Delhi District Court
Sh.Jaspal Singh Chhabra vs Sh. Subhash on 25 August, 2011
IN THE COURT OF MS. VINEETA GOYAL: POMACT (SOUTH01)
SAKET COURTS, NEW DELHI
INJURY CASE
Suit no. : 865/08
Unique Case ID no. : 02403C0692062005
IN THE MATTER OF :
1. Sh.Jaspal Singh Chhabra,
S/o Sh.Gur Bachan Singh
R/o WZ283/24A, Vishnu Garden
Tilak Nagar, New Delhi
Petitioner
Versus
1. Sh. Subhash
S/o Sh. Gulab Singh
R/o. V. & P.O. Dhatir
P.S. Sadar Palwal
Haryana Driver
2. M/s. Haryana Roadways Faridabad
Depot Manager,
Faridabad, Owner
3. National Insurance Company Ltd.
th
DO XXII, 4 Floor
Pal Mohan House
5/67, Padam Singh Road
Karol Bagh
New Delhi110005 Insurer
Respondents
Date of institution : 22.05.2005
Date of institution
in the present court : 28.11.2008
Date of arguments : 20.08.2011
Date of order : 25.08.2011
Suit no.865/08 Page no. 1/12
Appearance : Sh. Lalit, counsel for petitioner
Sh. Yogesh Kaushik, counsel for respondent No.1
Sh. V. K. Sharma, counsel for respondent No.2
Sh. Kundram, counsel for respondent no.3
JUDGMENT/AWARD
1. This claim petition u/s 166 & 140 of Motor Vehicle Act, 1988 (herein called the Act) was filed by petitioner for grant of compensation of Rs.10,00,000/ for injuries sustained in the road vehicular accident.
2. Sh. Jaspal Singh, aged 29 years, on 06.05.2005 at about 3.30 pm was going on his scooter along with his friend and when he reached opposite Safdarjung Hospital, all of sudden a Haryana Roadways Bus bearing No.HR38G4331 being driven by respondent no.1 was going ahead and from ahead of said bus a WagonR car bearing no.DL9CD5031 was going on. The said bus which was driven by R1 in rash and resilient manner hit WagonR car and due to sudden apply of brake scooter of injured struck Haryana Roadways Bus as a result of which he received grievous injuries. He was removed to Safdarjung Hospital and later on shifted to Khetarpal Nursing home. Thereafter an FIR bearing No.224/05 dated 06.05.2005 u/s. 279/338 IPC was registered at PS Sarojini Nagar.
3. In response to notice of petition, respondents appeared and filed their separte written statement. In its separate written statement driver and owner denied their liability. Driver pleaded that no accident took place from the offending vehicle. He was falsely implicated in fact accident took place due to rash and negligent driving of WagonR car. In its written statement, respondent no.3 admitted the validity of the insurance policy for the offending vehicle in the name of R2. Separate replication to the written statement was filed by petitioner.
4. From the pleadings on record the following issues were framed on 03.08.2007: Suit no.865/08 Page no. 2/12 Issues:
1. Whether injured Jaspal Singh had received injuries in motor vehicle accident due to rash and negligent driving of vehicle No. HR38G4331 by R1 owned by R2 and insured with R3 on 04.05.2000 OPP
2. If issue No.1 is proved in affirmative whether petitioner are entitle for any compensation if yes from whom and to what amount?
3. Relief.
5. In order to prove his case, petitioner himself stepped into witness box as PW1 and tendered his evidence by way of affidavits as Ex.PW1/A and supported the averments made in the petition. He also proved relevant document furnished with the claim petition and also filed medical documents along with bills.
6. In defence respondent no.1 himself stepped into witness box as R1W1 and thereafter closed the evidence. Insurance company got examined Sh. Nand Lal Clerk from RTA, Faridabad office who proved that as per their record the driving licence of driver namely Sh. Subhash was valid form 09.02.2002 to 08.04.2005 and it was renewed from 13.05.2005 till 12.05.2008. At the time of accident i.e. 06.05.2005 the driver was not having valid and effective driving licence. R3W2 SH. Harjinder Singh, Assistant Manager proved attested copy of policy and terms and conditions. No evidence in defence was led by respondent no.2.
7. I have heard the arguments advanced by the counsel for parties and gone through the case file and my findings on the issues are as under: Issue Nos. 1
8. It is trite and settled law that proof of negligence of offending vehicle is sine qua by R non for claiming compensation under Section 166 of the Motor Vehicles Act and owned by R the claimant would succeed for compensation only after leading appropriate evidence to establish negligence. The requirement of proof of negligence is dispensed if the claim petition has been filed on principle of "no fault" basis for consideration under Section 163A or Section 140 of the Motor Vehicles ct. Another Suit no.865/08 Page no. 3/12 exception of the said rule is principle of resipsaloquitor i.e 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 petitioner to prove the accident and nothing more. In summation, when burden of proof of negligence is upon the petitioner, by merely placing on record the documents of the criminal case, the petitioner cannot claim to have discharged this burden without adducing any reliable and cogent evidence which can possibly be lead to prove negligence on the part of the driver of the offending vehicle.
9. The counsel for petitioner argued that after the amendment of Motor Vehicles Act, 1939 by the 1988 Amending Act procedure for claiming compensation in the road accidents has undergone a substantial change and under the amended provisions, it is mandatory for the Claims Tribunal to treat report of accident forwarded to it under Section 158 as an application for compensation. A copy such report is mandatorily sent to the concerned insurer and if copy of report is made available to the owner, he shall also forward the same to the claim tribunal and the insurer. In view of the changed procedure above, when the report containing complete facts of the accident are sent to owner and driver of the offending vehicle, such records of criminal proceedings assume greater significance for proving accident and involvement of offending vehicle and driver. Repealing these arguments counsel for respondents argued that if documents of criminal proceedings attributing negligence to the driver of the offending vehicle remain unrebutted and unchallenged, these can be admitted as sufficient proof of negligence under Motor Vehicle Act. It is in this background that the courts have been holding that where an FIR has been registered against the driver of the offending vehicle, it is sufficient evidence for the purpose of MV Act for attributing negligence to the driver. But this presumption is rebuttable because driver of the offending vehicle is not precluded from leading evidence so as to demonstrate Suit no.865/08 Page no. 4/12 that there was no negligence on his part.
10. After taking a note of the preposition above, it transpires that the claimant/ petitioner cannot merely assume that by merely placing on record an FIR and site plan, his onus of proving negligence of the driver is discharged. It is expected of him that while stepping into witness box he should place on record more cogent facts related to accident which can be best known to him.
11. In the instant case, it is admitted position that the offending vehicle, a bus belonging to Haryana Roadways, hit a wagnor car from behind which resulted in sudden stoppage of the bus. The petitioner/ claimant had hit the bus from behind which indicates that he could not control his scooter and banged the bus from behind. The driver of the offending bus pleaded that while he was on road suddenly negotiated by a Wagnor car which could not be avoided but collided and thus no fault should be attributed to him. In these circumstances before attributing negligence to any of the participants of the accident, it is imperative to find out what was respective 'duty to care' which each one breached. The driver of bus was expected to drive such a large vehicle at a speed which in the event of sudden appearance of vehicles could be controlled precisely. However it appears that due to high speed of the bus when it was confronted with a Wagnor car, he applied sudden breaks to stop the vehicle. On the other hand, it was duty of the petitioner/ claimant who was following a bus in high a speed to keep a safe distance and run at a moderate speed so as to anticipate a situation which may need application of sudden breaks. The petitioner was not driving cautiously and apparently followed the aforesaid bus in a close & unsafe distance in high speed himself. Consequently the petitioner also contributed to occurance of the accident by not taking care and his contribution to the said accident is held to be 20% while 80% is attributed to the driver of Bus who was driving bigger vehicle in city and was expected to be more careful. Hence, issue no.1 is partly decided in favour of the Suit no.865/08 Page no. 5/12 petitioner.
Issue no. 2:
12. Since issue no.1 is partly decided in favour of petitioner and against the respondent so he is entitled for compensation in following manner: Medical Expenses:
13. It is seen from record that immediately after accident petitioner was removed to Safdarjung Hospital whereas MLC was prepared and thereafter he was shifted to Khetarpal Naursing Hospital for the treatment. The petitioner has placed on record discharge summary which shows that he remained admitted as indoor patient in hospital till 17.05.2009. It was diagnosis as "RTA with # femur". He was operated upon and interlocking and nailing was done of both fracture under spinal anesthesia. The peititioner was again got admitted in same hospital on 14.09.2005 till 15.09.2005. During his admission in hospital "removal of proximal locking screws was done under S.A." Further OPD slips of Khetarpal Nursing Home reveals that treatment continued upto 11.10.2005. The petitioner has placed on record medical bills including cash memos of approximately Rs.1,18,000/, out of which a sum of Rs.45000/ has been reimbursed under TPA scheme. Hence petitioner is entitled for Rs.73,000/ only on that count.
Loss of future income:
14. Jaspal Singh in his claim petition averred that his age at the time of accident was 29 years and he was engaged in profession of transport business. He placed on record just one Income Tax Return for the assessment year of 200506 showing annual income of Rs. 1,23,354/. He did not produce any tax record for any other year. The petitioner claimed that he suffered loss of income on account of injuries sustained in an accident and disability suffered. He could not carry on his vocation/profession as effectively and diligently as he was carrying out prior to the accident. The Motor Suit no.865/08 Page no. 6/12 Accident Claim Tribunal can make assessment of any future loss based on impact of permanent disability on the income earning capacity of injured.
15. The law for awarding compensation in the case of permanent disability suffered during motor accident has been settled by Hon'ble Supreme Court in a catena of judgments i.e Arvind Kumar Mishra v. New India Assurance Co. Ltd. [2010 (10) SCC 254] , Yadava Kumar v. National Insurance Co. Ltd. [2010 (10) SCC 341], Raj Kumar v. Ajay Kumar & Anr. [(2011) 1 SCC 343] and Sri Nagarajappa Vs. The Oriental Insurance Co. Ltd. Civil Appeal No. 3203 OF 2011 (SLP(C) No.6128/2010) decided on 11.04.2011. It has been laid down by the Hon'ble Court that while deciding Claim petition of the claimant who have suffered permanent disability in motor accidents, the Tribunal should not get persuaded mechanically by the figures of percentage of disability as recorded in disability certificate and adopt the same percentage using multiplier method. But the tribunal should ascertain impact of such permanent disability on the earning capacity of the injured on percentage basis.
16. It was also held that on facts of each case, the tribunal will take note of the activities which claimant cannot perform after accident and also the activities which he can perform despite of the permanent disability. Thereafter in light of the vocation, profession and nature of work being done by the injured before the accident and keeping in mind his age, the tribunal will ascertain whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. In consideration of the facts above, the tribunal will determine the effect of permanent disability on percentage loss of Income which shall be guiding Suit no.865/08 Page no. 7/12 factor to determine the compensation.
17. The claimant, in the present case, after the accident as a result of injury has been rendered 24% disabled in respect of his lower right limb as is certified by the medical board in Disability Certificate issued by Guru Govind Singh hospital. The disability of 24% has been expressed in the terms of limb and not vis a vis whole body and petitioner did not take any steps to adduce any evidence regarding loss of his business due to his disability. He was under obligations to demonstrate nature of his business and cause of loss directly attributed to his disability. It is also not evident from income tax return that he was carrying business of transport as alleged because petitioner has filed a single page photocopy without supporting documents. In the absence of any positive evidence lead by petitioner, it is not possible to ascertain the effect of disability on nature of business and except to make estimate /guess work. The disability of 24 % alleged would imposed definitely some restriction in movement of petitioner. It will be sufficient if the effect of such disability on earning is restricted to 12% on the basis of whole body. The petitioner as per ITR was earning Rs.1,23,354/ (rounded off to Rs.1,24,000/) and thus annual income loss would be 1,24,000/. The annual loss of earning is thus worked out as 12% of (1,24,000/) which comes to Rs. 14,880/. The date of birth of petitioner as per ITR is 21.01.1976 thus, at the time of accident in 06.05.2005 age would be about 29 years. The applicable multiplier in this case would be 17 and thus loss of future earning on account of disability is calculated as 14880 X 17= Rs.2,52,960/.
Loss of income:
18. On account of grievous injuries suffered, petitioner is also awarded Rs.40,000 towards loss of income as the petitioner must have been incapacitated for carrying out his occupation during the period of treatment .
Travelling Expenses and Special Diet: Suit no.865/08 Page no. 8/12
19. The petitioner was treated as indoor patient in various Hospitals and must have been forced to travel for his treatment. The petitioner has suffered injury and considering the fact that such patient require to remain on special diet rich in proteins, therefore, a sum of Rs.10,000/ are awarded towards special diet. Another sum of Rs. 10,000/ are awarded for travel expense which the petitioner might have incurred for facilitating his movement for medical treatment.
20. The petitioner claimant is thus entitled to following compensation:
Medical expenses : Rs. 73,000.00
Loss of future income : Rs. 2,52,960.00
Loss of income : Rs. 40,000.00
Travelling expenses : Rs. 10,000.00
Special Diet : Rs. 10,000.00
Total : Rs 3,85,960.00
Relief
21. Petitioner is awarded to Rs.3,85,960/(inclusive of interim award) however, as held above, there was a contributory negligence towards accident and 20% to the petitioner while 80% is attributed to the driver of Bus who was driving bigger vehicle in city and was expected to be more careful thus the petitioner is entitled to sum of Rs. 3,08,768/(inclusive of interim award) with interest @ 7.5% per annum from the date of filing of petition i.e.07.12.2005 till its realisation.
LIABILITY:
22. In this case as per certificate issued by licensing authority that driving licence of driver had expired on 08.04.2005. It was renewed with effect from 13.05.2005. It is specific case of insurance company that driving licence of driver was renewed only w.e.f. 13.05.2005. As per provision of Section 15 of M. V. Act (herein after called the Act) , it is clear that if an application for renewal licence is made within 30 days of date of its expiry, the licence continued to be effective and valid without a break as the Suit no.865/08 Page no. 9/12 renewal dates back to the date of its expiry. Whereas, when an application for renewal filed after more than 30 days after date of its expiry, proviso to sub Section (1) of section 15 of the Act gets attracted and the licence is renewed only with effect from date of its renewal. It is amply clear that it means that between the date of expiry of licence and the date of its renewal there is no effective licence in existence. Here in the instant case admittedly the driver applied for renewal of licence on 13.05.2005 and hence failed to apply for renewal of licence within 30 days from the date of its expiry in terms of section 15 of the Act. The licence could not be renewed w.e.f. the date of its expiry and therefore between the period from 08.04.2005 to 13.05.2004 the driver was not having valid and effective driving licence as contemplated u/s 3 of the Act.
23. In view of the settled law that insurance company is liable qua third party, it shall however, right to recover from insured after depositing the compensation to third party. As discussed above, since the driver of offending vehicle was not having a valid licence, so insurance company has right to recover the same from respondent no.2. Accordingly, insurance company shall deposit the amount of compensation and then after depositing shall have right to recover from respondent no. 2 in whose name vehicle is registered.
24. Respondent no.3/insurance company is directed to directly deposit the cheques with SBI Bank, Saket Courts complex branch within 30 days from today and in case of default, penal interest @ 12 % per annum shall be given from the date of filing of delay till deposit of the awarded amount on the account of petitioner in following manners:
25. On deposit of award amount, 40 % of award in respect of petitioner shall be credited in his saving bank account and rest of the amount shall be invested as under
in the Fixed Deposit Account: Fixed Deposit in respect of 10 % amount be deposited for petitioner for one year, Fixed Deposit in respect of 10 % amount be deposited for petitioner for two years, Suit no.865/08 Page no. 10/12 Fixed Deposit in respect of 10 % amount be deposited for petitioner for three years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for four years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for five years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for six years,
26. Interest on all the aforesaid fixed deposits be credited automatically monthly in the saving bank account of the respective petitioner.
27. Withdrawal from the aforesaid saving bank account shall be permitted to claimants after due verification and the Bank shall issue photo identity card to claimant to facilitate identity.
28. No cheque book be issued to claimants without the permission of this court.
29. The original fixed deposit account book shall be retained by the Bank in the safe custody. However, the original pass book shall be given to claimants along with the photocopy of the FD account book/receipt.
30. On maturity, the FDR amount shall be directly credited in the saving bank account of the petitioner. No loan, advance or withdrawal shall be allowed on the said fixed deposit account without the permission of this court. Half yearly statement of account be filed by the Bank in this court.
31. On the request of claimant the Bank shall transfer the Saving Account to any other branch of SBI, Saket Court according to her convenience.
32. Claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account in bank.
33. Let for the identification of the petitioner, the first copy of the petition wherein photograph of the petitioner is affixed, be annexed with the award.
34. Award is passed accordingly. File be consigned to record room only after compliance by insurance company by depositing the award in the manner as stated above. Be awaited for compliance for 15.10.2011.
Suit no.865/08 Page no. 11/12 Pronounced in the open court on 25.08.2011 VINEETA GOYAL PO : MACT (SOUTH01) 25.08.2011 Suit no.865/08 Page no. 12/12