Delhi District Court
Shri Harbhajan Singh vs Shri Ranjeet Singh (Driver) on 21 July, 2012
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENTS CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 151/11/09
IN THE MATTER OF :
1. Shri Harbhajan Singh
S/o Shri Tulsi Ram,
R/o C5, RBlock,
Dilshad Garden,
New Delhi.
... Petitioner
Versus
1. Shri Ranjeet Singh (Driver)
S/o Shri Pritam Singh,
R/o Plot No. 5, Himgiri Enclave,
Nilothi Extension, Nangloi,
New Delhi.
2. Shri Kartar Singh (Owner)
S/o Shri P. Singh
R/o C80C, Tilak Vihar,
New Delhi.
3. IFFCO Tokio General Insurance Co. Ltd. (Insurer)
601604, 6th Floor,
Ansal Imperial Centre,
CBlock, Community Centre,
Naraina Vihar,
New Delhi - 110 028.
... Respondents
MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 1 of 16
Filed on : 07.11.2009
Reserved on : 07.07.2012
Decided on : 21.07.2012
J U D G M E N T:
1. This is a claim petition which is filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Respondent No. 1 is driver of the offending vehicle, Respondent No. 2 is its owner and Respondent No. 3 is the insurer.
3. It is stated in the claim petition that on 29.09.2009 petitioner was coming from Dilshad Garden, New Delhi to domestic Airport, Palam, New Delhi on his scooter (Bajaj) bearing Registration No. DL 6SB 1141 on 29.09.2009 and the scooter was driven by petitioner himself.
4. It is stated that at Mehram Nagar T Point of Airport when the petitioner was turning towards arrival hall at about 8:10 A.M., a TSR bearing Registration No. DL 1RJ 4070 (Bajaj) which was being driven by Ranjeet Singh, Respondent No. 1, at a very high speed, from the side of 1A Terminal, hit the petitioner's scooter from left side.
5. It is stated that the petitioner sustained multiple injuries i.e head injuries (temporal acute SDH) with fracture right clavicle which resulted in loss of consciousness and also resulted in vomiting.
6. It is stated that initially petitioner was admitted in Jai Prakash Narain Apex Trauma Centre, AIIMS but on the same day he was shifted to Indian Spinal Injuries Centre.
7. It is stated that the petitioner sustained 11 stitches on his head and remained admitted in the hospital for 17 days. It is stated MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 2 of 16 that petitioner has spent a sum of Rs. 3,00,000/ on his treatment which is still continuing.
8. Therefore, petitioner claimed a compensation of Rs. 25,00,000/ from the respondents.
9. Written statement was filed by Respondent No. 1 who denied all the averments made in the claim petition and stated that false and wrong report was lodged and police has registered a false case at P.S. Domestic Airport under Section 279/337 of IPC FIR No. 32/09 against him.
10. Written statement is also filed by Respondent No. 2 contents of which are same as the contents of the written statement of Respondent No. 1.
11. Respondent No. 3, insurance company, has stated in its written statement that in case insured wants to take the benefit of policy then he will have to prove that he has not committed any breach of the terms and conditions of the policy and the vehicle at the time of accident was being driven by a person who was not holding a valid and effective driving license and was not qualified to hold the same on the date of alleged accident.
12. It was admitted by Respondent No. 3 that an Insurance Policy bearing No. 70178669 was issued in the name of Shri Kartar Singh in respect of vehicle bearing No. DL 1RJ 4070 for a period from 20.07.2009 to midnight of 19.07.2010.
13. From the pleadings of the parties, following issues were framed: i. Whether petitioner received injuries in an accident on 29.09.2009 at about 8:10 AM due to negligent driving of MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 3 of 16 TSR (Bajaj) bearing no. DL1RJ 4070 driven by Respondent No. 1, owned by Respondent No. 2 and insured with Respondent No. 3?
...... OPP.
ii. If yes, whether petitioner is entitled to any compensation, if so, from whom and to what amount?
....... OPP.
iii. Relief.
14. Petitioner entered in the witness box as PW1. He stated similar facts in his evidence by way of affidavit as were already stated by him in his claim petition.
15. Election Identity Card, Pay Slips for the months of June, July and August 2009, Permanent Account Number, Driving License, certified copy of Chargesheet, Site Plan, Transfer Out Form of JPN Apex Trauma Centre, AIIMS, MLC, Registration Certificate of Offending Vehicle, Driving License of Respondent No. 1, Mechanical Inspection Report of both the vehicles involved in the accident, arrest memo of Respondent No. 1, permit in favour of Respondent No. 2 were exhibited as Ex. PW1/118.
16. In crossexamination, he deposed that he was driving his scooter at a speed of 2022 kms. per hour.
17. He stated that due to this accident his salary was stopped by MDLR Airlines where he was working as a Manager.
18. He stated that he has not filed any document of his treatment in Indian Spinal Injuries Hospital where he remained admitted for nearly 45 days to two months.
19. He stated that although he has not got any disability certificate but he cannot walk even short distances and he has lost MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 4 of 16 vision of right eye.
20. He stated that he was advised bed rest for three months.
21. A suggestion was given to him that he had not suffered any injuries as a result of this accident and the injuries were by falling down. The suggestion was denied.
22. Petitioner also filed his additional evidence by way of affidavit and additionally proved Discharge Summary of Indian Spinal Injuries Centre as Ex. PW1/19, Appointment Letter given by MDLR Airlines Pvt. Ltd. dated 17.10.2006 as Ex. PW1/20, letter of revision of salary dated 24.03.2008 as Ex. PW1/21 and certificates given by employer of petitioner as Ex. PW1/22 and Ex. PW1/23.
23. In crossexamination, petitioner denied a suggestion that even during leave period he continued to get salary from his department. He stated that after the accident he could not join services with MDLR Airlines.
24. Second witness examined by petitioner was Shri Shamin Khan, Accounts Officer of M/s. MDLR Airlines Pvt. Ltd.
25. He proved appointment letter and letter given by company revising the salary of petitioner which were already exhibited as Ex. PW1/20 and Ex. PW1/21.
26. Resignation letter given by petitioner was proved as Ex. PW2/A.
27. Salary slips of the petitioner for the months of June, July and August, 2009 were proved as Ex. PW2/BD respectively.
28. In crossexamination, PW2 stated that the petitioner MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 5 of 16 was appointed on contractual basis and resignation letter was written by petitioner himself.
29. On behalf of insurance company, a witness was summoned from Auto Rickshaw Section, MLO Office, Burari, who was examined as R3W1.
30. This witness proved permit details and fitness details as Ex. R3W1/1.
31. He also proved permit conditions (for Auto Rickshaws) as Ex. R3W1/2.
32. He stated that only that person can drive Auto Rickshaw in whose name permit is issued.
33. Second witness examined on behalf of insurance company as R3W2 was Executive (Legal) of Insurance Company who proved insurance policy of offending vehicle as Ex. R3W2/1.
34. Arguments were addressed by Shri Amir Yadav, learned, Counsel for petitioner and Shri J.P.N. Shahi, learned Counsel for insurance company.
35. It was argued by counsel for insurance company that in this case the permit was in the name of Respondent No. 2 but the offending vehicle was being driven by Respondent No. 1.
36. Therefore, it was argued that recovery rights be given to the insurance company against Respondent No. 1 and Respondent No. 2.
37. On the basis of pleadings of the parties, evidence on record and arguments addressed, issue wise finding are as under: MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 6 of 16 ISSUE NO.1:
38. Burden of proof that the offending vehicle was being driven rashly and negligently is always on the petitioner.
39. It is rather sine qua non.
40. To succeed in a claim petition filed under Section 166 of Motor Vehicles Act claimants have to show that the offending vehicle was being driven rashly and negligently.
41. Petitioner himself is an eye witness. He has stated that the offending vehicle, at the time of accident, was being driven rashly and negligently and had hit his scooter resulting in grievous injuries to him.
42. Respondent No. 1 filed his written statement denying these allegations made against him.
43. Petitioner was crossexamined by counsel for Respondent No. 1 but nothing could be elicited from PW1 to show that Respondent No. 1 was not driving the vehicle rashly and negligently.
44. Respondent No. 1 did not enter the witness box to prove his innocence.
45. Certified copy of chargesheet along with documents submitted with the said chargesheet is on record.
46. Perusal of site plan shows Mark XB is the place where offending vehicle, after the accident, was found standing after turning more than 900 angle.
47. Perusal of site plan shows that the offending vehicle was being driven at a high speed that is why it turned more than 900 after the accident.
MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 7 of 16
48. It is a settled law that test of negligence in a claim petition filed under Motor Vehicles Act is of preponderance of probabilities and not beyond all reasonable doubts as is in a criminal case.
49. Therefore, this issue is decided in favour of petitioner and against the respondents.
ISSUE NO. 2:
50. Petitioner was taken to JPN Apex Trauma Centre after the accident. Treating doctors had prepared MLC where nature of injuries were described as grievous.
51. Petitioner was not treated in that hospital for non availability of bed.
52. Therefore, the petitioner was taken to Indian Spinal Injuries Hospital where petitioner remained admitted from 07.10.2009 to 16.10.2009.
53. The diagnosis recorded on discharge summary is Head Injury (Temporal Acute SDH) with fracture right clavicle.
54. Considering the nature of injuries which are grievous and considering that the injuries were on head resulting in admission of the petitioner in hospital from 7th October, 2009 to 16th October, 2009, for Pain and Agony petitioner is given a compensation of Rs. 50,000/.
55. Petitioner has stated that medical expenses were reimbursed by his employer. Therefore, no compensation is given for cost of medicines and cost of treatment.
56. However, petitioner is given a compensation of Rs. 10,000/ for Special Diet and a compensation of Rs. 10,000/ for MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 8 of 16 Conveyance.
57. Petitioner was an ex employee of Indian Airlines. After his retirement, he was working with MDLR Airlines Pvt. Ltd. Duration of contract initially was for one year but was to be extended through mutual understanding.
58. Employer and employee both had a right to terminate services after serving a one month's notice or payment of salary in lieu thereof.
59. As per claim petition, the age of petitioner at the time of accident was nearly 67 years.
60. The appointment letter does not speak anything about tenure of services of petitioner. Rather it shows that services of petitioner could be terminated at any time after giving him one month notice or payment of salary in lieu thereof.
61. Although petitioner examined an official from MDLR Airlines Pvt. Ltd. but no effort was made by the petitioner to elicit intimation about remaining possible tenure of service of the petitioner with MDLR Airlines.
62. Although as per Ex. PW2/A, petitioner had resigned from services due to poor health on account of accident w.e.f. 05.10.2009 but the petitioner had not suffered any permanent disability.
63. Petitioner was not advised not to take up his employment after his discharge from Indian Spinal Injuries Centre by the treating doctors.
64. Therefore, it is only a guess work how much loss petitioner has suffered on account of resigning from his service due to MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 9 of 16 this accident.
65. In absence of any clear evidence regarding possible tenure of petitioner with MDLR Airlines Pvt. Ltd., petitioner is granted a compensation of Rs. 1,00,000/ on lump sum basis as damages for loosing his job due to this accident.
66. Considering the serious nature of injuries suffered by the petitioner it can be safely assumed that he would have needed an attendant for helping him in his day to day activities.
67. Even if such services were rendered by a family member of the petitioner even then petitioner is to be compensated for attendant's charges for a period of at least three months because the family members were burdened with extra work to look after petitioner only due to this accident.
68. Minimum wages payable to an unskilled worker on the date of accident were Rs.3,953/ per month.
69. Therefore, petitioner would be given a compensation of Rs. 11,859/ towards Attendant's Charges.
70. Resultantly, total compensation payable to the petitioner would be Rs. 1,71,859/. This compensation would be payable with interest @ 9% per annum from the date of filing of this claim petition which is 07.11.2009 till its payment.
71. For granting interest @ 9% per annum reliance can be placed on the judgment of Hon'ble High Court of Delhi in Dhaneshwari & Anr. v. Tejeshwar Singh & Ors.: MAC APP. 997/11 dated 19.03.2012 where in para 72 and 73 the Hon'ble High Court has held as under: MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 10 of 16 "72. In Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. (2011) 11 SCC 269, the interest granted by the National Commission @ 9% was upheld by the Supreme Court. In Sant Singh v. Sukhdev Singh (2011) 11 SCC 632, interest @ 9% per annum was awarded by the Hon'ble Supreme Court. In Raj Kumar v. Ajay Kumar and Anr. 2011 (1) SCC 343, the interest @ 9% p.a. awarded by the Claims Tribunal was approved. In Arvind Kr. Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254, interest @ 9% p.a. was awarded on the enhanced amount of compensation.
73. In these circumstances, I would also follow the Bank rate of interest and would award interest @ 9% p.a. on the enhanced amount."
72. The last question to be answered is which of the respondents is liable to pay the compensation to the petitioner?
73. To escape its liability insurance company is relying upon the evidence of R3W1, Shri Ram Kishan, an official from the Auto Rickshaw Section of MLO Office, Burari.
74. The defence of insurance company is that the permit of the vehicle was in the name of Respondent No. 2 but the vehicle was being driven by Respondent No. 1.
75. For this, insurance company is relying on Ex. R3W1/2 which shows permit conditions for Auto Rickshaws laid down by Transport Department, Auto Rickshaw and Taxi Unit.
76. A perusal of Permit Condition (for Auto Rickshaws) Ex. R3W1/2 shows that following are the conditions for the permit for Auto Rickshaws:
1. The Vehicle shall ply as per the rate / tariff approved by the Govt./State Transport Authority from time to time and exhibited in the meter.
MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 11 of 16
2. The fare distance chart as per the notified fares duly approved by the State Transport Authority shall be displayed prominently available at the back of the seat of the driver inside the vehicle as prescribed by the State Transport Authority.
3. Only electronic fare meters approved and duly calibrated by competent authority shall be installed. The electronic fare meter shall be kept in proper working condition.
4. The number of passengers shall not exceed 3 adults excluding driver. A child of not more than 12 years of age shall be reckoned as half and a child of not more than three years of age shall not be reckoned.
5. The driver shall not refuse to ply any place within the NCT of Delhi or the area specified from time to time.
6. The driver shall not misbehave with the passenger/intending passenger.
7. The driver shall extend help and assistance to all senior citizens and disabled while boarding and alighting the vehicles.
8. The driver shall wear the uniform in grey colour with his/her Public Service Vehicle (PSV) badge prominently displayed on uniform.
9. The driver shall undergo training as may be prescribed by the Commissioner (Transport) from time to time and in the manner prescribed.
10.The vehicle shall display the Helpline No. of the Transport Department on the rear side of the vehicle also name & address of permit holder.
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11.The vehicle shall affix Registration number plate in Braille as per design approved by the Department at the space of prescribed by Transport Department.
12.The permit holder shall inform any change in his/her residential address in form 33 of CMVR 1989 within the stipulated period i.e. within 30 days to the Registering Authority.
13. The permit holder shall exercise such supervision as is necessary to ensure that the vehicle is operated in conformity with the Motor Vehicle Act and the rules made there under.
14.The Permit Holder shall be liable for the suspension / cancellation of the permit for any violation of the permit condition.
15. The vehicle shall be kept neat and clean at all time during the operation.
77. Learned counsel for insurance company conceded that there is no condition in permit that only the vehicle shall be driven by permit holder and not by anyone else even though the said driver was having license to drive TSR.
78. A perusal of permit conditions mentioned above shows that at different places there are references to 'Driver' as well as to 'Permit Holder'. If a vehicle cannot be driven by anyone else except permit holder there was no need to refer to 'Driver' in Condition No. 59 and 'Permit Holder' in Condition No. 10, 1214.
79. In Condition No. 13 'Permit Holder' has to exercise such supervision as is necessary to ensure that the vehicle is operated in conformity with the Motor Vehicles Act and Rules made thereunder.
MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 13 of 16 Supervise is defined to direct, control or be incharge of (work, workers etc.).
80. Therefore, directions to permit holder to exercise such supervision as is necessary to ensure that the vehicle is operated in conformity with the Motor Vehicles Act and Rules made thereunder implies that the vehicle is driven by a person other than permit holder.
81. If the above reasoning is not accepted then it is difficult to explain how a permit holder will supervise himself to ensure that the vehicle is operated in conformity with the Motor Vehicles Act and the Rules made thereunder.
82. In the permit there are different responsibilities cast upon a driver and different responsibilities are case upon permit holder.
83. Therefore, the argument of insurance company that the vehicle was driven by a person other than permit holder and therefore insurance company be given recovery rights is rejected.
84. Moreover, under Section 149 (2) (a) (i) (c) of Motor Vehicles Act an insurer can defend a claim petition on the ground that the vehicle was being used for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle.
85. It is not the case of insurance company that the vehicle was being used for a purpose not allowed by the permit.
86. The defence taken by an insurer should strictly be traceable to any one of the clauses mentioned in Section 149 (2) of the M.V. Act. It is not the breach of each and every condition of policy that would provide the insurance company a defence to disclaim its liability. The condition, which, according to the insurance company, has been MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 14 of 16 violated, should be one, that is mentioned in clause itself.
87. Violation of any of the provision of the Act, violation of any of the rules framed under the act or violation of any of the terms of the permit under the Act cannot be a defence except when it falls within the ambit of Section 149 (2) of the Motor Vehicles Act.
88. In this regard reliance can be placed on National Insurance Company Vs. T. Elumalai & Anr. : (1989) 1 MLJ 489, British India Genl. Ins. Co. Vs. Captain Itbar Singh & Ors. : 1958 ACJ 65 (SC), Bnomang Rustomji Gindwala Vs. Ibrahim Vali Master: 1982 ACJ 380, Raghu Nath Ek Nath Hivale Vs. Shardabai Karbhari Kala: 1986 ACJ 460, Madras Motor and General Insurance Company Vs. Nanjamma:
1977 ACJ 241, Oriental Insurance Company Ltd. Vs. Bishan Dass: 1988 ACJ 106, Oriental Insurance Company Ltd. Vs. Banto Devi: III 2006 ACC 573 and Radhey Shyam Aggarwal Vs. Gayatri Devi & Ors.: 1998 ACJ 1177.
89. In the case of National Insurance Company Ltd. Vs. Rati Ram : MAC Appeal No. 11/2008 decided on 18.01.2008 by Hon'ble High Court of Delhi it was noted that handing over of TSR by registered owner to some other person who was found driving the offending vehicle at the time of accident was violation of terms of permit conditions. However, what were the permit conditions in that case is not evident as per permit conditions are not mentioned therein. Therefore, in view of absence of any such condition in the permit in the present case reliance cannot be placed on the case of Rati Ram (Supra) referred above. Moreover, in the case of Rati Ram (Supra) it was also held that mere use of the vehicle by a person not authorize by the MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 15 of 16 permit being not the registered owner, cannot give right to the insurance company to escape its liability under Section 149 (2) of the M.V. Act, when the use of a particular vehicle in itself is not in contravention with the permit conditions.
90. Therefore, the compensation would be payable by insurance company.
91. Let compensation be now paid by the insurance company within 30 days from today under intimation to the petitioner by registered post.
92. Copy of this order be given dasti to all the contesting parties and file be consigned to Record Room. Announced in the open Court On the 21st Day of July, 2012.
(ARUN BHARDWAJ) MACT2 (South West & Airport) Dwarka: New Delhi MACT No. 151/11/09 Shri Harbhajan Singh Vs. Ranjeet Singh & Ors. Page No. 16 of 16