Delhi District Court
Smt. Gayatri Devi W/O Sh. S. B. Singh vs Sh. Amarjeet Pandey S/O Sh. Ram Chander ... on 22 January, 2013
1
IN THE COURT OF MS. PREETI AGRAWAL GUPTA:
JUDGE: MACT(OUTER): ROHINI: DELHI
Case No. 326/09
Smt. Gayatri Devi w/o Sh. S. B. Singh
R/o E2/3/3, Sector15, Rohini, Delhi.
....Petitioner
Versus
1. Sh. Amarjeet Pandey s/o Sh. Ram Chander Pandey
r/o E/12, Rana Bagh, Siraspur, Delhi.
2. Mrs.Mukta Aggarwal w/o Sh. Rajiv Aggarwal
r/o AD 106, Shalimar Bagh, Delhi.
3. The National Insurance Co. Ltd.
Jeevan Bharti Building,
Connaught Place, New Delhi. ....Respondents
DATE OF INSTITUTION : 02.02.2009
JUDGMENT RESERVED ON : 17.01.2013
DATE OF JUDGMENT : 22.01.2013
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 the accidental injuries sustained by the petitioner. It is the case of the petitioner that on 26.08.08 at about 8:30 a.m she was travelling as a pillion rider on two wheeler scooter no. DL4SJ1910 and was proceeding towards Saroj Hospital from her Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey 2 house. When the petitioner reached at near T point, Sachdeva Junior Public School, Delhi then a car bearing no. DL8CK995, being driven by its driver a a very high speed came and hit the two wheeler scooter where upon the petitioner was travelling. As a result of forceful impact, the petitioner fell down on the road and sustained grievous injuries on her body. The petitioner was removed to Saroj Hospital from the place of accident and got admitted there. It is further averred that the petitioner was still undergoing treatment since the date of accident till date. The FIR No. 610/08 under Section 279/337 IPC at PS Prashant Vihar was registered against the driver/respondent No.1. The petitioner was 58 years old at the time of accident and was looking after the complete household. It is claimed that she had to engage a maid to look after her household work for four months on a monthly salary of Rs. 3,000/ per month, besides clothing, food etc. It is averred that the petitioner is entitled to get amount of compensation as due to the injuries, the health and life span of the petitioner has been seriously affected due to the accident in question. The petitioner has claimed compensation of Rs. 5,00,000/.
2. The respondent No.1 is the driver and the respondent No.2 is the owner of the offending vehicle, who have filed their respective written statements. In the written statement of respondent no.1, the averments of the entire petition are denied and it is also denied that respondent no. 1 was driving the alleged offending vehicle at the time of accident. On the other hand, respondent no. 2/owner , in its WS has Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey 3 admitted the occurrence of the accident in question with the alleged offending vehicle and has also admitted that the offending vehicle car bearing no. DL8CK995 was being driven by respondent no. 1 at the time of accident. It is, however, the case put forth that the offending car was parked at the side of the road which was hit by the two wheeler scooter being driven by the husband of the petitioner, while driving the scooter rashly and negligently. It is, therefore, 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/National Insurance Co. Ltd. for the relevant period of the accident.
3. The respondent No.3/Insurance Company filed written statement taking various technical preliminary objections U/s 149(2) of the Motor Vehicle Act, 1988 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 or in case of any other breach. The alleged facts of accident are denied for want of knowledge and as such claim petition is denied, has been highly excessive, vague and illusory. It is, however, not denied that the offending vehicle was duly insured as on the date of accident.
4. From the pleadings of the parties, following issues were framed : a. Whether the petitioner received injuries in the accident occurred on 26.08.08 at about 8:30 a.m near T point of Sachdeva Junior Public School, Rohini, Delhi due to rash and negligent driving of R1 of vehicle no. DL8CK995? Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey 4 b. Whether the petitioner is entitled to compensation, if so, to what extent and from which of the respondents?OPP c. Relief.
5. PW1, Mr. Anil Sharma, Record Incharge from Saroj Hospital has proved the complete treatment and admission record of petitioner Ms. Gayatri vide Ex. PW1/1 running into 34 pages and filed the same in original. Despite opportunity, the witness was not cross examined and was accordingly, discharged.
6. The petitioner has, herself, appeared in the witness box as PW2 and has deposed in her chief examination duly corroborating the averments in the petition as regards the facts of the alleged road accident in question. She has tendered in evidence her discharge summary as Ex. PW 2/1, photocopies of investigation report collectively as mark A, treatment record and prescriptions from Saroj Hospital and medical bills as Ex. PW 2/2 and Ex. PW 2/3. She has tendered her identity by way election I card as Ex. PW 2/4. Despite opportunity, the petitioner was not cross examined and hence, opportunity was closed and her testimony remains unchallanged and unbreached. No further PE has been recorded.
7. After recording the petitioner evidence, respondent no. 2/registered owner of the alleged offending vehicle filed his evidence by way of affidavit. Repeated opportunities were granted to the respondents which were not availed. No evidence was tendered on behalf of respondents. Hence, the affidavit of respondent no. 2 was never tendered in RE and RE has been closed without recording any RE. Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey 5
8. The court has duly heard the Ld. Counsel for the petitioner and the insurance company and has also duly appreciated the pleadings and material on record along with the evidence tendered before the court. My findings on the above mentioned issues are as follows:
9. ISSUE NO 1: Whether the petitioner received injuries in the accident occurred on 26.08.08 at about 8:30 a.m near T point of Sachdeva Junior Public School, Rohini, Delhi due to rash and negligent driving of R1 of vehicle no. DL8CK995? It is the case of the petitioner that on 26.08.08 at about 8:30 a.m, she was travelling as a pillion rider on two wheeler scooter no. DL4SJ1910, being driven by her husband and was proceeding towards Saroj Hospital from her house. When they reached at near T point, Sachdeva Junior Public School, Delhi then suddenly the offending vehicle/car bearing no. DL8CK0995 came at a very high speed in a rash and negligent manner and thereby hit the petitioner. As a result of forceful impact, the petitioner fell down on the road and sustained serious/grievous injuries on her body. The petitioner was taken to Saroj hospital. FIR no. 610/08 U/s 279/337 IPC PS Prashant Vihar was registered on the same day of accident against the driver of the offending car in question after recording the statement of the petitioner. During investigation, the offending vehicle was seized and the driver/respondent no. 1 was arrested as accused after he was produced by the owner of the Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey 6 offending vehicle on notice U/s 133 M. V. Act. The respondent no. 1 was thereafter arrested and chargesheet has been filed against him.
10. The petitioner has tendered her affidavit as Ex. PW2/A and her testimony is consistent and supporting the averments in the claim petition. Her testimony is unbreached and unchallenged . As such, the respondent no. 1/driver has denied that he was the driver of the offending car at the time of accident but no evidence has been tendered by him to support his defence. It is not denied that he was produced by the owner of the offending car/R2 on notice U/s 133 M. V. Act by the IO during investigation and it is also admitted that a chargesheet has been filed against respondent no. 1 in respect of the accident in question. Registered owner/respondent no. 2 of the offending vehicle has not denied the involvement of the alleged car in the accident in question and has only put forth a defence about absence of any rash and negligent aspect attributable to respondent no. 1 in causing the accident in question. Respondent no. 2 also, has not tendered any evidence to support his claim that the accident was caused due to rash and negligent driving of the scooter in question by husband of the petitioner. The claim of respondent no. 2 is unsupported by any material or evidence.
11. 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 Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey 7 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
Loquitor 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 accident raises the presumption of negligence unless rebutted by the wrongdoer." ...
It has been further observed that"in some cases considerable hardship is caused to the plaintiff as the ture cause of the accident is not known to him, but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident, but can not prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of resipsaloquitor is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more." ...
It has been further appreciated that"the effect of Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey 8 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."
12. It is, evident from the facts and circumstances of the case and from the evidence on record that the accident in question was caused by respondent No.1 as he was driving the vehicle in a rash and negligent manner. FIR No. 610/08 under Section 279/337 IPC, PS Bawana, in this regard has been placed on record. The involvement of offending vehicle/car in question is even otherwise not denied by respondent no. 2 who has also not denied that respondent no. 1 was the driver thereof. It is evident from record that respondent no.1 has been arrested during investigation and has been chargesheeted for the road accident in question. As already discussed, hereinabove, neither respondent no. 1 nor respondent no. 2 have discharged their onus to justify or prove their allegations of rash and negligent driving towards the husband of the petitioner who was driving the scooter on which the petitioner was Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey 9 travelling as a pillion rider. On the contrary, the petitioner has proved her case and allegations by virtue to the claim petition and duly supported evidence. The doctrine of resipsaloquitor is wholly applicable in proving that the petitioner sustained injuries from the road accident caused by the offending car in question, which was being driven rashly and negligently by the respondent No.1. It is further evident from the medical record Ex.PW1/1, Ex. PW2/1 to Ex.PW2/3 that grievous injuries had resulted to the petitioner. Therefore, issue no. 1 is disposed of in favour of the petitioner and against the respondents.
13. ISSUE NO 2: Whether petitioner is entitled to compensation as prayed for, if so from which of the respondent? OPP The petitioner has suffered multiple injuries including grievous injuries in the accident. FIR No. 610/08 under Section 279/337 IPC at PS Prashant Vihar has been registered against the respondent No.1 and chargesheet has been subsequently filed before the Ld. MM. Careful appreciation of medical record Ex. PW2/1 to Ex. PW 2/3 reveals a case of detailed OPD investigation of the injured whereby she had sustained fracture in waist with abrasions and blunt injuries all over her body. It is adequately proved on record that the injured/petitioner had suffered grievous injuries due to accident . It is also evidently clear that the injured was hospitalised with effect from 26.08.08 to 29.08.08 at Saroj Hospital and thereafter underwent treatment up to end of year 2009. Accordingly, the petitioner is entitled to just and reasonable compensation for the injuries suffered by her. The petitioner has claimed that Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey 10 the medical bills of Rs. 62,070/ has been placed on record. The entire medical record Ex.PW1/5 which has been produced from the hospital itself as well as medical bills Ex. PW2/3 has been carefully appreciated and has been tallied from the medical prescriptions. The entire claimed expenses are not duly supported by corresponding medical advice. Nevertheless, the final bill of hospitalisation of the petitioner for a sum of Rs. 20,000/ (approx.) and medical expenses on medicines totalling to Rs. 10,000/ are justified and reasonable from record. Also, the petitioner underwent diagnostic procedure for which claim up to Rs. 10,000/ is justified. Accordingly, the claim of medical expenditure is allowed for an amount of Rs. 40,000/.
There is no evidence put forth by the petitioner to show the requirement or quantum of conveyance, special diet etc. However, keeping into consideration the nature of injuries and period of treatment, the petitioner is granted a composite sum of Rs. 15,000/ towards special diet, conveyance etc. The petitioner has also claimed attendant charges @ Rs. 3000/ per month for the four months besides bedding, clothing etc. but the same does not stand supported by any evidence. As such, it is the case of the petitioner that she was the housewife and therefore, required help for household work due to her medical condition owing to the injuries in the road accident in question. It is to be duly considered that the petitioner has suffered due to grievous injuries sustained in the road accident in question and has suffered from waist fracture which would have definitely rendered her unable to attend to her daily routine of home care. She is entitled to be compensated for expenditure and damages, I shall follow the minimum wages schedule for skilled worker for grant of compensation for four months @ Rs. 4107/ per Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey 11 month. Accordingly, the petitioner is granted compensation of Rs. 16,428/ on account of attendant charges/loss of contribution towards household which is rounded off to Rs. 16,500/ per month.
14. The petitioner has underwent pain and agony during the period of treatment and recovery, therefore, a sum of Rs. 25,000/ is granted to the petitioner towards pain and sufferings.
15. Thus, the total compensation payable to petitioner is detailed as below:
1. Medical expenses Rs. 40,000/
2. Special diet/conveyance Rs. 15,000/
3. Attendant charges/loss of Rs. 16,500/ contribution towards household
4.Pain & sufferings Rs. 25,000/ _____________ Total compensation Rs. 96,500/ ______________
16. So far as the liability to pay compensation is concerned, there is no defence of the insurance company to show any violation of terms and conditions of the insurance policy. In these circumstances, respondent no.1 being the driver is primarily liable to pay the compensation. Respondent no. 2 and 3 being owner and insurer are vicariously liable to pay the compensation. Compensation is payable by respondent no. 3 being insurer, as vehicle was duly insured as on the date of accident. The issue is disposed of accordingly.
17. RELIEF:
18. In view of the afore given reasons and findings, the petitioner is entitled to compensation in the sum of Rs. 96,500/ along with interest @ 9% per annum from the date of institution of present petition till its realization. Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey 12 Respondent No.3/Insurance Co. is directed to deposit the cheque of compensation in the name of petitioner within 30 days before this Tribunal. Petition is disposed off in aforesaid terms. File be consigned to Record Room.
ANNOUNCED IN THE (PREETI AGRAWAL GUPTA)
ON 22.01.2013 JUDGE, MACT (OUTER1)
ROHINI : DELHI
Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey
13
Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey
14
Case No. 326/09 Smt. Gyatri Devi Vs. Amarjeet Pandey