Delhi District Court
Shiv Kumar vs Reliance General Insurance Co. Ltd. ... on 8 May, 2012
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL
II, DWARKA COURTS, NEW DELHI
MACT NO. 110/12/08
IN THE MATTER OF :
Shiv Kumar
S/o Sh. Videshi Mahto
R/o 115B, Ambedkar Colony
Bijwasan, New Delhi. ......Petitioner
Versus
1. Reliance General Insurance Co. Ltd. (Insurer)
K24 & 25, Mezzanine Floor
Pearl Road, Sector18, Noida
2. Sh. Rinku Sharma (Owner)
S/o Sh. S.L. Sharma
R/o Village Nithari
Sector31, Noida, U.P.
3. Narayan Gautam (Driver)
S/o Sh. Babu Ram Gautam
R/o 1/25, Janakpuri, Ram Ghat Road
Aligarh, U.P.
At present: C/o Dhanpal's House
Vill.Gijod, Sector53, Noida, U.P.
.........Respondents
Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 1 of 17
MACT NO. 109/12/08 IN THE MATTER OF :
Mohd. Safiullah Mistri S/o Sh. Ayyub Mistri R/o 78C, Ambedkar Colony Bijwasan, New Delhi.
Also at: Plot No. 41920, Udhyog ViharIII Gurgaon, Haryana.
......Petitioner Versus
1. Reliance General Insurance Co. Ltd. (Insurer) K24 & 25, Mezzanine Floor Pearl Road, Sector18, Noida
2. Sh. Rinku Sharma (Owner) S/o Sh. S.L. Sharma R/o Village Nithari Sector31, Noida, U.P.
3. Narayan Gautam (Driver) S/o Sh. Babu Ram Gautam R/o 1/25, Janakpuri, Ram Ghat Road Aligarh, U.P. At present: C/o Dhanpal's House Vill.Gijod, Sector53, Noida, U.P. .........Respondents Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 2 of 17 FILED ON : 19.12.2008 RESERVED ON : 08.05.2012 DECIDED ON : 08.05.2012 : J U D G M E N T :
1. These are two claim petitions filed under Section 166 and 140 of the Motor Vehicles Act, 1988.
2. Claim petition of Sh. Shiv Kumar was treated as leading case as both the claim petitions had arisen out of same accident.
3. Respondent No. 1 is the insurance company, Respondent No. 2 is the owner and Respondent No. 3 is the driver of offending vehicle.
4. Facts of claim petition filed by Shiv Kumar are that on 28.02.08 he was going with his friend Mohd. Shafeequllah from Kapashera to Bijwasan on a scooter no. HR260695.
5. It is stated that at about 9.00 p.m petitioner and his friend reached near Pushpanjali Farm on Kapashera Bijwasan road and in the meantime a Maruti Esteem Car bearing no. UP93F4100 came at a fast speed being driven by its driver in a rash and negligent manner and took sharp right turn and came in the lane in which petitioner was going without caring for the safety of the petitioner and his friend.
6. It is stated that the offending vehicle came in front of the Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 3 of 17 scooter and petitioner's friend did not get any time to apply breaks and crashed with the car.
7. It is stated that petitioner and scooter driver fell down on the road and got injured.
8. It is stated that both the injured were taken to Deepan Hospital, Kapashera where MLC No. 46/08 was prepared. Injuries suffered by petitioner were grievous and it is stated that he is still getting treatment from ESI Hospital.
9. Petitioner has stated that at the time of accident he was 35 years of age and was working with Brayer Asia Limited, Plot No. 419, PhaseIII, Udhyog Vihar, Gurgaon, Haryana and was earning a sum of Rs. 4000/ per month. It is also stated that FIR No. 37/08 is registered against respondent no. 3 under Section 279 and 338 of IPC in P.S. Kapashera.
10. In these circumstances, petitioner has claimed a compensation of Rs. 5,00,000/ with interest @ 12% p.a. from the date of filing of petition till its realization.
11. Written statement was filed only by respondent no. 1, Insurance Company who stated that the petitioner in this case has impleaded the insurance company on the basis of cover note no.
200703109659 in respect of vehicle no. UP93F4100 for the period 28.08.07 to 27.08.08.
Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 4 of 17
12. It is stated that insurance company has not received any premium and has not issued any insurance policy covering the risk of the offending vehicle for the period from 28.08.07 to 27.08.08.
13. Insurance company has taken an objection that the driver and owner of scooter and their insurance company are liable to pay for the compensation to the petitioner and answering respondent has no responsibility.
14. It is also stated that in case driver of offending vehicle is found not to have a valid and effective driving license in that event insurance company will have no liability to pay for the compensation.
15. Further it is stated that petitioner has sustained injuries because of sole negligence on the part of driver of the scooter and not because of the negligence of the driver of offending vehicle.
16. It is also stated that in case it is found that the insured has violated any terms and conditions of policy in that event insured will have no liability to pay the compensation.
17. Rest of the averments made in the claim petition by the petitioner were also denied.
18. Facts in the claim petition of Mohd. Safiullah Mistri are that the petitioner was 50 years of age at the time of accident and was doing private job drawing a salary of Rs. 10,000/ per month. The employer of petitioner was Bry Air (Asia) Pvt. Ltd. Plot No. 419, Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 5 of 17 PhaseIII, Udhyog Vihar, Gurgaon, Haryana.
19. Narration of incident of accident is same as in the case of Shiv Kumar. The only variation in the facts of the two cases is that the petitioner himself was driving the scooter no. HR260695 where another petitioner Sh. Shiv Kumar was the pillion rider. This petitioner was also treated at Deepan Hospital and has suffered grievous injuries. He has also claimed a compensation of Rs. 5 lacs with interest @ 12% p.a. from the date of filing of the petition till its realization.
20. In view of order of consolidation passed, following consolidated issues were framed:
1) Whether, petitioners Shiv Kumar and Mohd.
Safiullah Mistri sustained injuries on their persons in an accident which took place on 29.02.08 due to negligent driving of car bearing registration no. UP93F4100 being driven in negligent manner by R3, owned by R3 and insured with R1? OPP
2) If issue no. 1 is proved in affirmative whether petitioners are entitled for any compensation, if yes, from whom and to what amount?
3) Relief.
21. Sh. Shiv Kumar entered in the witness box as PW1 and stated similar facts in his evidence by way of affidavit as were stated by him in the claim petition.
22. During his statement FIR was exhibited as Ex. PW1/1, Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 6 of 17 statement of petitioner recorded by the police was exhibited as Ex. PW1/2, Site plan was exhibited as Ex. PW1/3, driving license of driver of offending vehicle was exhibited as Ex. PW1/4, superdginama given by respondent no. 2 was exhibited as Ex. PW1/5, insurance cover was exhibited as Ex. PW1/6, driving license of driver of offending vehicle was exhibited as Ex. PW1/7, arrest memo of respondent no. 3 was exhibited as Ex. PW1/8, medico legal report dated 28.02.08 of Sh. Shiv Kumar was exhibited as Ex. PW1/9, OPD tickets of ESI Hospital were exhibited as Ex. PW1/10 to 21, OPD ticket of Lok Nayak Hospital were exhibited as Ex. PW1/22 to 23, discharge slip of ESI Hospital where Sh. Shiv Kumar had remained admitted from 20.05.09 to 31.05.09 was exhibited as Ex. PW1/24, discharge slip of ESI Hospital where Sh. Shiv Kumar had remained admitted from 01.03.08 to 24.03.08 was exhibited as Ex. PW1/25, discharge slip of ESI Hospital where Sh. Shiv Kumar had remained admitted from 29.07.08 to 09.09.08 was exhibited as Ex. PW1/26, discharge slip of ESI Hospital where Sh. Shiv Kumar had remained admitted from 24.09.08 to 11.10.08 was exhibited as Ex. PW1/27, Nuclear medicine test to rule out AVN head of left femur was exhibited as Ex. PW1/28, receipt of Rs. 400/ given to Star Imaging & Path Lab was exhibited as Ex. PW1/29, PAN Card of the petitioner was exhibited as Ex. PW1/30, Ration Card was exhibited as Ex. Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 7 of 17 PW1/31, High School Pass Certificate was exhibited as Ex. PW1/32, disability certificate was exhibited as Ex. PW1/33.
23. It is to be noted that in the disability certificate it is stated that it is a case of Post Femur Fracture (Operated) and petitioner is physically disabled and has more than 40% physical impairment in relation to his left lower limbs. It is stated that the condition is progressive and is likely to improve that is why reassessment was recommended after a period of two years. The word permanent physical impairment is specifically deleted therefore as per Ex. PW1/33 the disability was not permanent.
24. In cross examination, PW1 Sh. Shiv Kumar stated that he is not having any documentary evidence with regard to his income and he is not given any salary slip.
25. So far as the second petitioner Mohd. Safiquallah Mistri is concerned, he entered in the witness box as PW2 and stated similar facts in his evidence by way of affidavit as were already stated in the claim petition. The driving license in the name of PW2 was proved as Ex. PW2/1 and registration certificate was proved as Ex. PW2/2. Additionally he proved his annual increment 200809 as per which his monthly income was Rs. 20,050/ per month as Ex. PW2/3 and annual increment 200910 as per which his monthly income was Rs. 24,295/ per month.
Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 8 of 17
26. In cross examination, he stated that he has not filed any documentary evidence for expenses incurred on special diet and conveyance. He admitted that he has not filed documentary evidence with respect to his employment and salary with Air Asia Pvt. Ltd. However, when at a later stage he proved his salary certificate a suggestion was given to him in cross examination that the certificates are forged and fabricated.
27. Arguments were addressed by Sh. S.K. Verma, learned Counsel for petitioners and Sh. Onkar Singh, learned Counsel for insurance company.
28. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1
29. Both the petitioners have stated in their claim petitions that on 28.02.08 at about 9.00 p.m., they were coming from Kapashera to Bijwasan on scooter bearing no. HR260695. They have stated that near Pushpanjali Farm, Kapashera Bijwasan Road, offending vehicle no. UP93F4100 came at a high speed and was being driven by respondent no. 3 rashly and negligently. They have stated that the offending vehicle had taken a turn in such a manner that it came in front of scooter driven by Mohd. Shafiullah as a result of which they fell down on the road and received grievous Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 9 of 17 injuries.
30. Respondent no. 3 has not filed any written statement. Therefore pleadings of petitioners that the offending vehicle was being driven rashly and negligently have remained unchallenged.
31. Same is the evidence of both the petitioners. The testimonies of petitioners have also remained unchallenged.
32. Respondent no. 1 did not enter in the witness box to prove his innocence or to show that the accident was caused due to negligence of Mohd. Shafiullah.
33. Perusal of site plan also shows that the offending vehicle had taken a turn and had come in front of scooter being driven by Mohd. Shafiullah in such a manner that the driver of scooter had no time to apply breaks and the scooter therefore had hit the vehicle.
34. It is settled law that test of negligence for deciding a claim petition under provisions of Motor Vehicles Act is of preponderance of probabilities and not beyond all reasonable doubts.
35. Ld. Counsel for petitioner has stated at Bar during arguments that Police has filed chargesheet after completion of investigation which is prima facie evidence of involvement of the vehicle of respondent no. 2 in accident and negligence of respondent no. 3 in driving the offending vehicle.
36. Respondent No.3 has not complained to senior police Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 10 of 17 officials against the Investigating Officer for falsely implicating him in the accident.
37. Therefore, this issue is decided against the respondents and in favour of petitioners.
ISSUE NO. 2:
38. The compensation payable to the claimant who is a victim of road accident should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equatable manner.
39. Compensation payable in injury cases is payable under two heads. They are pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii)
(a) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future medical expenses. Nonpecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities (and /or loss Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 11 of 17 of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).
40. In routine personal injury cases compensation is awarded only under heads (i), (ii), (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation is granted under any of the heads (ii) (b), (iii) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.
41. As per Medico Legal Report of Sh. Shiv Kumar prepared in Deepan Hospital the injuries suffered by the petitioner were grievous. Petitioner was admitted in ESI Hospital New Delhi on 01.03.08 and had remained admitted there till 24.03.08. The diagnosis noted by the Hospital in discharge slip Ex. PW1/25 is Communited Fracture Shaft Femur Left.
42. Again petitioner was admitted in ESI Hospital on 29.07.08 till 09.09.08 with the diagnosis of FUC of fracture shaft femur left with fracture NOF (left) fracture shaft femur operated with knee ROM060 degree flexion with EHC (left) with HTM.
43. Petitioner was again admitted in the Hospital on 24.09.08 till 11.10.08 and diagnosis noted is NU fracture shaft of left Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 12 of 17 femur with K nail in situ with fracture neck of left femur.
44. Petitioner was again admitted in ESI Hospital on 20.05.09 and was discharged on 21.05.09 with the diagnosis of FUC fracture NOF (left) with fracture SOF (left).
45. As per Ex. PW1/33 petitioner has also suffered temporary disability of more than 40% in relation to left lower limbs.
46. Since compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim of a motor accident. Nature of injury, the parts of body where the injuries were sustained, surgeries if any underwent by the victim, confinement in the Hospital and the duration of the treatment are normally considered by the Claims Tribunal for this purpose. (Oriental Insurance Company Ltd. v. A. Mohan & Ors. MAC APP. No. 602/11 dated 14.03.12).
47. Considering the fact that petitioner Sh. Shiv Kumar had to be admitted in Hospital four times for the treatment of injuries suffered by him in the accident and considering that the injuries were grievous which resulted in temporary disability as well he is entitled for a compensation of Rs. 50,000/ for Pain and Suffering.
48. Petitioner Sh. Shiv Kumar has not claimed any compensation for cost of medicines or fee given to the doctors except Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 13 of 17 Ex. PW1/29 which is payment made to Star Imaging & Path Lab for a sum of Rs. 400/. Petitioner is entitled to receive a sum of Rs. 400/ for expenses incurred on the test in the said Lab.
49. The date of accident is 28.02.08. As is evident from four discharge slips of ESI Hospital and a large number of OPD tickets, it is apparent that at least till 31.05.09 petitioner was still undergoing treatment because his date of discharge from ESI Hospital as per Ex. PW1/24 is 31.05.09. Even after discharge from the hospital it can be safely presumed that at least for a period of two months petitioner may not have been able to join his duties. Perusal of Ex. PW1/18 shows that petitioner was declared fit to join duties from 18.02.10. It shows that petitioner would have remained on leave because of this accident for a period of two years.
50. Since petitioner has taken treatment from ESI Hospital it is apparent that he must have been an employee in a concern covered under ESI Act. However, petitioner has not summoned any witness from his employer to show that he had remained on leave for a period of two years.
51. Therefore, instead of allowing compensation for a period of two years petitioner is given compensation of loss of wages till 31.07.09 i.e. two month after his discharge form the Hospital as per Ex. PW1/24.
Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 14 of 17
52. Minimum wages payable at the time of accident were Rs. 4081/ per month for a matriculate. However, petitioner himself has stated that his income was Rs. 4000/ per month. Therefore, Loss of Wages for a period of 17 months would be Rs. 4000/ x 17 = Rs. 68,000/. Petitioner is entitled to this compensation for loss of wages.
53. Lastly, taking into view the long treatment undertaken by the petitioner, for Special Diet and Conveyance petitioner is given a compensation of Rs. 10,000/, on each head i.e. Rs. 20,000/.
54. As per Ex. PW1/33, the disability of the petitioner was progressive and reassessment was required after a period of two years. The word "Permanent" is specifically deleted from the disability certificate. Therefore, no compensation can be given to the petitioner for loss of wages in future on the basis of this disability certificate.
55. Resultantly, petitioner Sh. Shiv Kumar is granted a total compensation of Rs. 1,38,000/ with interest @ 9% p.a. From the date of filing of this claim petition which is 19.12.08 till its deposit in the court.
56. From this compensation, interim compensation of Rs. 25,000/ shall be deleted.
57. Next is the question of compensation payable to Sh. Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 15 of 17
Mohd. Shafiullah.
58. As per Medico Legal Report of Deepan Hospital this petitioner has also suffered grievous injuries. He was admitted in the hospital on 28.02.08 and discharged on 01.03.08. There is no other medical record of his treatment for injuries suffered in the accident.
59. Resultantly, this petitioner is given a compensation of Rs. 20,000/ for Pain and Suffering.
60. For Special Diet and Conveyance, he is given a compensation of Rs. 5000/ on both heads i.e. Rs. 10,000/.
61. Though this petitioner has proved his salary certificate as Ex. PW2/3 and 4 but there is no evidence of leave availed by this petitioner also. As per discharge slip of Deepan Hospital injuries suffered by him are fracture scapula.
62. Applying some guess work this petitioner is given compensation of Rs. 15,000/ for Loss of Wages on lump sump basis.
63. Resultantly, total compensation payable to this petitioner would be Rs. 45,000/ which shall be payable @ 9% p.a. from the date of filing of this claim petition till its deposit in the court.
64. In a written statement insurance company has denied that it has insured the offending vehicle on the date of accident. However, petitioners have proved insurance cover as Ex. PW1/6 Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 16 of 17 which was valid from 28.08.07 to 27.08.08 for vehicle no. UP93 F4100. There is no suggestion given to the petitioners in their cross examinations that the offending vehicle was not insured on the date of accident. Therefore, the defence of insurance company that it is not liable to pay the compensation is rejected.
65. Insurance company has not proved any of its defence. Therefore, the compensation would be payable by the insurance company.
66. The insurance company is directed to deposit this compensation within 30 days under intimation to the petitioner by registered post.
67. Copy of order be given dasti to all the parties.
68. File be consigned to record room.
Announced in the Open Court.
On the 08th day of May, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII, DWARKA COURTS, NEW DELHI.
Shiv Kumar v. Reliance General Ins. Co. & Ors. Page 17 of 17