Delhi District Court
Sh. Kirpa Shankar Sharma vs Sh. Raja Ram Ray (Driver) on 7 March, 2012
IN THE COURT OF SH.ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL
II, DWARKA COURTS, NEW DELHI
MACT NO.: 09/12/09
IN THE MATTER OF :
1. Sh. Kirpa Shankar Sharma
S/o Sh. Ramji Lal Sharma
R/o G4/8, Gali No. 8
Block C1, Sangam Vihar
Delhi.
Also At:
G13, DDA Park, Vijay Enclave
New Delhi45. ......Petitioner.
Versus
1. Sh. Raja Ram Ray (Driver)
S/o Sh. Rameshwar
R/o H.No. 176/177, EBlock
J.J. Colony, Shakarpur
Delhi.
Permanent R/o Village Phool Bariya
P.O. Andra Thadi P.S. Andra, Distt. Madhuban
Bihar.
2. M/s. Chanson Motor Pvt. Ltd. (Owner)
1SD Market, Main Road, Pitampura
Kirpa Shanker Sharma v. Raja Ram Ray & Ors. Page 1 of 16
New Delhi34.
3. National Insurance Co. Ltd. (Insurer)
617 A - 620 Som Dutt Chamber, II,
9Bhikaji Cama Place, New Delhi.
.........Respondents
FILED ON : 16.07.2009
RESERVED ON : 07.03.2012
DECIDED ON : 07.03.2012
: J U D G M E N T :
1. This claim petition is 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 insurance company of the offending vehicle which has insured the vehicle.
3. Facts as stated in the claim petition are that on 14.06.09 at about 12.05 p.m. the petitioner was returning home alongwith Sh. Parveen Sharma on motorcycle bearing no. DL9SAA4158.
4. When the two reached near Metro Pillar No. 673 on Najafgarh Uttam Nagar road, a Tata Sumo bearing registration no. DLIVB2620 driven by Respondent No. 1 in a rash and negligent manner and at a high speed came from wrong side and struck the motorcycle of the petitioner.
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5. Due to sudden impact, the petitioner fell down on the road. The driver of the offending vehicle was caught at the spot and handed over to police.
6. It is stated that the petitioner was taken to DDU Hospital and was shifted to Jeewan Mala Hospital, Karol Bagh on the same night.
7. It is stated that the petitioner had remained admitted in Jeewan Mala Hospital from 14.06.09 to 17.06.09.
8. It is stated that during the treatment period in Jeewan Mala Hospital, the petitioner was operated and iron rods were fixed in both of his legs.
9. It is stated the petitioner has spent a sum of Rs. 1 lac on his treatment.
10. Petitioner has stated that he is undergoing physiotherapy and is paying a sum of Rs. 500/ to the physiotherapist for each visit.
11. Petitioner has further stated that he has to visit Jeewan Mala Hospital on weekly basis and has to spent Rs. 1000/ on conveyance.
12. Petitioner has stated that he was working as field officer /supervisor with M/s. R.E.I. Agro Ltd. and was getting a salary of Rs. 6425/ per month and has suffered loss of income due to this accident.
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13. Petitioner has claimed a compensation of Rs. 20 lacs from the respondents.
14. Respondent No. 1 and Respondent No. 2 were proceeded exparte.
15. Respondent No. 3 filed its written statement and admitted that vehicle no. DLIVB2620 owned by Respondent No. 2 was insured with answering respondent under Policy No. 360901/31/00/6300001500 valid from 20.06.08 to 19.06.09. Rest of the averments made in the claim petition were denied.
16. From the pleadings of parties, following issues were framed:
1) Whether, petitioner have sustained injuries on his person in an accident which took place on 14.06.09 caused due to negligent driving of the vehicle i.e. TATA Sumo bearing registration no. DLIVB2620 being driven by Respondent No. 1, owned by Respondent No. 2, and insured with Respondent No. 3.? OPP
2) In case, issue no. 1 is decided in affirmative then to what amount of compensation, petitioner is entitled to and from whom? OPP
3) Relief.
17. Only petitioner entered in the witness box to prove his case as PW1.
18. Certified copies of documents from the criminal case Kirpa Shanker Sharma v. Raja Ram Ray & Ors. Page 4 of 16 (charge sheet, statement of witnesses, FIR, site plan, MLC, registration certificate of the offending vehicle, driving license of the driver of offending vehicle and arrest memo) were exhibited as Ex. PW1/1 to PW1/7. Pay slip for the month of March, 2009 was exhibited as Ex. PW1/8, treatment record of the petitioner was exhibited as Ex. PW1/9 to Ex. PW1/32. Retail invoice/bills for the cost of treatment were exhibited as Ex. PW1/33 to Ex. PW1/110.
19. During cross examination of PW1, he stated that he himself was driving the motorcycle and exhibited his driving license as Ex. PW1/R3/1. He stated that accident was a head on collision. He admitted that he has not filed any document to show that he had availed any medical leave because of this accident. He also admitted that he has not filed any certificate to show that he had suffered loss of income for one year.
20. The petitioner filed his additional affidavit and placed on record further bills and invoices of medicines purchased for his treatment as Ex. PW1/111 to Ex. PW1/156.
21. In cross examination, he denied a suggestion that he could not work for a period of two years and two months due to injuries sustained in this accident.
22. On behalf of insurance company, its Deputy Manager appeared in the witness box as R3W1 and exhibited several Kirpa Shanker Sharma v. Raja Ram Ray & Ors. Page 5 of 16 documents as Ex. R3W1/1 to Ex. R3W1/7 which are copy of insurance policy, driving license verification report of investigator Sh. Kesar Chand, notice under Order 12 Rule 8 of CPC addressed to Respondent No. 1 and Respondent No. 2 and postal receipts as per which notices were sent to Respondent No. 1 and Respondent No.2. He deposed that Respondent No. 1 and 2 did not supply valid and effective driving license/permit at the time of accident.
23. Second witness examined on behalf of insurance company is R3W2 Sh. Kesar Chand who was Investigator appointed by the insurance company to check the genuineness of driving license of Respondent No. 1. He deposed that he had verified from Mathura office of Motor Licensing Officer and found that the driving license was fake. He exhibited his report as Ex. R3W2/1.
24. Arguments were addressed by Sh. S.K. Singh, learned Counsel for petitioner and Ms. Shalini Rawat, learned Counsel for insurance company.
25. Counsel for petitioner has argued that the petitioner has suffered grievous injuries. He has relied upon Ex. PW1/4 which is certified copy of MLC where nature of injury is shown as grievous to both lower limbs.
26. Counsel for petitioner has relied upon Ex. PW1/74 to argue that petitioner has spent Rs. 54840/ for his treatment in Kirpa Shanker Sharma v. Raja Ram Ray & Ors. Page 6 of 16 Jeewan Mala Hospital.
27. Counsel for petitioner has also argued that petitioner has spent Rs. 16,053/ for his treatment in Vinayak Hospital for which he has relied upon Ex. PW1/138 and another sum of Rs. 1,000/ was spent for the treatment in Vinayak Hospital as per Ex. PW1/116.
28. Relying upon Ex. PW1/156 petitioner has stated that cost of treatment in future would be Rs. 50,000/.
29. In sum and substance, petitioner has claimed a sum of Rs. 2 lacs for cost of medical treatment, cost of medicines and future expenses.
30. Besides this, petitioner has prayed for a compensation towards loss of wages. Relying upon Ex. PW1/8 petitioner has argued that he was drawing a salary of Rs. 6425/ per month and has stated that he has not joined duties till date due to this accident.
31. On the other hand, the argument of learned Counsel for Insurance Company is that petitioner has admitted that it was a head on collision accident and for contributory negligence deduction be made from the compensation.
32. She has further argued that there is no evidence that petitioner had to avail medical leave because of this accident.
33. She has also argued that the driving license was fake and therefore liability of insurance company was denied. Kirpa Shanker Sharma v. Raja Ram Ray & Ors. Page 7 of 16
34. On the basis of pleadings of parties, evidence on record and arguments addressed, issue wise findings are as under: ISSUE NO. 1:
35. Onus of proof of this issue is always on the petitioner. The petitioner has stated in his claim petition that the offending vehicle had hit his motorcycle as the offending vehicle was being driven rashly, negligently, and speedily.
36. Respondent No. 1 did not file any written statement and there is no challenge to the pleadings of petitioner that the offending vehicle was being driven rashly and negligently.
37. In his evidence by way of affidavit, PW1 has repeated the same allegations against Respondent No. 1.
38. PW1 deposed in his cross examination that the accident was a head on collision. However, there was no challenge to his testimony that the offending vehicle was being driven rashly and negligently which caused the accident.
39. From cross examination of PW1, it could not be proved that the accident had not occurred due to rash and negligent driving of driver of offending vehicle.
40. The fact that police has recorded FIR on the complaint of petitioner and has filed charge sheet after investigation into the matter is also prima facie proof of negligence of the respondent no. 1 Kirpa Shanker Sharma v. Raja Ram Ray & Ors. Page 8 of 16 in driving the offending vehicle.
41. Test of rash and negligent driving in a Motor Accident Claim Petition is of preponderance of probabilities and not beyond all reasonable doubts.
42. The contention of counsel for insurance company that the accident being a head on collision and therefore petitioner is guilty of contributory negligence is rejected because it cannot be said that all head on collision accidents have contributory negligence of both the vehicles involved in the accident.
43. To show negligence of petitioner in causing the accident, evidence of Respondent No. 1 was necessary. In the absence of evidence of Respondent No. 1, it cannot be said that merely because it is a head on collision accident, the contributory negligence of drivers of both the vehicles is made out.
44. Perusal of site plan Ex. PW1/3 also reveals that the offending vehicle was coming from the wrong side. Therefore, there is no question of contributory negligence of petitioner in causing the accident.
45. Applying the principles of Res Ipsa Locquitor, this issue is decided in favour of petitioner and against the respondents. ISSUE NO. : 2
46. The compensation payable to the claimant who is a Kirpa Shanker Sharma v. Raja Ram Ray & Ors. Page 9 of 16 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.
47. 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 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).
48. 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 Kirpa Shanker Sharma v. Raja Ram Ray & Ors. Page 10 of 16 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.
49. Injuries suffered by the petitioner are grievous. This is evident from Ex. PW1/4, the MLC. As per Ex. PW1/10 which is emergency card of DDU Hospital, petitioner had suffered fracture of both femur (shaft).
50. Petitioner had remained admitted in hospital from 14.06.09 to 17.06.09. As per Ex. PW1/11 which is discharge summary of Jeewan Mala Hospital interlocking nailing was done in both femurs and proximal and distal locking was done and wound was closed.
51. Considering the nature of injuries which are grievous and considering the fact that it is a case of bilateral fracture shaft femur, for Pain and Suffering petitioner is given a compensation of Rs. 30,000/.
52. Petitioner has stated that he had spent Rs. 58,480/ for his treatment in Jeewan Mala Hospital. This fact is also proved by perusal of Ex. PW1/74. Petitioner has also stated that he has spent a sum of Rs. 17,053/ for his treatment in Vinayak Hospital which is evident from Ex. PW1/116 and Ex. PW1/138.
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53. As per Ex. PW1/40 to Ex. PW1/43, petitioner has spent Rs. 3,000/ for his treatment in Maxx Care Clinic. Therefore, petitioner is given a compensation of Rs. 78,533/ for Cost of Treatment.
54. So far as future treatment is concerned petitioner has deposed that estimate for removal of implants in future would be Rs. 50,000/. He has relied upon the estimate of Dr. Ambar Aggarwal of Max Care Clinic which is Ex. PW1/156. No suggestion was given that the estimate for removal of implants is exaggerated. It is not the case of insurance company that there will be no need for removal of implants in future. Therefore, petitioner is granted a compensation of Rs. 50,000/ for cost of medical treatment to be incurred in future for Removal of Implants.
55. Petitioner has filed original retail invoice/bills of different chemists as well as of blood bank including consultations given by different treating doctors which are totaling Rs. 56,227/. Therefore, for Cost of Medicines Etc. petitioner is given a compensation of Rs. 56,227/.
56. Petitioner has claimed that he has remained out of job for two years. Perusal of discharge summaries, OPD Cards and other prescriptions of the treating doctors do not throw any light on the period of treatment which would have compelled the petitioner to Kirpa Shanker Sharma v. Raja Ram Ray & Ors. Page 12 of 16 remain confined to bed.
57. However, considering that it is a case of bilateral fracture shaft femur, it can be safety presumed that petitioner would have remained out of work at least for three to four months.
58. There is no disability certificate.
59. Petitioner has not examined his employer to prove salary slip Ex. PW1/A.
60. In absence of evidence of salary drawn by the petitioner, reliance can be placed on minimum wages which were Rs. 4000/ per month approximately at the time of accident. Therefore, by giving a relief for Loss of Wages for four months, the petitioner is given a compensation of Rs. 16,000/ for Loss of Wages.
61. Lastly, petitioner is given a compensation of Rs. 5000/ each for Conveyance, Special Diet and Physiotherapy i.e. a total of Rs. 15,000/.
ISSUE NO. 3: RELIEF
62. An award for a sum of Rs. 2,45,760/ with interest @ 7.5% p.a. from the date of claim petition i.e. 16.07.09 is passed in favour of petitioner.
63. The next question is about the liability to pay the compensation.
64. The case of insurance company is that it had served a Kirpa Shanker Sharma v. Raja Ram Ray & Ors. Page 13 of 16 notice under Order 12 Rule 8 of CPC upon owner and driver of the vehicle to produce driving license, valid and effective on the date of accident, original policy, route permit which are Ex. R3W1/3 and 4 respectively.
65. Insurance company has deposed that the notices were sent by registered post and postal slips are Ex. R3W1/5 to 7.
66. Insurance company has also relied upon the report of its Surveyor which is Ex. R3W1/2 as per which fee of the driving license was not entered in the records and the Licensing Authority, Mathura gave his remarks in Form54 that DL No. 11665/MTR/06 is not issued by the said authority in favour of the driver of the offending vehicle.
67. Merely, by sending a notice to produce driving license the insurance company is not absolved of its responsibility to prove breach of terms and conditions of policy.
68. When copy of driving license of the driver of offending vehicle was available on record it was for insurance company to summon appropriate witness from relevant Licensing Authority to show that the driving license was fake. Reliance can be placed on Bajaj Allianze General Insurance Co. Ltd. v. Bhikhari Yadav, MAC APP. No. 727/11, dated 03.01.12 as well as the New India Assurance Co. Ltd. v. Geeta & Ors. MAC APP. No. 553/07, dated Kirpa Shanker Sharma v. Raja Ram Ray & Ors. Page 14 of 16 23.12.11 in this regard.
69. In the case of Bhikhari Yadav, Hon'ble High Court of Delhi has held that: 'It is settled that in order to avoid the liability the onus is on the insurance company to prove that there is breach of the policy conditions by the insured. The breach committed by the insured must be willful, e.g. where the insured entrusts a vehicle to a duly licensed driver and it is unlawfully driven by any other person not holding a valid and effective driving license, it cannot be said that the owner is guilty of willful breach. Similarly, where a vehicle is stolen by a thief holding no license and meets with an accident, it cannot be said that the insured is guilty of a willful breach. Rather, the insured himself is a victim'.
70. Further, dealing with permit, the Hon'ble High Court of Delhi has held that: 'Turning to the second limb of argument i.e. issuance of permit to ply vehicle no. DL1G2715 on the date of the accident, the appellant insurance company did not summon any record from the relevant office of the Delhi Transport Authority that on the date of the accident, the vehicle did not have any permit to ply on the road. Here again, the insurance company failed to discharge the onus that there was breach of the condition of policy in this regard'.
71. Therefore, it cannot be said that the insurance company has proved breach of terms of policy by the insurer. Kirpa Shanker Sharma v. Raja Ram Ray & Ors. Page 15 of 16
72. Resultantly, the compensation would be payable by the insurance company within 30 days from today under intimation to petitioner by registered post.
73. A copy of this order be given to all the parties free of cost.
74. File be consigned to record room.
Announced in the Open Court On the 07th Day of March, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL, DWARKA COURTS, NEW DELHI.
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