Delhi District Court
Sh. Ajay Kumar vs Sh. Sunil Kumar on 17 January, 2014
IN THE COURT OF SH. ARVIND KUMAR: PRESIDING OFFICER MOTOR
ACCIDENT CLAIM TRIBUNAL KARKARDOOMA COURTS: SHAHDRA:
DELHI.
M.A.C. Petition No: 91/11
Unique Case ID No:
Sh. Ajay Kumar
S/o Sh. Badri Prasad
R/o S-205A, Pandav Nagar,
Delhi-110092. ...Petitioner
VERSUS
1. Sh. Sunil Kumar
S/o of Not known
Yash Communication, 196, Nayaykhand-I,
Indira Puram, Ghaziabad,
2. Sandhya Purushotam
P.N. Singh
R/o J-4, East Vinod Nagar
Mayur Vihar-II,
Delhi.
3. National Insurance Company Ltd.
Branch Office at:
First Floor, Meerut Karnal Road,
Near Nalapul, Shamli-247776 ...Respondents
Date of institution : 12.07.2011
Reserved for orders : 09.01.2014
Judgment pronounced on : 17.01.2014
JUDGMENT
1. The petitioner has filed present claim under section 166 & 140 of M. V. Act claiming compensation of Rs. 5,00,000/- (Rs. Five Lacs) for the injuries suffered by him in the roadside accident occurred on 04.12.2010.
2. Briefly stating the facts, as stated by petitioner, are that on 04.12.2010 at about 5 p.m.the petitioner was coming from the Nyay Khand- I, Indirapuram M.A.C. Petition No: 91/11 Page No. 1/7 Ghaziabad, towards N.H. 24 on a motorcycle and the offending vehicle bearing No. DL-3CH-5157( Maruti-800 car) came from the wrong side and hit the petitioner. The petitioner suffered multiple fractures in his leg. It is stated that the respondent No. 1 was driving the said vehicle rashly, negligently and at a high speed. The petitioner stated that he was also working in Dr. Batra's Positive Health Clinic Pvt. Ltd, as a dispenser and he was also doing the work of selling of news paper and was earning Rs. 6500/- per month.
3. The respondent No. 1 & 2 did not contest the case and were proceeded ex-parte on 29.05.2012.
4. The respondent No. 3 filed written statement admitting that the vehicle bearing No. DL-3CH-5157, was insured with the National insurance company vide policy No. 461902/31/10/6700014003, valid for the period from 03.12.2010 to 02.12.2011, in favour of Ms. Mamta Sharma. It is stated that the vehicle was being driven without valid and proper driving licence and contrary to the terms of the insurance policy, therefore, the insurance company was not liable to pay compensation. It is stated that the insurance company was taking defences available under section 149 of M. V. Act.
5. On the basis of the pleadings following issues were framed:-
1. Whether the petitioner suffered injuries in the accident occurred on 04.12.2010 due to rash and negligent driving of vehicle No. DL-3CH-5157 ( Maruti Car-800) being driven by respondent No. 1? (OPP)
2. Whether the petitioner is entitled for any compensation, if so, to what amount and from whom? ( OPP)
3. Relief.
6. The petitioner Sh. Ajay Kumar, examined himself as PW-1 and Mohd. Imran, MRD Technician, Shanti Mukund Hospital, Delhi, as PW-2. On the other M.A.C. Petition No: 91/11 Page No. 2/7 hand respondent no. 3/ insurance company examined Sh. Anil Kumar Jain, Administrative Officer, National Insurance Company as R3W1 and Sh. Anil Kumar, UDC, Transport Authority, Shekh Sarai, New Delhi, as R-3W2.
7. I have heard counsels for the parties and gone through the material on record. My findings on the issues are as under:-
Issue No. 18. The petitioner examined himself as PW-1 and deposed that on 04.12.2010 at about 5 p.m. the petitioner was coming from the Nyay Khand-I, Indirapuram Ghaziabad, towards N.H. 24, and a vehicle bearing No. DL-3CH-5157 ( Maruti-800 car) came from the wrong side and hit the petitioner. The petitioner suffered multiple fractures in his leg . The petitioner exhibited the certified copies of criminal case record as Ex. PW-1/1, medical bills as Ex. PW-1/2, bills regarding dressings as Ex. PW-1/3, receipt dated 09.12.2010 as Ex. PW-1/4, receipt of Thakur Diagnostic Centre as Ex. PW-1/5, final bill along with receipts as Ex. PW-1/6( colly) and copy of discharge summary is marked as mark A. During cross-examination, the petitioner stated that at the time of accident he was going on a motorcycle and he was having driving licence. The PW-1 stated that he had noted down the number of the car on his hand.
9. The FIR and testimony of PW-1 taken together fully establish that the injuries were sustained by Sh. Ajay Kumar, involving vehicle bearing registration No. DL-3CH-5157 ( Maruti-800 car) in a road accident. There is nothing on record to dispel the inference that petitioner sustained injuries in a road accident which occurred on 04.12.2010 because of rash and negligent driving of vehicle bearing No. DL-3CH-5157 ( Maruti-800 car), driven by its driver. There is nothing on record to suggest any negligence on the part of petitioner. There is no evidence in rebuttal. The issue No. 1 is accordingly decided in favour of petitioner and against the respondents.
M.A.C. Petition No: 91/11 Page No. 3/7 Issue No. 210. The petitioner deposed that he had suffered fracture of shaft of femur(Left), fracture of lateral condyle of femur( left) with fracture of tibia and fibula ( left) and he was taken to GTB hospital and subsequently treated in Shanti Mukund hospital where he was operated upon for his injuries. The petitioner stated that he was doing the work of distribution of news paper and was earning Rs. 6500/-per month. The petitioner exhibited the certified copies of criminal case record as Ex. PW-1/1, medical bills as Ex. PW-1/2, bills regarding dressing as Ex. PW-1/3,receipt dated 09.12.2010 as Ex. PW-1/4, receipt of Thakur Diagnostic Centre as Ex. PW-1/5, final bill along with receipts as Ex. PW-1/6(colly) and copy of discharge summary as mark A. During cross-examination, the petitioner stated that he did not have any documentary proof to show that he was distributing the news paper and about his income. The PW-1 also stated that he was working with Dr. Batra's Positive Health Clinic Pvt. Ltd, as a dispenser and he remained on earned leave from 04.12.2010 to 23.03.2011 and during this period he was getting Rs. 6000/- per month which was towards his basic salary and he did not get allowances as shown in his salary slip. The PW-1 further stated that he did not have documentary proof to show that the above said leaves were earned leaves. The petitioner stated that he did not have any prescription advising bed rest for the above said period. The PW-1 further stated that there was no effect on his increment. The PW-2, Mohd. Imran, MRD Technician, Shanti Mukund Hospital, Delhi, produced the discharge summary, Ex. PW-2/1.
11. I have gone through the material on record. The discharge summary issued by Shanti Mukund Hospital, Ex. PW-2/1, shows that the petitioner was admitted on 06.12.2010 and was discharged on 10.12.2010. It is recorded in the discharge summary that petitioner had suffered" fracture of shaft femur (left) / fracture lateral condyle of femur left with fracture tibia / fibula (left)". The petitioner has stated that he was doing the work of distribution of news paper and was earning Rs. 6500/- per month and he could not work for about one year. The petitioner has failed to place on record any document with regard to his doing the work of selling news paper and earning Rs. 6500/- per month. The petitioner, during M.A.C. Petition No: 91/11 Page No. 4/7 cross-examination, admitted that he was getting Rs. 6000/- per month towards basic salary during his leave period i.e. from 04.12.2010 to 23.03.2011. The salary slips, Ex. PW-1/7 for the month of November'2010 shows that petitioner was getting salary of Rs. 8667/- and was employed as dispenser in Doctor Batra's Positive Health Clinic Pvt. Ltd. The petitioner continued to get Rs. 6000/- during leave period and, therefore, entitled for the difference of amount between the salary and the amount which was given to the petitioner during leave period. The petitioner remained on leave for about 110 days and during this period he got Rs. 6000/- per month, hence, the difference amount comes to Rs. 10,668/-. It can be easily deduced from the material on record that petitioner must have required services of an attendant for 1-2 months. The bills are for Rs. 80,596/-. Under the facts and circumstances, I consider the following amount to be the just compensation to the petitioner:-
1. Compensation towards pain and sufferings Rs. 60,000/-
2. Loss of earning Rs. 10,668/-
3. Expenses towards medical bills Rs. 80,596/-
4. Compensation towards conveyance and special Rs. 10,000/- diet (without bills)
5. Compensation towards attendant charges @ 2000/- per Rs. 4000/-
month for 2 month Total Rs. 1,64,596/-
Therefore, in my opinion the petitioner is entitled to Rs. 1,64,596/- which shall be the just compensation to petitioner.
Liability
12. The insurance company has examined Sh. Anil Kumar Jain, Administrative officer, as R-3W1. The R-3W1 stated that policy No. 461902/31/106700014003, valid from 03.12.2010 to 02.12.2011, was issued in the name of Mamta Sharma for the vehicle No. DL-3CH-5157 on the basis of proposal form duly filled by insurer Mamta and inspection of the vehicle. The R-3W1 exhibited the copy of policy as R-3W1/1 and proposal form as Ex. R-3W1/2 . The R-3W1 further stated that liability of the company was subject to terms and conditions of the policy. During cross-examination, the R-3W1 stated that at the time of issuing policy it M.A.C. Petition No: 91/11 Page No. 5/7 was informed by the insurer of the vehicle that she had purchased the vehicle and had given the RC for transfer in her name. The R-3W1 stated that they did not inquire while issuing the policy as to whether the RC was actually given for transfer or not and they had never demanded from the insurer a copy of RC transferred in her name.
13. The insurance company also examined Sh. Anil Kumar, UDC, transport Authority, Shekh Sarai, as R-3W2. The R-3W2 stated that he had brought the computerized particulars of the vehicle No. DL-3CH-5157 in the name of Ms. Sandhya Puroshattam since 04.12.2001 and exhibited the relevant documents as R-3W2/1. The R-3W2 further stated that Ms. Sandhya Puroshattam was the registered owner of the vehicle as on 04.12.2010.
14. I have gone through the material on record. The insurance company has failed to state what was the violation of the terms and conditions of the policy, although, they examined two witnesses. Since Insurance company has admitted the policy as on date of accident therefore respondent No. 3/ insurance company is liable to pay the compensation amount.
15. There being no evidence of violation of the policy condition and there being no evidence to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
Relief
16. Following the judgment of " Smt. Bishekha Devi and others Vs. Mohd. Afsar and anothers, MAC. APP. 1087/2012, I am also to award the interest @ 9% p.a on the above said amount of Rs. 1,64,596/- from the date of filing of petition till realization of the amount. Issue No. 3 is answered accordingly.
17. For the aforesaid reasons, I pass the following award:-
AWARD M.A.C. Petition No: 91/11 Page No. 6/7 In view of the above the petition is allowed. The respondent No. 3/ insurance company is liable to pay the compensation of Rs. 1,64,596/-. Hence the respondent No. 3 is directed to deposit a compensation of Rs. 1,64,596/- within one month. The respondent No. 3 shall also pay interest @ 9% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner.
18. The award amount along with interest be deposited by respondent No. 3 with the court, within 30 days. The insurance company shall deposit the awarded amount with interest up to the date of notice of deposit to the claimants with copy to their counsel.
19. The insurance company is directed to give notice regarding the deposit of the amount to the petitioners at the address mentioned in the memo of parties and will also send copy of notice to the counsel for petitioners at his office address mentioned in the vakalatnama.
20. List for reporting compliance on 18.03.2014. A copy of this order be given free of cost to the parties concerned.
Announced in the open ( Arvind Kumar )
court on 17.01.2014 Presiding Officer: MACT
Karkardooma Court
( Shahdara)
Delhi.
M.A.C. Petition No: 91/11 Page No. 7/7