which the claimant is entitled to receive and from which respondent? OPP
3) Relief.
Evidence on behalf of Petitioner:
29. Petitioner entered in the witness box as PW1 and stated similar facts in his evidence by way of affidavit as were already stated by him in his claim petition. D.A. Report was proved as Ex. PW1/1, receipts for treatment were proved as Ex. PW1/2, Card of Kumar Dairy to show that petitioner had consumed special diet was proved as Ex. PW1/3.
30. In cross examination, he deposed that he is only Class 8th pass. He proved his driving license as Ex. PW1/D1. He denied a suggestion that his vehicle was overloaded which resulted in the accident. He denied a suggestion that the MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 6 of 19 accident took place due to his own mistake as brakes of his vehicle were not working.
31. He stated that he has no documentary evidence to show that he was earning Rs. 12,000/ per month on the date of accident. He had no documentary evidence for conveyance charges. He is not having any disability certificate in his favour.
32. Suggestions contrary to his case were denied.
33. No witness was examined on behalf of driver. However, owner of the vehicle entered in the witness box and filed his evidence by way of affidavit and stated that he had handed over the vehicle to Respondent No. 1 after seeing genuine document i.e. driving license no. LA4422HD/2011 dated 21.03.02.
34. He deposed that the holder of license was licensed to drive the vehicle in question.
35. He stated that the license was authorised for HTV on 16.08.08 and was valid till 15.08.11.
36. It is also stated that the license to drive Transport Vehicle was valid from 16.08.11 to 15.08.14.
37. It is stated that Respondent No. 1 had assured him that he is a trained driver and is having experience of driving the vehicle and is duly qualified in driving. Driving license of the driver was exhibited as Ex. R2W1/1.
38. In cross examination, he denied a suggestion that he knew that driving license of driver seized by the police during investigation was fake. He deposed that his bus is a MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 7 of 19 Contract Carriage and permit is seized by the Investigating Officer and is part of criminal case record. Copy of permit was given Mark A and renewed permit was exhibited as Ex. R2W1/2. He stated that authorisation card is not necessary for a Contract Carriage and same is necessary for a Stage Carriage. He denied a suggestion that he had given his vehicle to a driver who was not having valid and effective driving license.
39. Witness from Transport Department, Regional Transport Office, Hardoi, U.P. was examined as R3W1 who proved his Service Identity Card as Ex. R3W1/1 and details of license no. 4422HR/11 were exhibited as Ex. R3W1/2.
40. He deposed that on 21.03.02 the license was issued for motorcycle and motor car only but on 16.08.08 endorsement was made for HTV also which was valid till 15.08.11 and is now renewed on 16.08.11 till 15.08.14. This witness was infact summoned by Respondent No. 1 but by clerical mistake he is described as R3W1 whereas he should have been described as R1W1. The day this witness was examined none was present on behalf of insurance company. Therefore the witness was not cross examined on behalf of insurance company.
41. On behalf of insurance company, its Senior Executive (Legal) entered in the witness box. She proved authorisation letter in her favour as Ex. R3W1/1, notice under Order 12 Rule 8 of CPC sent to driver and owner calling upon them to produce original certificate cum insurance policy, registration certificate, permit, driving license and fitness MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 8 of 19 certificate. The postal receipts as per which this notice was sent were proved as Ex. R3W1/34, copy of insurance policy with its terms and conditions was proved as Ex. R3W1/5 and report of District Transport Officer, Manipur which is part of D.A. Report was proved as Ex. R3W1/6.
42. In cross examination, she deposed that at the time of insurance, only cover note is given and policy is sent thereafter. She stated that she has not brought any record with her to show that policy was sent to the insured by post. She stated that such a record is not even available in her office. But she denied a suggestion that insured was never given any insurance policy by the insurer.
43. Arguments were addressed by Sh. Raj Kumar, learned Counsel for petitioner, Sh. Onkar Singh, learned Counsel for owner and written arguments were filed by Ms. Kiran Kumari, Proxy Counsel for insurance company.
44. Counsel for petitioner argued that he was driving a TSR to supply mid day meals prepared by an NGO to Govt. Schools. There is no evidence of educational qualifications of petitioner. Petitioner had suffered trauma abdomen and fracture of both bones right leg. He has not suffered any permanent or temporary disability. He was admitted in Deen Dayal Upadhyay Hospital form 20.12.10 to 27.12.10 and again from 03.01.11 to 19.01.11. He stated that he was confined to bed for atleast six months.
45. In written submissions of Respondent No. 1, the sole objection is that the driving license seized at the time of MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 9 of 19 accident was found to be fake as per investigation report of Investigating Officer and during present proceedings second driving license is produced which is violation of Section 6 of Motor Vehicles Act as two driving licenses were allegedly existing on the date of accident. It is argued that insurance company is concerned with seized driving license which was submitted in D.A. Report and in view of Section 6 of Motor Vehicles Act no one can keep another license.
46. It is stated that insured, by handing over the vehicle to Respondent No. 1 who was holding a fake driving license, violated terms and conditions of insurance policy.
47. It is also stated that there were various violations of policy conditions of Motor Vehicles Act. However, written arguments are silent about various violations of policy conditions and violations of Motor Vehicles Act.
48. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1
49. Burden of proving this issue is on the petitioner.
50. For succeeding in a claim petition under Motor Vehicles Act, it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
51. This is sine qua non for getting the relief.
52. Petitioner himself is an eye witness to the accident. He has stated that on 20.12.10 the offending vehicle Bus MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 10 of 19 bearing no. DL1PA5812 being driven in a rash and negligent manner had hit the auto of the petitioner as a result of which petitioner had suffered serious and grievous injuries.
53. No written statement is filed by Respondent No. 1 who was the best person to deny these allegations. Whereas petitioner reiterated allegations of rash and negligent driving against Respondent No. 1 in his evidence by way of affidavit, but Respondent No. 1 did not cross examine the petitioner on the point of rash and negligent driving. He did not enter in the witness box to prove his innocence or contributory negligence of petitioner.
54. Perusal of site plan shows that the offending vehicle had hit the auto with such a force that it had gone 27 ft away from the offending bus with the impact of the accident.
55. The above would show that Respondent No. 1 was driving the bus rashly and negligently.
56. Police has investigated in the matter and has filed charge sheet against Respondent No. 1 under Section 279 and 338 of IPC which is also prima facie suggestive of rash and negligent driving of Respondent No. 1.
57. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 11 of 19 reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society"
58. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
59. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 12 of 19 Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
60. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants 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 Co. 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 F.I.R No. 955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 13 of 19 vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles 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 the part of the driver."
61. Therefore, this issue is decided in favour of petitioner and against the respondents. ISSUE NO. 2:
62. In the case of Raj Kumar v. Ajay Kumar & Anr. ACJ 2011 (Vol. I), following principles were laid down by the Hon'ble Supreme Court for determining compensation payable to road traffic accident victims:
(i) The compensation payable to the claimant who is a victim of road accident should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equatable manner.
(ii) Compensation payable in injury
cases is payable under two heads. They are
pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) (a) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 14 of 19 of treatment and (b) loss of future earnings on account of permanent disability (iii) Future medical expenses. Nonpecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities (and /or loss of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).
(iii) In routine personal injury cases compensation is awarded only under heads (i),
(ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation is granted under any of the heads
(ii) (b), (iii) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.
63. As per discharge slip of Deen Dayal Upadhyay Hospital, petitioner has suffered trauma abdomen and fracture of both bones of right leg.
64. He was admitted in the hospital from 20.12.10 to 27.12.10.
65. He was again admitted in the same hospital from 03.01.11 to 19.01.11 when open reduction and internal fixation and internal nailing was done. Therefore, he remained admitted in the hospital for 25 days.
66. Therefore, for Pain and Suffering, petitioner is given a compensation of Rs. 40,000/.
67. Petitioner has filed certain receipts of chemists for purchase of medicines and few other receipts total of which is MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 15 of 19 Rs. 20,745/.
68. Petitioner is entitled to a compensation of Rs. 20,745/ towards Cost of Treatment and Cost of Purchase of Medicines.
69. Petitioner has filed Cards of Kumar Dairy from where he was purchasing milk. However, he has not examined the milk supplier. Therefore, on lump sum basis, petitioner is given a compensation of Rs. 7,500/ towards Special Diet.
70. Petitioner is also given a compensation of Rs. 7,500/ towards Conveyance Charges.
71. Considering the fact that petitioner had suffered fracture of both bones of right leg, it can be safely presumed that he would have remained out of work atleast for a period of six months. Minimum rates of wages in Delhi payable to an unskilled workman on the date of accident were Rs. 5,278/ per month. Therefore, for Loss of Wages for six months, he is given a compensation of Rs. 31,668/ (i.e. Rs. 5278/ x 6).
72. Petitioner is also given a compensation of Rs. 5000/, on lump sum basis, towards Attendant's Charges.
73. Therefore, total compensation payable to petitioner would be Rs. 1,12,413/ which will be paid with interest @ 7.5% p.a. (this is the rate of interest which is being awarded by Hon'ble High Court of Delhi at present) from the date of filing of this claim petition which is 28.02.12 till its deposit in the Tribunal.
74. Next question is which of the respondent is liable to pay the compensation to the petitioner.
MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 16 of 1975. As per D.A. Report, driving license shown by Respondent No. 1 was found to be fake and that is why FIR is registered under Section 279, 338, 465 and 471 of IPC.
76. For registering the case under Section 465 and 471 of IPC the Investigating Officer has relied on report of District Transport Officer, Thoubal, Manipur who stated that driving license no. 85282/MTH is standing in the name of one Subir Das, S/o Sh. Jogesh Ch. Das and class of vehicle is two wheeler LMV which was issued on 13.11.08 and was valid till 12.11.13.
77. Entries in a D.A. Report have a presumptive value and are to be considered as correct unless proved otherwise.
78. In this case, owner of the vehicle has entered in the witness box and has stated that he had seen driving license bearing no. LA 4422HD/11 issued on 21.03.02 in the name of Sh. Paramjeet/Respondent No. 1 who was authorised to drive HTV from 16.08.08 to 15.08.11.
79. He further deposed that the license was further renewed from 16.08.11 to 15.08.14.
80. He further deposed that Respondent No. 1 had assured him that he is trained and is having experience of driving the vehicle in question and is duly qualified in driving the same.
81. A witness was also summoned from Transport Department of Uttar Pradesh Administration, Regional Transport Office, Hardoi, U.P. who stated that in the first instance, driving license was issued to Respondent No. 1 on 21.03.02 authorising him to drive motorcycle and motor car MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 17 of 19 only. But on 16.08.08 endorsement was made for HTV also which was valid till 15.08.11.
82. The date of accident is 20.12.10.
83. On the said date, Respondent No. 1 was found to be having a driving license authorising him to drive HTV.
84. This driving license is again renewed on 16.08.11 to 15.08.14.
85. The only argument of counsel for insurance company was with regard to fake driving license of Respondent No. 1.
86. Since Respondent No. 1 has proved that he had a valid and effective driving license, details of which were proved as Ex. R3W1/2, the compensation is to be paid by insurance company.
87. Reliance on Section 6 of the Motor Vehicles Act, 1988 by counsel for insurance company is also misplaced because the said section provides that no person shall, while he holds any driving license for the time being inforce, shall hold any other driving license except a Learner's License or a driving license issued in accordance with provisions of Section 18 or a document authorising, in accordance with the rules made under Section 139, the person specified therein to drive a motor vehicle.
88. When the driving license seized by the police was found to be fake, it cannot be said that Respondent No. 1, while holding driving license was also holding any other driving license as well.
MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 18 of 1989. A fake driving license is no driving license and the only driving license of Respondent No. 1 is Ex. R3W1/2 which is found to be valid and effective to drive HTV vehicle on the date of accident.
90. Therefore, compensation shall be paid by insurance company within 30 days from today under intimation to the petitioner by registered post.
91. Copy of award be given dasti to all the parties.
92. File be consigned to record room.
Announced in the Open Court.
On the 25th day of October, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
MACT No. 250/12 Sh. Ashu v. Sh. Paramjeet & Ors. Page 19 of 19