Delhi District Court
The vs . on 31 August, 2013
1
IN THE COURT OF MS. PREETI AGRAWAL GUPTA:
ADJ CUM JUDGE: MACT(NORTH): ROHINI: DELHI
Case No.95/09
Sh. Dinesh s/o Sh. Umrao Singh
r/o Village and PO Nahari, PS Kundli
District Sonepat, Haryana.
nd
2 address: Gali no. 4, Gautam Colony
Narela, Delhi.
Vs.
1. Sh. Rajuddin s/o Sh. Ali Mohd.
r/o House no. 72, Nai Basti, Village Banker
Narela, Delhi.
2. Sh. Shamim s/o Sh. Ranbir Singh
r/o Village Nahari, District Sonipat,Haryana.
3. IFFCO Tokyo General Insurance Company Ltd.
505, Kailash Building, 26, K. G. Marg, New Delhi.
....Respondents
DATE OF INSTITUTION : 17.05.2007
JUDGMENT RESERVED ON : 26.08.2013
DATE OF JUDGMENT: 31.08.2013
AWARD:
1. The petitioner has filed the present claim petition by way of the present petition under Section 166 and 140 of the Motor Vehicle Act seeking compensation for permanent disability caused by the accidental injuries sustained by the petitioner. It is the case of the petitioner that on Case No. 95/09 Dinesh Vs. Rajuddin 2 10.05.07 at about 10:50 p.m while the petitioner was driving RTV No. DL1VA1232 and going towards village Nahari from Narela Delhi and reached at Main Lampur Road, near village Lampur, Police Picket, Narela, Delhi, then the alleged vehicle/ tractor in question bearing no. HR 10J5802 , being driven by its driver at a very high speed, came in a zigzag manner and hit against the RTV, which was being driven by the petitioner. As a result of forceful impact, the petitioner got entangled in the RTV which he was driving and sustained grievous injuries all over his body.
2. The petitioner was taken to Raja Harish Chander Hospital from where he was discharged on the next day. It is claimed that the petitioner has lost the vision of his right eye and was operated at Gurunanak Eye Centre where he was admitted twice. It is claimed that the petitioner has incurred medical expenditure of more than Rs. 25,000/ on his treatment and that he has suffered permanent disability due to the accident. The FIR No. 246/2007 under Section 279/337 IPC at PS Narela was registered in respect of road accident in question. It is the case of the petitioner that the offending Tractor bearing no. HR10J5802 was being driven by respondent No. 1 at a very high speed in a rash, Case No. 95/09 Dinesh Vs. Rajuddin 3 negligent and reckless manner, as a result of which, it hit the RTV being driven by petitioner, thereby causing him grievous injuries on his body resulting in permanent disability.
3. The petitioner is a young man and was 26 years of age at the time of accident. It is the case before the court that the petitioner suffered multiple and grievous injuries due to the road accident in question. It is averred that the petitioner was a RTV driver and was earning Rs. 10,000/ per month. It is averred that the petitioner has suffered mentally, physically as well as financially and has prayed for compensation for the permanent disability, pain and agony, conveyance, special diet and loss of income, etc. claim of Rs.5,00,000/ is claimed by the petitioner.
4. The respondent No.1 is the driver and the respondent No.2 is the owner of the offending vehicle, who filed their joint written statement denying the occurrence of the very accident in question. The respondents have submitted that the alleged accident was not caused by rash and negligent driving of respondents. It is, however, admitted that the respondent No.1 is the driver and the respondent No.2 is the owner of the offending vehicle, which is stated to have been insured with respondent No.3/M/s. Iffco Tokyo Case No. 95/09 Dinesh Vs. Rajuddin 4 General Insurance Company Limited for the relevant period of the accident. However, it is denied that the petitioner is not entitled to get any compensation from the respondents as the respondents as well as the alleged vehicle was never involved in the alleged accident and the respondent no. 1 & 2 have been falsely implicated in this case just to extort money from them.
5. The respondent No.3/Insurance Company filed written statement taking preliminary objection that it had no liability, if respondent No.1 was not holding a valid and effective Driving Licence at the time of driving the offending vehicle as on the date of accident. It is also case of the Insurance Company that the alleged vehicle was being used in contravention of the terms and conditions of the insurance policy, for non agricultural purposes, denying its liability to indemnify the owner. It is, however, not denied that the offending vehicle was duly insured with it as on the date of accident. It is alleged that the petitioner is not entitled to claim any amount by way of compensation from the respondents because the injuries, if any, sustained by the petitioner is because of his own negligence and not because of any negligence on the part of the driver of the tractor as alleged in the claim petition and hence, denying Case No. 95/09 Dinesh Vs. Rajuddin 5 its liability to pay any compensation to the petitioner. The claim of the petitioner has been denied and its own liability has also been denied.
6. From the pleadings of the parties, following issues were framed vide order dated 28.11.2007:
1. Whether on 10.05.07 at about 10:50 p.m, RTV No. DL IVA 1232 in which petitioner was travelling was hit by tractor no. HR 10J5802 which was being driven rashly and negligently by its driver and caused injuries to the petitioner?OPP
2. Whether the offending vehicle was being used in contravention to conditions of the policy? OPR3
3. Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP
4. Relief.
7. There are three witnesses who have been examined in support of the petitioner's case. PW1 Dinesh is the injured who has deposed regarding the occurrence of the accident in question. PW1 has deposed that on 10.05.07 at about 10:00 p.m., he was driving his RTV No. DL1VA1232. It is deposed that there were some other passengers sitting in RTV besides the two injured namely Satbir and Vinod. It is deposed that the offending tractor bearing no. HR10J5802 came at a very high speed in a zig zag manner from village Nahri side and hit the RTV being driven by Dinesh/ deposing witness. It is deposed Case No. 95/09 Dinesh Vs. Rajuddin 6 that due to forceful impact of the accident, Dinesh (petitioner) received multiple deep injuries on his body and also injuries on his forehead above the right eye. It is deposed that the accident was caused due to sole negligence of the driver of the alleged offending tractor. Thereafter, PW1 has testified that he was taken to Raja Harish Chander Hospital where he underwent hospitalisation for one day and had tendered his treatment record as Ex. PW1/1 to Ex. PW1/12. It is deposed that he has lost his vision of right eye for which he has been assessed with permanent disability from the concerned Government hospital. PW1 claimed to have spent considerably on conveyance, medicines, special diet due to injuries sustained in the accident. He has tendered medical bills Ex. PW - 1/13 to Ex. PW - 1/22. It has been testified by PW1 that he was a driver by profession prior to the accident in question and has tendered driving licnece for commercial vehicle as Ex. PW - 1/23. PW1 has deposed that the accident has rendered him disabled due to which he was unable to drive the commercial vehicle. PW1 has further deposed in support of the claim of earning Rs. 10,000/ per month and that he is not the registered owner of the victim vehicle/RTV in question.
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8. PW1 Dinesh, in crossexamination, has denied the suggestion that he was driving the victim RTV after consuming alcohol. It is admitted that there were other passengers in RTV at the time of accident but explained that they were not paid passengers. Number of suggestions have been put to attribute negligent driving of the RTV by PW1/Dinesh which have been categorically denied. PW1 has retestified that the offending tractor was being driven at high speed and was loaded with goods due to which it started wobling. It is also denied that the offending tractor was running on the correct side of the road. On the aspect of treatment, it is denied that PW1 did not receive any treatment after 17.08.07 till April 2008 as claimed and also denied the suggestion about not incurring the claimed expenses. It is denied that he was not earning as claimed. PW1 was recalled for re examination after he underwent an operation after his testimony was recorded. On reexamination, PW1 has tendered his treatment record of operation on 02.01.09 as Ex. PW 1/Z and bills are Ex. PW - 1/Y. FIR and MLC have also been filed collectively as Ex. PW1/X. By this time, the other two witnesses of the petitioner had been recorded and therefore the disability certificate Ex. PW3/A Case No. 95/09 Dinesh Vs. Rajuddin 8 has been retestified. In further cross examination, it has been admitted that Dinesh received free treatment. It has been categorically denied that he did not suffer any permanent disability or that the bills Ex. PW1/Y were false and fabricated.
9. Injured Vinod of the same road accident, appeared in the witness box as PW2. He has narrated the same version of accident as of PW1. PW2 has deposed that the accident in question has been caused by the offending tractor bearing no. HR10J5802 due to rash and negligent driving by its driver, thereby hitting the RTV in which PW2 was travelling. PW2 has deposed that due to the accident, he has received fracture of his clevical bone and was removed of Raja Harish Chander Hospital. Thereafter, he took treatment from Dr. Mukesh Orthopedic and Trauma Centre. The witness has tendered his medical treatment record vide Ex. PW2/1 to Ex. PW2/3. PW2 has deposed that he was working as an electrician and earning Rs.6,000/ to Rs. 7,000/ per month and was unable to resume his work for about five months due to the accident. PW2 has further deposed that he had spent up to Rs.15,000/ on his treatment, Rs.10,000/ on special diet and conveyance . The witness has tendered bills Ex. PW Case No. 95/09 Dinesh Vs. Rajuddin 9 2/4 to PW2/11 and MLC Ex. PW2/A on record. It is deposed by PW2 that he was not fully recovered and underwent pain and discomfort at the time of changing weather season. The witness has been crossexamined to suggest that the accident in question was caused due to negligence on the part of Dinesh himself who was the driver of the RTV in which the injured persons were travelling. However, PW2 categorically denied all such suggestions. PW2 admitted that he did not have any documentary proof of income or loss of months of earning. He denied that he had not incurred expenditure on his treatment as claimed.
10. Dr. Vinod Kumar, Sr. Resident from Guru Nanak Eye Hospital has appeared as PW3 who has deposed that he had examined the patient Dinesh (one of the injured who has been disabled) and the Medical Board found permanent disability of 30% in relation to right eye. He has proved the disability certificate of injured as Ex. PW 3/A. The witness has deposed that the visibility of right eye of petitioner has entirely gone. He was cross examined by Ld counsel for insurance company wherein the witness has deposed that the disability is assessed and issued in accordance with guidelines notified by Delhi Case No. 95/09 Dinesh Vs. Rajuddin 10 Government which were applicable at the relevant time. The Medical Doctor has expressed his expert opinion that there were no chances of improvement in the vision of right eye of the patient.
11. One more petitioner witness , with inadvertent nomen clature as PW3 , has tendered his evidence on record. This witness is the third injured Satbir himself who has testified in support of the averments of the petition vide his affidavit of chief examination as Ex. PW 3/A. The medical treatment record of injured Satbir is tendered as Ex. PW 1/1 to Ex. PW1/4 and medical bills collectively as Ex.PW1/5. In crossexamination, it has been denied that the injured had consumed alcohol while travelling in RTV and also denied the suggestions about occurrence of the accident due to rash and negligent driving of the RTV itself. It is deposed that the offending vehicle was a tractor with attached trolley which was loaded with sand. On the aspect of medical treatment, it is admitted that injured Satbir was discharged from Raja Harish Chander Hospital on the same day. He denied that he did not undergo treatment subsequently or that he did not incur medical and ancillary expenditure and loss of income as claimed.
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12. No other witness has been examined and petitioner evidence has been closed.
13. Respondent no. 3/ Insurance Company has examined one witness namely Mr. Vikas Mann, an Officer of the Insurance Company. He has tendered his affidavit Ex. R3W1/A in his chiefexamination. The policy schedule cum certificate of insurance company in favour of registered owner/Shamim in respect of Tractor bearing registration no. HR10J5802 is admitted for the relevant period of the accident and tendered as Ex.R3W1/1. The copy of notice U/o 12 Rule 8 CPC issued on behalf of the insurance company to driver and owner in question is Ex. R3W1/2 which is issued for production of valid driving licence of the driver of offending vehicle in question. The postal receipts are proved as Ex. R3W1/3 and Ex. R3W1/4 in favour of driver and owner. The returned envelop is relied upon as Ex.R3W1/5. The Insurance witness has categorically deposed that the respondent nos. 1 and 2 i.e driver and owner respectively, failed to produce any valid driving licence for the offending vehicle in question , as on the date of accident. The witness relied upon copy of DL seized by the IO as Ex. R3W1/6. On crossexamination, the witness admitted that he was not Case No. 95/09 Dinesh Vs. Rajuddin 12 the signatory on behalf of the insurance company for filing the vakalatnama or written statement. The witness categorically denied that there was no breach or violation of the terms of the insurance policy in respect of the offending vehicle in question. No further RE has been led on behalf of insurance company. Respondent no. 1 and Respondent no. 2 did not offer any defence evidence.
14. The court has duly heard the Ld. Counsels for the petitioner and the respondents. The pleadings and material on record have been duly appreciated. The pleadings and material on record have been duly appreciated. The Court has also duly considered the law applicable to the facts of the case and the binding authorities of the Hon'ble Superior Courts relevant to the case. The issues in the petition are being adjudicated as under: ISSUE NO 1: Whether on 10.05.07 at about 10:50 p.m, RTV No. DL IVA 1232 in which petitioner was travelling was hit by tractor no. HR 10J5802 which was being driven rashly and negligently by its driver and caused injuries to the petitioner?OPP According to the petitioner, the accident was caused by rash and negligent driving of respondent no.
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1/driver of the offending Tractor bearing no. HR10J5802. The petitioner/injured Dinesh has specifically testified as PW1 that the respondent no. 1 was driving the offending tractor at a high speed in a zigzag manner and hit the RTV bearing no. DLIVA1232 which was being driven by petitioner. Due to the forceful impact, the petitioner received serious multiple injuries on his body besides abrasion and blunt injuries all over his body. PW1 Dinesh is the driver of the victim RTV who has been injured in the road accident in question and has also suffered permanent disability which is duly proved. The other two injured namely PW2 Vinod and PW3 Satbir have duly supported and corroborated the version of occurrence of accident testified by PW1/Dinesh. The averments in the petition and the deposition of the petitioner/injured is unbreached and uncontroverted on the aspect of the occurrence of the accident and the involvement of the offending tractor which hit the RTV being driven by the petitioner. The offending tractor bearing no. HR10J5802 and RTV No. DL1 VA1232 was found in accidental condition on the spot of accident. Both the offending truck and the RTV of the petitioner were seized during investigation on registration of an FIR for the road accident in question. The testimony Case No. 95/09 Dinesh Vs. Rajuddin 14 of petitioner/injured is duly corroborated by testimonies of the other two injured in the same road accident in question. Despite respective crossexamination of each of the three injured as deposing witnesses at length, no contradiction or inconsistency could be brought forth as regards the manner and occurrence of the accident in question.
16. On the aspect of "rash and negligent driving"law has been well settled in this regard. The Hon'ble High Court of Delhi in National Insurance Company Ltd. Vs. Gita Bindal & Ors. in MAC APP. No. 179/2004 vide judgment dt. 12.10.2012 has passed binding guidelines on the principle of "Doctrine of Res Ipsa Loquitur". The Hon'ble High Court of Delhi have been pleased to discuss the law of Res Ipsa Loquitur and has been pleased to summarize the principles.
It has been held that "Res ipsa Loquitur means that the accident speaks for itself. In such cases, it is sufficient for the plaintiff to prove the accident and nothing more". ...
It has been further laid down that"Res ipsa Loquitur is an exception to the normal rule that mere happening of an accident is no evidence of negligence on the part of the driver. This maxim means the mere proof of Case No. 95/09 Dinesh Vs. Rajuddin 15 accident raises the presumption of negligence unless rebutted by the wrongdoer." ...
It has been further appreciated that"the effect of doctrine of 'res ipsa loquitur' is to shift the onus to the defendant in the sense that the doctrine continues to operate unless the defendant calls credible evidence which explains how the accident of mishap may have occurred without negligence, and it seems that the operation of the rule is not displaced merely by expert evidence showing, theoretically, possible ways in which the accident might have happened without the defendant's negligence. The doctrine of 'res ipsa loquitur, therefore, plays a very significant role in the law of tort and it is not the relic of the past, but the living force of the day in determining the tortuous liability."
A case has been built up by the insurance company to allege contributory/composite negligence upon the petitioner/driver of the RTV with which the offending tractor trolley collided from the front. It is alleged that the accident was a head on collision and has relied upon certain authorities with the contention that the petitioner was also responsible for the accident in question which would have been avoided if he was vigilant and cautious.
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The facts of the case have been carefully appreciated. There are duly corroborated testimonies of the three injured in the road accident including the petitioner and their testimonies are unbreached . PW1 to PW3 have consistently attributed the occurrence of the accident to rash and negligent driving of the driver /R1 of tractor trolley which is the offending vehicle in question. Despite specific suggestions to three different witnesses who are all eye witnesses being injured themselves, nothing on record could be brought to suggest that the accident was caused due to lack of caution or vigilant driving by petitioner . There are specific categorical deposition of petitioner witnesses testifying that the offending tractor had already crossed the narrow pulia/bridge and that the accident had occurred due to wobling of the tractor trolley coming from the opposite side, being driven rashly and negligently. It has also come in evidence that the road did not have any divider. There is no circumstance to suggest that the petitioner /Dinesh could have averted the accident with the offending tractor trolley by taking any obvious caution. The insurance company has failed to prove any contributory/composite negligence attributable to the petitioner.
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17. As already discussed hereinabove, the petitioner's evidence is unbreached and uncontroverted on the aspect of the occurrence of the accident and the involvement of the offending tractor which hit the victim RTV. All suggestions that the accident took place due to own negligence of the driver of RTV have been categorically denied by the petitioner and other two injured. The defence taken by respondents that the accident did not take place due to rash and negligent driving of respondent no.1/driver of the alleged offending tractor, is not established. FIR No. 246/07, PS Narela was registered in respect of the accident in question. It is not denied by respondent nos. 1 and 2 that respondent no. 1 was the driver of the offending tractor in question at the relevant time. There is nothing on record whether in evidence or otherwise to disbelieve the corroborative and uncontradictory testimonies of petitioner/injured. As here inabove discussed, the respondents have failed to lead any defence evidence to attribute any negligence or contributory negligence of the driver of the RTV in which the injured were travelling. The careful appreciation of entire material on record duly establishes the factum and manner of accident as per the averments of the petition.
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18. As regard the medical treatment record for the injuries suffered by the petitioner, the entire medical record has been placed which has been carefully appreciated. The medical record is not disputed. The MLC of the injured bearing no. 1225/07 dated 10/05/07 which is the date of accident, issued by Satyawadi Raja Harish Chander Hospital forms part of the record. Thereafter, the petitioner also remained admitted in the Guru Nanak Eye Centre where he was operated upon by the doctors for the eye injuries. During the proceedings, the disability certificate has been issued in favour of the petitioner which has been duly proved on record vide Ex.PW3/A with the medical board opinion that the petitioner was having 30% permanent disability of right eye. PW1 has been reexamined whereby he has placed his subsequent treatment record as Ex. PW1/2.It is evidently established on record that the accident in question was caused by the offending tractor bearing no. HR10J5802 which was being driven by respondent no. 1 in a rash and negligent manner thereby causing Case No. 95/09 Dinesh Vs. Rajuddin 19 injuries upon the petitioner of the grievous nature which have led to permanent disability up to 30% in relation to right eye of the petitioner.
19. ISSUE NO.2:
Whether the offending vehicle was being used in contravention to conditions of the policy? OPR3 The onus to prove this issue is upon the insurance company. The Insurance Company has claimed exemption from its liability to pay compensation against the victims of the road accident in question on the ground that the terms and conditions of the insurance policy covering the alleged offending vehicle have been violated. In this regard, there is an objection pertaining to the category of the driving licence of the offending vehicle. R3W1 is the witness of the insurance company who has duly proved the issuance of notice U/o 12 Rule 8 CPC upon the other respondents. Respondent nos. 1 and 2 did not produce any valid driving licence in pursuance to the said notice and the driving licence seized by the police as relied upon is proved as Ex.R3W1/6.
Ex. R3W1/6 is the copy of seized driving licence of respondent no.1/driver of the offending tractor in question. The same is applicable and issued for the categories of Case No. 95/09 Dinesh Vs. Rajuddin 20 motor cycle i.e LMV (NT) meaning thereby that the same was not applicable for driving goodscarrier vehicles. It is not the case of either respondent no. 1 or respondent no. 2 that there was any subsequent endorsement pertaining to the appropriate category upon the driving licence of respondent no.1, relevant on the date of accident.
Ld. Counsel for insurance company has relied upon the law laid down in National Insurance Company Vs. Sushila & Ors., 2010 ACJ 2671 wherein the Hon'ble High Court of Bombay has clearly reasserted the well settled law in cases where the offending driver was driving the offending tractor trolley. It has been laid down that the tractor trolley is the goods vehicle being used for carriage of goods and transportation and that the driver was having licence to drive the LMV was not holding appropriate driving licence for driving the trolley.
The court has duly appreciated the citation relied upon by the Insurance Company and appreciated the law applicable to the facts of the present case.
The liability to pay the compensation to the accident victim, lies upon which of the respondents. It is now to be examined as to which of the respondents shall be liable to pay the compensation to the victim/petitioner. It is, well Case No. 95/09 Dinesh Vs. Rajuddin 21 settled binding principle of law laid down in National Insurance Company Limited Vs. Swarn Singh & Ors., AIR 2004 SC 1531 (1) that "it is beyond any doubt or dispute that under Section 149(2) of Motor Vehicle Act, any insurer can defend the action on any of the ground mentioned therein".
20. It has been further held that the liability of the insurer is a statutory one. The liability of the insurer to satisfy the decree in favour of a third party is also statutory. It has been further held that the insurance companies are, with a view to avoid their liability must not only establish the available defences in terms of Section 149(2)(a)(ii) of Motor Vehicle Act but must also establish breach, on the part of the owner of the vehicle and the burden to proof of the same is upon the insurer.
21. This binding law of the land has been repeatedly examined in each type of peculiar facts of the cases dealt by various superior courts. The Hon'ble High Court of Delhi has been pleased to analysize the law with regard to the liability of the Insurer visavis the insured and third parties. The Hon'ble High Court of Delhi in New India Assurance Co. Ltd.v. Sanjay Case No. 95/09 Dinesh Vs. Rajuddin 22 Kumar & Ors. ILR 2007 (II) Delhi 733, referred to National Insurance Company Limited Vs. Swaran Singh v. Lehru & Ors., (2003) 3 SCC 338; New India Assurance Co..Shimla v. Kamla and Ors. (2001) 4 SCC 342; Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21; and Skandia Insurance Company Limited v. Kokilaben Chandravadan, (1987) 2 SCC 654 and analysized the law with regard to the liability of the Insurer visavis the Insured and third parties and summarized the legal position as under:
"(a) where the offending vehicle is admittedly an insured vehicle, limited to the terms of the policy of insurance, the insurance company is obliged to take over the liability of the assured and pay the sum awarded by the Tribunal to the claimant.
(b) Where the insurance company alleges breach of the terms and conditions of the policy of the insurance and Section 149 (2) (a) of the M.V. Act, 1988 is attracted, on proof of violation of a breach of a specified condition of a policy, the insurance company would still be liable to pay the sum awarded to the claimants but Case No. 95/09 Dinesh Vs. Rajuddin 23 would be entitled to recovery rights against the assured, meaning thereby, on proof of having satisfied the award in favour of the claimant would be entitled to recover the said amount from the assured.
(c) Where the policy is avoided on proof of facts which attracts Section 149 (2) (b) of the M.V. Act, 1988, the liability of the insurance stands avoided visavis even the third parties, meaning thereby the Tribunal would have no power to direct recovery against the insurance company.
(d) Mere breach of the conditions of the policy would not entitle the insurance company to either avoid liability to pay or have recovery rights against the assured unless the insurance company additionally proves that the assured, knowingly and consciously breached the terms of the policy or by proving facts evidencing conduct of acting so recklessly as to denote that the assured did not care what the consequences of his act might be."
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22. In view of the above well settled preposition of law, the facts of the present case are examined. The driver/respondent no. 1 of the offending tractor was holding a driving licence for driving the vehicle of the category of LMVs for nontransport purposes. Despite opportunity and notice, respondent nos. 1 and 2 have not produced or proved that they were holding valid driving licence, as on the date of accident . It has been brought on record that the trolley attached with offending tractor was loaded with goods/sand at the time of accident. It has also been testified vide duly corroborated testimonies of the three injured in the accident that the accident occurred due to negligence of the offending tractor which had gathered speed and had started wobling after crossing a small pulia. Hence, it is duly proved that the offending tractor trolley being driven by respondent no. 1 which was being used as a Goods Carrier & therefore, required the driving licence of the driver of the offending vehicle for HMV category. It is also duly considered that insurance policy of the respondent no. 3 is admitted for the relevant period.
There is no evidence tendered on behalf of driver/owner to establish that they were not guilty of breach of terms and policy. Accordingly, the insurance company has been able Case No. 95/09 Dinesh Vs. Rajuddin 25 to prove that the offending vehicle was being used in contravention of conditions of the insurance policy. Therefore, the insurance company shall be entitled to recover the compensation paid to the third party in discharge to its statutory liability. Hence, the insurance issue is decided in favour of insurance company and against respondent nos. 1 and 2.
24. ISSUE NO.3:
Whether petitioner is entitled to compensation if so, to what extent and from which of the respondents? OPP The court is now to decide on quantum of compensation i.e. payable to the petitioner and is to ascertain and decide such compensation i.e. just and reasonable in the facts and circumstances of the case.
The guiding principles for assessment of "just and reasonable compensation" in injury cases has been laid down by Hon'ble Delhi High Court, in III (2007), ACC 676 titled as Oriental Insurance Co,. Ltd., Vs. Vijay Kumar Mittal & Ors that: " The possession of one's own body is the first and most valuable all human rights and while awarding compensation for bodily injuries this primary element is to be kept in mind. Bodily injury is to be treated and varies on account of gravity of Case No. 95/09 Dinesh Vs. Rajuddin 26 bodily injury. Though it is impossible to equate money with human suffering, agony and personal deprivation, the Court and Tribunal should make an honest and serious attempt to award damages so far as money can compensate the loss.
Regard must be given to the gravity and degree of deprivation as well as the degree of awareness of the deprivation. Damages awarded in personal injury cases must be substantial and not token damages".
It has been further held by the Hon'ble High Court that:
"the general principle which should govern the assessment of damages in persons injury cases is that the Court should award to injured persons such a sum as will put him in the same position as he would have been in the same position as he would have been in if he had not sustained injuries".
25. In the road accident in question in the facts of the case, the petitioner has suffered disability in respect of vision of his eye and he has to suffer for the rest of his life. The medical Board assessment of permanent physical disability of the petitioner is 30% in respect of right eye and the medical witness / Doctor from Guru Nank Eye Hosptial has been examined before the court who has deposed that there are no chances of improvement in the Case No. 95/09 Dinesh Vs. Rajuddin 27 vision of right eye of the petitioner. The medical export also testified that the petitioner had lost complete vision of his right eye. Now, this Court is to decide and ascertain the effect of permanent disability on the actual earning capacity of the petitioner.
26. Admittedly, the medical opinion in respect of medical disability of the petitioner does not refer to " whole body disablement" and also does not take into account loss of earning capacity of an individual. The Hon'ble Apex Court in Raj Kumar Vs.Ajay Kumar & Anr. 2011, ACJ, 1 SC and has laid down binding guidelines for ascertainment of the effect of the permanent disability on the actual earning capacity of an individual. The court has taken into account the guidelines applicable in the facts of the present case. The petitioner was a RTV driver and the said fact has been duly proved by the testimony of PW3 i.e petitioner himself. PW1 has duly proved his commercial licence as Ex.PW1/23. The engagement of the petitioner in driving commercial vehicle for earning livelihood was indisputably dependent upon the correct vision of both eyes. Ld. Counsel for insurance company has denied the claim of the petitioner that he was rendered unfit for driving due to disability of the right eye and it has been Case No. 95/09 Dinesh Vs. Rajuddin 28 contended that the petitioner was duly competent to continue driving normally despite disability. It is to be examined whether the petitioner could carry on some or other or lesser scale of activities and function so that he can continue to earn his livelihood. In order to ascertain and assess "just compensation" regard has to be given to the entirety of the aforesaid facts and circumstances. The petitioner was working as a driver of commercial vehicle and after his permanent disability, driving capability must have been compromised. The petitioner has reasonably suffered loss of earning capacity due to disability. The permanent disablement of the petitioner has been assessed medically at 15% owing to loss of vision of right eye. Therefore, court deems it appropriate to assess that the petitioner has suffered loss of future earning capacity of 30%. "Loss of future earning capacity" is accordingly, assessed at 15%.
27. It is the case of the petitioner that he was earning Rs. 10,000/ per month from the job of driver. The petitioner was a young and active man with good future prospects and considering that even if the petitioner is self employed and was driving his own RTV at the time of accident, he would have the opportunity to take any other Case No. 95/09 Dinesh Vs. Rajuddin 29 gainful employment for himself in future. It has already been discussed that the petitioner has failed to prove the regular income of Rs. 10,000/ per month while working as driver as claimed. In the peculiar facts of the present case, petitioner was driving his own RTV and was , therefore, not earning as the driver. Nevertheless, it is to be considered that he would have required to engage some other commercial vehicle/driver for his RTV during the period of treatment and recovery. Also his capability to continuously drive for longer duration has been definitely compromised which would render him entitled for compensation for loss of earning capacity.
28. It is claimed in the petition that the petitioner was 26 years of age at the time of accident. However, as per driving licence Ex. PW1/23 duly proved, the petitioner was almost 30 years of age. It shall be appropriate to quantify the income/earning of the petitioner in regard to skilled worker. Since the petitioner was driving and therefore his income as per minimum wages scheduled at the relevant time are assessed @ Rs. 3,894/ per month. In the facts and circumstances, the income of the petitioner is assessed @ Rs. 3,894/.
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29. The Hon'ble High Court of Delhi has duly considered and appreciated the various relevant decisions of the Hon'ble Supreme Court of India and discussed the applicable aspects of law pertaining to "additions" in the minimum wages on account of inflation for computation of compensation in its detailed orders dt. 19.03.2012, passed in considerable number of cases involving similar question of law alongwith MAC APP. No. 997/2011 in case titled Smt. Dhaneshwari & Anr. Vs. Tejeshwar Singh & Ors. It has been held that there shall be no addition in the minimum wages on account of inflation for computation of compensation.
30. It is further relevant to take into consideration the law laid down by Hon'ble Supreme Court in case titled Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., SLP (C) No. 8648 of 2007, wherein it has been held that the claimants shall be entitled to addition on account of future prospects depending upon the facts of each case. Uniform guidelines have been laid down for computation of addition on account of future prospects depending upon the age of the deceased/disabled and nature of employment of the victim. The law has been further developed in by Hon'ble Supreme Court in its Case No. 95/09 Dinesh Vs. Rajuddin 31 latest judgment in Santosh Devi Vs. National Insurance company Ltd. and ors. in Civil Appeal NO.,. 3723 of 2012 arising out of SLP (C) No. 24489 of 2010. The Hon'ble Bench of Supreme Court has observed that aspect of future prospects shall be a relevant consideration in computation of just and proper compensation even in cases where the deceased was self employed or on a fixed salary without provisions for annual increments etc. The Hon'ble Supreme Court in Santosh Devi's case (Supra) allowed the addition of 30 % on account of future prospects in such cases. In the present case, as afore discussed, the monthly income of the petitioner has been assessed at Rs. 3,894/ per month. The petitioner was a young active person of 30 years of age at the time of the accident, hence, the addition on account of future prospects shall be 30% of the income of the petitioner as the petitioner was not having any fixed income or employment. Accordingly, the monthly income of the petitioner comes out to Rs. 5,062/ per month (Rs.3,894/ + 30 % of Rs. 3,894/) .
31. In the present case there shall be no deductions on account of personal expenses since it is the case of personal injury/disability.
32. The permanent disability is treated at par with the Case No. 95/09 Dinesh Vs. Rajuddin 32 death in order to calculate the amount of compensation in accordance with the extent of disability qua the whole body. It is duly considered that the petitioner was almost 30 years of age at the time of accident. Hence, in view of the decision of Hon'ble Supreme Court given in Sarla Verma vs. DTC 2009 ACJ 1298, multiplier of 17 has to be applied to compute his loss of earning capacity. His loss of future earning capacity has been assessed at 15%. Hence, the total loss of future income or earning capacity comes to Rs. 1,54,897/ as per the formula(Rs.5,062x 12 x 17 x 15%). Accordingly petitioner is granted loss of earning capacity at Rs. 1,54,897/ which is rounded off to Rs. 1,55,000/.
33. The treatment of petitioner has mainly been done at Guru Nanak Eye Centre. The petitioner has stated in the petition that he incurred medical expenditure of Rs. 25,000/ on his medical treatment. At the stage of evidence, petitioner has deposed that he was firstly removed to Raja Harish Chander Hospital from where he was discharged on the next day. His treatment record is duly proved on record as Ex.PW1/1 to Ex.PW1/12. It is averred by the petitioner that due to loss of his right eye vision, he had also taken treatment from Guru Nanak Eye Hospital.
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However, medical bills of only about Rs. 1,000/ have
been tendered or relied upon. It is duly considered that the petitioner has lost vision of his right eye and suffered permanent disability of 30% in respect of vision. Though, as such no considerable evidence in this case to prove the claimed medical expenses has been led and it has also been claimed that the petitioner underwent treatment from government hospitals and therefore could tender bills of about Rs. 1,000/. However, the court has duly considered that the reasonable expenditure that would have been incurred during the medical treatment of the petitioner who has proved treatment for about three and a half months from the date of admission and thereafter the rehospitalisation due to operation of the eye for about two months. The petitioner is, therefore, entitled to a composite sum of Rs. 20,000/ towards medical expenses.
34. The petitioner has further claimed that he had spent Rs.10,000/ on special diet and Rs.20,000/ upon conveyance. There has been no documentary or otherwise evidence to show the actual expenses against these heads as claimed by the petitioner. As it has already been established that the petitioner underwent detailed Case No. 95/09 Dinesh Vs. Rajuddin 34 treatment for the period of 56 months and that he underwent operation of his eye about 1.5 year from the accident, a composite sum of Rs. 20,000/ is granted towards special diet and conveyance.
35. The petitioner has stated in his evidence of affidavit that at the time of accident, the petitioner was working as a tempo driver at the time of accident and was earning Rs. 10,000/ per month. However, due to the said accident, he has claimed that he could not resume his work for one and a half year. As discussed, income of petitioner at relevant time is considered @ Rs. 3,894/ per month. In absence of reliable material, period of loss of income for six months is allowed as reasonable. The loss of income of the petitioner is calculated as Rs.25,000/ ( 3,894/ X 6 = Rs. 23, 364/ which is rounded off to Rs. 25,000/)
36. In addition to the above assessment against various entitled heads of pecuniary damages, the petitioner is also entitled to nonpecuniary damages. After taking into account of the relevant facts, the Hon'ble Supreme Court of India has held in case Raj Kumar Vs.Ajay Kumar & Anr. 2011, ACJ, 1 SC, that "when compensation is awarded by treating the loss of future earning capacity as 100 % Case No. 95/09 Dinesh Vs. Rajuddin 35 ( or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be award under the head of loss of amenities or loss of expectation of life , as otherwise there may be a duplication in the award of compensation."
37. In view of the binding latest authority of the Apex court which lays down the law of the land, the petitioner will still be entitled to nonpecuniary damages under the head of compensation of pain and suffering. Though, nonpecuniary loss can not be assessed in terms of money, the petitioner is granted an amount of Rs. 1 lac towards pain and suffering, inconvenience, mental shock and trauma as a consequences of injuries. It has been duly considered that the petitioner should also be compensated for loss of amenities and enjoyment of life that he would continue to suffer for the rest of his life due to disability caused by the accident in question. Keeping in view the extent and nature of disability, it shall be appropriate to grant a sum of Rs. 50,000/ towards damages owing to disability and loss of amenities.
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38. Thus, the total compensation payable to petitioner is detailed as below:
A. Pecuniary Head:
1. Loss of earning capacity. Rs. 1, 55,000/
2. Loss of Income Rs. 25,000/
3. Medical expenses. Rs. 20,000/
4. Special diet & Conveyance Rs. 20,000/ charges Rs. 2,20,000/ NonPecuniary Head:
5. Pain and sufferings Rs. 1,00,000/
6. Loss of damages owing to Rs. 50,000/ disability & loss of amenities of life Total compensation Rs. 1,50,000/ Total: 2,20,000/ + Rs. 1,50,000/= Rs.3,70,000/
39. As it has already been discussed in Issue No. 2 that the driver/respondent no. 1 of the offending tractor was holding a driving licence of driving the LMVs for Non Transport Category and that the insurance company has been able to prove that the offending vehicle was being used in contravention to terms and conditions of the insurance policy . The insurer/respondent no. 3 is, therefore, entitled to recover the compensation payable by it to the 'third party' in discharge of its statutory liability. However, at the first instance, the compensation shall be payable to the petitioner by respondent no. 3/insurer.
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Hence, in view of the discussion hereinabove, Recovery Rights are granted in favour of insurance company/ respondent no.3 against respondents no. 1 & 2, jointly and severally.
RELIEF:
40. In view of the aforesaid discussions, I hereby hold that petitioners are entitled to a sum of Rs. 3,70,000/ along with interest @ 7.5% per annum from the date of filing of present petition till its realization. Respondent no. 3/insurance company shall be liable to pay compensation, to the petitioners in terms as given herein under. However, insurance company is granted Recovery Rights against the respondent no.1/driver and respondent no. 2/ owner.
41. Out of the award amount, 50% of the compensation alongwith proportionate interest shall be held in two fixed deposits for a period of two years and five years respectively in equal proportions. Rest 50% alongwith proportionate interest be released to the petitioner.
42. The FDR's shall have no facility of loan advance or premature withdrawal, without leave of the court. However, petitioner shall have the facility to withdraw the interest monthly/quarterly thereupon.
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43. In view of the aforesaid findings and in terms of the award /order of this court, the petition is disposed off in aforesaid terms. Respondent no. 3 is directed to deposit the cheques in the names of the claimants within 30 days before this Tribunal. Respondent No.3 is also directed to furnish certificate of TDS if applicable. File be consigned to Record Room.
ANNOUNCED IN THE (PREETI AGRAWAL GUPTA)
OPEN COURT JUDGE MACT: ROHINI (NORTH)
ON:31.08.2013 DELHI
Case No. 95/09 Dinesh Vs. Rajuddin
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Suit No. 94/09
31.08.2013
Present: None.
Vide separate detailed award, dictated and announced in the court today, an award in sum of Rs. 3,70,000/ alongwith interest payable from the date of petition is hereby passed in favour of the petitioners and against respondent no. 3/ insurance company. However, insurance company shall have recovery rights against the respondent nos. 1 and 2/ driver and owner respectively. Respondent No.3 is directed to deposit the cheque in terms of the award within 30 days before this Tribunal. Petition is disposed of in aforesaid terms. File be consigned to Record Room.
(PREETI AGRAWAL GUPTA)
JUDGE MACT: ROHINI(NORTH)
DELHI
Case No. 95/09 Dinesh Vs. Rajuddin