Delhi District Court
Sh. Brij Mohan S/O Sh. Girish Chand vs Sh. Kailash Chaudhary on 14 July, 2009
: 1 :
IN THE COURT OF MS. ANJU BAJAJ CHANDNA:
JUDGE: MACT (OUTER): ROHINI: DELHI
PETITION NO: 175/09
1. Sh. Brij Mohan s/o Sh. Girish Chand
R/o B274A, Aman Vihar,
Kirari Suleman Nagar,
Delhi 110041
.......Petitioner
VERSUS
1. Sh. Kailash Chaudhary
s/o Sh. Paras Nath Chaudhary
R/o H.N. F320, Mangol Puri,
Delhi 110083 (Driver)
2. Sh. Navjot s/o Sh. Din Dayal,
R/o 8/10, Geeta Colony,
New Delhi 110031 (Owner)
3. M/s IFFCO TOKIO General Insurance Co.Ltd.
Fai Building, 10 Shaheed Jeet Singh Marg,
Qutab Institutional Area, New Delhi110067
Cover Note No. 34415583
Valid From 24.03.2007 to 23.03.2008 (Insurer)
....... Respondents
Brij Mohan vs. Kailash Choudhary : 2 : DATE OF INSTITUTION: 26.07.2007 CASE TRANSFERRED TO THIS COURT ON: 24.10.2008 JUDGMENT RESERVED ON: 14.07.2009 DATE OF JUDGMENT: 14.07.2009 AWARD :
1. The petitioner seeks compensation for the accidental injuries by way of present petition filed u/Sec. 166 & 140 of Motor Vehicles Act, 1988. The claim of Rs.8,00,000/ is put forth by the petitioner as against all the respondents.
2. According to the petitioner on 05.06.2007 at about 10.15 pm, he was going home after finishing his duties while travelling in a TSR. At Tblock, near Gas Agency, Sultanpuri road, Mangolpuri, Delhi, another TSR bearing registration No. DL 1RH1270 driven by respondent no.1 came all of a sudden at a high speed and hit the TSR of the petitioner with force. As a result of the accident, petitioner sustained grievous injuries of compound fractures on his right leg and also injuries on other parts of his body. The petitioner was taken to Sanjay Gandhi Memorial Hospital for treatment. It is contended that accident had taken place due to the rash and negligent driving of respondent no.1. The Brij Mohan vs. Kailash Choudhary : 3 : petitioner has suffered loss of income and now, he would not be able to do his work properly. The petitioner was working as a machineman in a shoe factory at Wazipur JJ Colony and was getting Rs.4500/ per month as his salary. Due to the injuries, petitioner shall not be able to walk properly and has become permanent disabled person. The petitioner claims to have incurred around Rs.30,000/ on his treatment, medicines, conveyance, special diet etc. besides having suffered pain, agony and inconvenience.
3. Respondent no.1 filed written statement taking preliminary objections about suppression of material facts by the petitioner. It is stated that respondent was not driving the vehicle at the time of accident and also he has not been the driver of respondent no.2. The respondent was rider of the vehicle upon which the petitioner was travelling and in order to grab the money, the petitioner has falsely averred the involvement of the answering respondent. Further controverting the case of the petitioner on merits, it is specifically denied that on 05.06.2007 at about 10.15 pm, the accident had taken place due to the rash and negligent driving of respondent no.1. All other averments of the petitioner are denied and it is prayed that petitioner be dismissed with costs.
Brij Mohan vs. Kailash Choudhary : 4 :
4. Respondent no.3/insurance company filed separate written statement taking preliminary objections about maintainability of the petition in the present form. It is stated that there is no liability of insurance company to indemnify the alleged owner unless it is proved that he was the registered owner as on the date of accident and the person who was driving the vehicle was holding valid and effective driving licence and was not otherwise disqualified. It is also pleaded that subject to various terms and conditions of the policy being not violated, insurance company can be made liable for payment of compensation. On merits, it is admitted that vehicle bearing registration No. DL1RH1270 was insured with the insurance company. Further denying the case of the petitioner, it is prayed that same be dismissed.
5. Respondent no.2 has not contested the case and therefore, exparte order was passed on 19.11.2007.
6. From the pleadings of the parties, the following issues were framed vide order dated 13.03.2008 :
1. Whether on 05.06.2007 at about 10.15 pm, at TBlock, Sultanpuri Road, TSR No. DL1RH1270 which was being driven rashly and negligently by R1 hit TSR in which petitioner was travelling and caused injuries to him?
Brij Mohan vs. Kailash Choudhary : 5 :
2. Whether R1 himself was travelling as a passenger in TSR of the petitioner? OPP.
3. Whether petitioner is entitled to compensation as prayed for, if so, from which of the respondents? OPP.
4. Relief.
7. The petitioner, in support of his case has examined himself as PW1 by tendering his affidavit in evidence Ex. PW1/A giving the entire details of the accident as well as of the treatment alongwith the documents. Petitioner has been crossexamined on behalf of the respondent no.3/ insurance company.
8. PW2 Sh. Rakesh Kumar has proved the MLC of the petitioner Ex. PW2/1.
9. PW3 Ct. Rajesh has proved the FIR registered relating to the accident Ex. PW3/1 and thereafter, petitioner closed his evidence.
10. On the other hand, respondent no.1 has examined himself as RW1 by tendering his affidavit in evidence Ex. RW 1/A. He has also been crossexamined on behalf of the petitioner.
11. RW2 Ayodhya Prasad has brought the record of Circular No.03/2833 dated 19.08.2003 and proved the same vide Brij Mohan vs. Kailash Choudhary : 6 : Ex. RW2/A. Thereafter, evidence of the respondents was closed.
12. I have heard Ld. Counsel Sh. B.L. Khurana for the petitioner and Ld. Counsel Sh. G.L. Chawla for respondent no.3/insurance company and given due consideration to the facts and circumstances of the case, evidence and the record.
13. My findings on the above mentioned issues are as follows : ISSUE NO. 1
1. Whether on 05.06.2007 at about 10.15 pm, at TBlock, Sultanpuri Road, TSR No. DL1RH1270 which was being driven rashly and negligently by R1 hit TSR in which petitioner was travelling and caused injuries to him?
14. It is the case of the petitioner that he was travelling in the TSR on 05.06.2007 and the accident was caused by respondent no.1 due to the rash and negligent driving of TSR No. DL1RH 1270. On the other hand, it is pleaded by respondent no.1 that he was rider of the vehicle upon which the petitioner was travelling. However, in the affidavit Ex. RW1/A respondent no.1 has denied his own version and stated that he was passenger of another vehicle at the time of accident and has been falsely implicated by the Brij Mohan vs. Kailash Choudhary : 7 : petitioner. The petitioner has categorically, detailed the manner of accident in the affidavit, but he has not been crossexamined on behalf of respondent no.1 despite opportunity afforded. It is also corroborated by the report of investigating officer of case FIR that respondent no.1 was driver of offending TSR and was arrested in this case. Respondent no.1 has failed to explain any reason about his false implication at the hands of the petitioner or the investigating officer. Respondent no.1 did not controvert the testimony of the petitioner at any stage so as to put his defence to him. In view of the consistent and confident testimony of the petitioner, I am convinced that accident had taken place due to the rash and negligent driving of respondent no.1. Respondent no.1 has been taking contradictory defences and has failed to prove any defence taken by him on the record and therefore, no reliance can be placed on his version. With these observations, I conclude that respondent no.1 was rash and negligent and caused the accident with resulted into grievous injuries to the petitioner. This issue is decided in favour of the petitioner.
Brij Mohan vs. Kailash Choudhary : 8 : ISSUE NO.2 : Whether R1 himself was travelling as a passenger in TSR of the petitioner? OPP.
15. The respondent no.1 has taken the plea that he was travelling as passenger in TSR of the petitioner but changed the version in the affidavit and therefore, cannot be believed upon. The respondent no.1 has also failed to give the number of the TSR wherein allegedly the petitioner and respondent no.1 were travelling together. The plea taken by respondent no.1 is without any merit or substance and therefore, this issue is decided in favour of the petitioner and against the respondents. ISSUE NO. 3 : Whether petitioner is entitled to compensation as prayed for, if so, from which of the respondents? OPP.
16. The petitioner as is evident from the record has suffered grievous injuries in the accident and therefore, is entitled to just and reasonable compensation for the same. According to the affidavit of the petitioner as well as documentary evidence, it is clear that petitioner got admitted thrice in the hospital for the Brij Mohan vs. Kailash Choudhary : 9 : treatment of the injuries. Petitioner has also filed bills to show the expenses incurred by him which amounts to Rs.8104/. Considering the facts and circumstances and the nature of injuries, an amount of Rs.10,000/ is granted towards medical expenses to the petitioner. To this an amount of Rs.3,000/ is added towards conveyance, Rs.2,000/ is added towards special diet and Rs.4,000/ is added towards attendant's charges.
17. The petitioner has also suffered loss of wages due to the accident. In my opinion, considering the facts and circumstances of the case, petitioner is entitled to loss of income for four months due to compound fractures. There is no evidence about the salary of the petitioner as alleged to the tune of Rs.4,500/ per month and therefore, in these circumstances, according to minimum wages schedule the income of the petitioner is taken to Rs.3470/ per month. Accordingly, an amount of Rs.13,880/ (3470 x 4) is granted to the petitioner towards the loss of income for four months.
18. Lastly, the petitioner is also entitled to reasonable compensation on account of having suffered pain and sufferings due to the accident therefore, an amount of Rs.30,000/ is granted to the petitioner towards pain and sufferings.
Brij Mohan vs. Kailash Choudhary : 10 :
19. In view of the above, the total compensation payable to the petitioner is as under :
1. Medical Treatment & medicines Rs. 10,000.00
2. Special Diet Rs. 2,000.00
3. Conveyance Rs. 3,000.00
4. Attendant's charges Rs. 4,000.00
5. Loss of Income Rs. 13,880.00
6. Pain and Sufferings Rs. 30,000.00 Total Rs. 62,880.00 Amount rounded off to Rs.63,000/.
20. So far as the liability to pay the compensation is concerned, it is of the respondent no.1 and 2 being the driver and owner of the offending vehicle. The vehicle was duly insured as on the date of accident and therefore, insurance company has to first satisfy the awarded amount. The Ld. Counsel for insurance company has prayed for recovery rights in view of 'National Insurance Co. Ltd. vs. Ram Rati and Ors. 2008 ACJ 2758'. In accordance with the testimony of RW2 it is clear that offending TSR was being driven by respondent no.1 in violation of terms and conditions of the permit as issued vide Circular dated 19.08.2003 Brij Mohan vs. Kailash Choudhary : 11 : Ex. RW2/A. The registered owner/R2 has violated the terms of the permit by handing over the TSR to respondent no.1. According to the terms and conditions of the permit, the TSR could not be driven by a person not holding the permit and it should have been driven by the registered owner himself. It says 'The autorickshaw permit shall not be transferable and autorickshaw shall be driven by the permit holder himself.". Since, the TSR was being used in violation of the terms and conditions of the permit and also insurance policy, the recovery rights are hereby granted to the insurance company to recover the awarded amount after paying the same from respondents no.1 and 2. The issue is disposed off accordingly.
RELIEF :
21. In view of the above discussions, the petitioner is held entitled to a sum of Rs.63,000.00 as compensation to be paid by R 3/Insurance Company alongwith interest @ 7.5% per annum from the date of institution of the petition till its realization.
22. Respondent no.3 IFFCO TOKIO General Insurance Company is directed to deposit the cheque of compensation in the Brij Mohan vs. Kailash Choudhary : 12 : name of the petitioner within 30 days before this Tribunal. The insurance company may recover the amount from R1 and R2 by way of filing execution petition. The petition is disposed off in aforesaid terms. File be consigned to record room.
ANNOUNCED IN THE (ANJU BAJAJ CHANDNA)
OPEN COURT JUDGE MACT : ROHINI (OUTER)
ON 14th Day of July, 2009 DELHI.
Brij Mohan vs. Kailash Choudhary
: 13 :
Suit No. 175/09
14.07.2009
Pr: Counsel Sh. B.L. Khurana for the petitioner
Counsel Sh. G.L. Chawla for R3/insurance company Arguments refreshed.
Fixed for orders after lunch today.
JUDGE: MACT (OUTER) ROHINI AT 2.00 PM.
Pr: None Petition disposed off vide my separate judgment announced in the open court. File be consigned to record room.
(ANJU BAJAJ CHANDNA) JUDGE MACT : ROHINI (OUTER) DELHI.
Brij Mohan vs. Kailash Choudhary