Delhi District Court
The vs . on 10 July, 2014
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IN THE COURT OF MS. PREETI AGRAWAL GUPTA:
ADJ cum JUDGE: MACT(NORTH): ROHINI: DELHI
Case No.1298/08
Vijay Pal
s/o Sh. Jai Singh
r/o House no. 219,Village Behra Bakipur
PS Kundli, District Sonepat, Haryana
Vs.
1. Mohd. Zasim s/o Mohd. Usman
r/o House no. 90, T Huts Nala, Gulabi Bagh
Delhi .
2. Shiv Ram s/o Bhaiya Ram
s/o Jhuggi no. 52/68, Ganda Nala
Gulabi Bagh, Delhi110 007.
3. IFFCO Tokio General Insurance Co. Ltd.
10, Shaheed Jeet Singh Marg
New Delhi - 67.
....Respondents
DATE OF INSTITUTION : 02.06.2008 JUDGMENT RESERVED ON : 08.07.2014 DATE OF JUDGMENT : 10.07.2014 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 grievous accidental injuries sustained by the petitioner in the road accident in question. It is the case of the petitioner that on 24.12.07 at about 4:30 p.m while the petitioner was driving motorcycle bearing no. HR10K5078 along with his brother Satpal as pillion rider, when on reaching Palla Road, in front of Royal properties office suddenly the offending vehicle/ D Van/Vikram tempo bearing no. DL1LF3515 came at a very high speed, in a rash and negligent manner and hit the motor cycle of the petitioner from left side. As a result of forceful impact, the Case No. 1298/08 Vijay Pal V. Mohd. Zasim : 2 : petitioner as well as his brother Satpal fell down on the road and petitioner sustained grievous injuries all over the body.
2. The petitioner was taken to Parnami Ortho & Spine Hospital from the spot . It is claimed that the petitioner has incurred huge medical expenditure on his treatment. FIR No. 423/2007 under Section 279/338 IPC at PS Alipur, Delhi was registered against respondent no. 1/driver cum owner, in respect of road accident in question.
3. The petitioner has averred that at the time of accident , he was 30 years and was selfemployed and earning Rs.20,000/ per month as supplier of raw materials. It is averred that the petitioner has suffered mentally, physically as well as financially due to the accident and has claimed for compensation for the pain and agony, expenses of conveyance & special diet and also claimed damages for loss of income, etc., claiming to the tune of Rs. 15,00,000/ .
4. The respondent No.1 is the owner of the offending vehicle. Respondent no. 3 is the insurer of the alleged offending vehicle. Respondent no.1/owner has filed written statement denying any cause of action on the ground that he was not driving the alleged offending vehicle and has furnished the name of some other person stating as driver of the offending vehicle on the day of accident and has claimed nonmaintainability of the petition on account of nonjoinder of necessary party. It is further the case of respondent no.1 that the accident did not occur due to rash and negligent driving of the alleged offending vehicle. Respondent no.1/owner has denied his personal liability as the offending vehicle was duly insured with respondent no. 3. It is the case of respondent no. 1/owner that respondent no. 2/driver was holding a valid and effective driving licence at the relevant time.
Case No. 1298/08 Vijay Pal V. Mohd. Zasim
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It is alleged that the accident in question may have occurred due to negligence of the petitioner himself. The claim of the petitioner is denied as arbitrary and exorbitant thereby praying for dismissal of the same. During the pendency of the petition, respondent no.2/driver was impleaded. Despite opportunity, respondent no.2/driver did not file any written statement and opportunity was closed.
5. The insurance company/respondent no. 3 has filed written statement taking preliminary objections about cause of action, contravention of provisions of Section 140 of Motor Vehicle Act and breach of terms and conditions of the insurance policy. On merits, averments in the petition have been denied. It is alleged that 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 denied that the accident in question took place due to any negligence on the part of the driver of the alleged offending vehicle as alleged in the claim petition and hence, denying its liability to pay any compensation to the petitioner. It is, however, admitted that the offending vehicle was duly insured as on the date of accident.
6. From the pleadings of the parties, following issues were framed vide order dated 17.04.2009:
1. Whether the petitioner received injuries in the accident occurred on 24.12.2007 at about 4:30 p.m at Palla Road in front of Royal Properties office, due to rash and negligent driving of R1 of vehicle (Vikram Tempo) no. DL1LF3515? OPP.
2. Whether petitioner is entitled to compensation, if so to what extent and from which of the respondents? OPP
3. Relief.
7. PW1 Vijay Pal is the injured/petitioner himself who has Case No. 1298/08 Vijay Pal V. Mohd. Zasim : 4 : tendered his examination in chief by way of affidavit of evidence Ex. PW 1/A . Petitioner has deposed to support the averments in the petition regarding the occurrence of the accident in question. PW1 has deposed that on 24.12.07 at about 4:30p.m while he was driving his motorcycle bearing no. HR10K5078 with his brother Satpal as a pillion rider , on reaching at Palla Road, in front of Royal Properties office, suddenly the alleged offending vehicle which is a Delivery van/ Vikram Tempo bearing no. DL1LF3515, came at a very high speed , in a rash and negligent manner and hit the motorcycle of the petitioner from the left side . The petitioner and his brother fell down due to the forceful impact and received grievous injuries. The petitioner has tendered on record certified copies of criminal case record collectively as Ex. PW 1/1, medical treatment record comprising of discharge summary and Xray as Ex.PW1/2, medical bills as Ex.PW1/3 and photocopy of his voter card as Ex.PW1/4. The petitioner has further tendered his Sr. Secondary certificate as Mark A.
8. PW1 has been crossexamined, at length, by both counsels for R1/driver cum owner as well as for R2/Insurance Co. During crossexamination, PW1 has categorically denied that he fell down from his vehicle due to sudden application of brakes and has also denied the suggestion that no accident was caused by the alleged offending vehicle. On further crossexamination, PW1 deposed that the offending delivery van was being driven in the center of the road and that he was driving his motorcycle on the left side of the road at the time of accident. However, he could not tell the speed of offending delivery van. It is further deposed that the offending vehicle was going ahead of his motor cycle for the last 23 minutes. He denied that the accident Case No. 1298/08 Vijay Pal V. Mohd. Zasim : 5 : took place due to his own rash and negligent driving. The witness has further admitted that he did not lodge any police complaint regarding loss of medical bills. The witness has further testified that he did not have any documentary proof regarding his occupation and income.
9. No other witness has been examined and petitioner evidence has been closed.
10. Respondent no. 3/Insurance Company has examined Abhishek Kujur, RW1 as respondent's witness. He has tendered policy cum certificate of insurance in favour of registered owner / respondent no. 1 Mohd. Zasim as Ex. RW1/1. Copy of notice U/o 12 Rule 8 CPC sent to the driver and owner as Ex.RW1/2 and postal receipts as Ex. RW1/3 and Ex.RW1/4. RW1 has deposed that respondent no.1 and respondent no.2 did not produce any driving licence of the driver, thereby, denying the liability of the insurance company for want of driving licence of alleged offending driver. Thereafter, RE was closed.
11. The court has duly heard the Ld. Counsels for parties and has also duly appreciated the pleadings, documents, other relevant material and evidence on record.
12. The issues in the petition are being adjudicated as under: ISSUE NO 1: Whether the petitioner received injuries in the accident occurred on 24.12.2007 at about 4:30 p.m at Palla Road in front of Royal Properties office, due to rash and negligent driving of R1 of vehicle (Vikram Tempo) no. DL1LF3515? OPP.
13. According to the petitioner, the accident was caused by rash and negligent driving of respondent no. 2/driver of the offending delivery van/tempo no. HR1LF3515. The petitioner /injured has deposed as PW1 that the respondent no. 2 was driving the alleged offending vehicle bearing no. DL1LF3515 Case No. 1298/08 Vijay Pal V. Mohd. Zasim : 6 : at a high speed in a rash and negligent manner thereby hitting the motorcycle driven by petitioner from the left side. Due to the forceful impact, the petitioner and pillion rider Satpal received grievous injuries .
14. 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 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 true 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 resipsa loquitor 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." ...
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It has been further appreciated that"the effect of doctrine of 'resipsaloquitor' 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."
15. In light of the above detailed well settled law upon the doctrine of resipsaloquitor, the facts of the accident in the present case are to be examined. Whereas, petitioner as PW1 has deposed that the respondent no. 2 was driving the offending vehicle/tempo no. DL1LF3515 in a rash and negligent manner, thereby causing the accident by hitting the motorcycle of the petitioner resulting to grievous injuries upon the petitioner. The averments in the petition and the deposition of the petitioner in Ex.PW1/A is strongly challenged by respondents, mainly on the ground that the accident was caused due to negligence of the petitioner himself and not due to rash and negligent driving of offending vehicle in question. The defence taken by respondents that the accident did not take place due to rash and negligent driving of respondent no. 2 is also based on the denial by respondent no.1 that he was not driving the alleged offending vehicle at the relevant time of accident in question. The defence of respondent no.1/registered owner for dismissal of the petition on the ground of nonjoinder of necessary party does not need to be dealt with as the alleged offending driver has been impleaded Case No. 1298/08 Vijay Pal V. Mohd. Zasim : 8 : being necessary party.
16. It is pertinent to refer to the judgment/award dated 09.02.2011 passed by the court of competent jurisdiction in the case bearing Suit no. 670/10/08 titled Satpal Vs. Mohd. Zasim . The petitioner Satpal in the afore stated case was the pillion rider of the motor cycle at the time of accident in question in this petition. By way of the judgment in case of the pillion rider Satpal, his claim petition was dismissed as the petitioner failed to show that the accident took place due to rash and negligent driving of respondent no.2/alleged offending driver. Accordingly, appreciation of the judgment of the coinjured reveals that co injured Satpal as PW1 in his case failed to support the alleged fact regarding the manner in which the accident took place, as alleged by him. Coinjured Satpal has deposed in his case that the offending tempo was going ahead of motorcycle (on which he was driving) and that the offending vehicle was being driven on the left side of the road whereas the motor cycle was behind the tempo. The Ld. Presiding Officer, MACT has observed that the tempo going ahead of the motorcycle , could not hit the motorcycle behind it unless the offending tempo suddenly applied brakes and the motorcycle behind collided with it despite due caution. The Ld. Presiding Officer has also based his findings on other possibilities about occurrence of the accident and was of the considered opinion that the petitioner could not prove that the offending tempo was being driven rashly and negligently, hence, dismissing the petition.
17. As per well settled law, each case is to be examined on the facts and evidence relevant to the case in hand. The evidence led in any other legal matter cannot form the basis of any finding in the other case since each case/claim petition may be based on Case No. 1298/08 Vijay Pal V. Mohd. Zasim : 9 : unique and individual facts and circumstances. Therefore, any evidence and reasons based on appreciation of such evidence of any other claim petition cannot form the basis of the outcome of the present petition. However, the court has appreciated the facts and reasons of the claim petition of the coinjured in order to appreciate if the present claim is duly proved by petitioner despite the failed claim of his coinjured on the same vehicle in the same road accident in question. PW1 Vijay Pal, has deposed in his chief examination with the same facts as averred in the petition . It is the case of the petitioner that the offending vehicle/tempo no. DL1LF3515 was being driven at a very high speed, in a rash and negligent manner by its driver and that at the time and day of accident , the alleged offending vehicle came from behind and hit the motorcycle, being driven by the petitioner, from the left side thereby causing him to fall along with pillion rider and sustain grievous injuries. However, in the cross examination the petitioner has furnished further elaborate details of the accident and has deposed that the alleged offending vehicle was being driven in center of the road and that he was driving his motorcycle in left side of the road. PW1 has further deposed that the alleged offending tempo/delivery van was going ahead of the motorcycle of the petitioner for last 23 minutes prior to the accident. Now, if the case of the petitioner is examined, there is no plausible explanation as to how the offending tempo hit the motorcycle of the petitioner from the left side if the statement of the petitioner on the basis of which FIR has been lodged is appreciated, the motorcycle driver by the petitioner should be on the right side of the tempo. The petitioner as PW1 has categorically denied the suggestion that he fell down from his motorcycle due to sudden application of brakes colliding with Case No. 1298/08 Vijay Pal V. Mohd. Zasim : 10 : offending tempo which may have come to a sudden halt without any justification. The only possible inference that can be drawn is that the accident could occur by collision of right front side of the tempo and left side of the motorcycle, if the motorcycle was overtaking the tempo from the right side of the tempo in such a manner that it may have swayed left towards the tempo causing the accident in question. There are number of contradictory postulates that may lead to the occurrence of the accident in question. It is adequately proved that the petitioner suffered injuries due to impact of the accident as his medical record is not challenged or controverted. However, the petitioner has not been able to prove that the accident in question took place due to rash and negligent driving of the driver of the alleged offending vehicle. It is duly established that the accident in question was caused due to collision between the alleged offending tempo and the motorcycle which was being driven by the petitioner and owned by the coinjured Satpal who was the pillion rider. There are sufficient loopholes brought forth in crossexamination of the petitioner which are sufficient to grant benefit in favour of respondents to say that the respondents have been able to rebut the presumption of principle of resipsaloquitor. The petitioner has failed to prove that he suffered an accident due to rash and negligent driving of the alleged offending vehicle. The issue is accordingly decided against the petitioner and in favour of respondents.
18. ISSUE NO.2:
" Whether the petitioner received injuries in the accident occurred on 24.12.2007 at about 4:30 p.m at Palla Road in front of Royal Properties office, due to rash and negligent driving of R1 of vehicle(Vikram Tempo)no.DL1LF3515? OPP Case No. 1298/08 Vijay Pal V. Mohd. Zasim : 11 : In view of the reasons and findings of Issue no. 1, petitioner is not entitled to grant of any compensation by virtue of provisions U/s 166 of Motor Vehicle Act . Since the petitioner has failed to establish that the accident took place due to rash and negligent driving of the offending tempo , petitioner has not been able to prove his entitlement to any compensation against the respondents. This issue is accordingly stands disposed of against the petitioner and in favour of respondents.
19. RELIEF:
20. In light of above discussed facts and reasons, the present petition has been dismissed. Petitioner is not entitled to payment of any compensation against any of the respondents. File be consigned to Record Room.
ANNOUNCED IN THE (PREETI AGRAWAL GUPTA)
OPEN COURT JUDGE, MACT (NORTH)
ON 10.07.2014 ROHINI : DELHI
Case No. 1298/08 Vijay Pal V. Mohd. Zasim
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Suit no. 1298/08
08.07.2014
Present: Proxy counsel for petitioner
Proxy counsel for Insurance Company
Further arguments heard.
Put up for orders on 10.07.2014.
(PREETI AGRAWAL GUPTA)
JUDGE, MACT (NORTH)
ROHINI : DELHI
10.07.2014
Present: None
Vide separate order, present petition has been dismissed. Petitioner is not entitled to payment of any compensation against any of the respondents. File be consigned to Record Room.
(PREETI AGRAWAL GUPTA)
JUDGE, MACT (NORTH)
ROHINI : DELHI /10.07.14
Case No. 1298/08 Vijay Pal V. Mohd. Zasim