Delhi District Court
Smt. Harjeet Kaur vs Sh. Vishal Thakre on 26 February, 2011
IN THE COURT OF
RAJIV MEHRA : PRESIDING OFFICER
MOTOR ACCIDENTS CLAIMS TRIBUNAL
KARKARDOOMA COURTS : EAST DISTRICT DELHI
Date of Institution : 07.07.2006.
Date of arguments : 26.02.2011.
Date of Award : 26.02.2011.
IN MATTER OF
Suit No.1195/08
Smt. Harjeet Kaur,
Wife of Navneet Singh Sethy,
R/o 10, Vishwakarma Park,
Laxmi Nagar,
Delhi - 92 ......Petitioner
VERSUS
1. Sh. Vishal Thakre,
R/o K-49, Gali No.7,
Laxmi Nagar, Delhi
2. Shri Parag
S/o Pundlik Rao Thakre
R/o K-49, Gali No.7,
Laxmi Nagar, Delhi
3. Shri Abhishek S/o Ram Narayan
R/o B-36, New Govind Pura
Gali No.3, Parwana Road,
Preet Vihar, Delhi
4. Oriental Insurance Company Ltd
A-25/27, Asaf Ali Road, New Delhi
5. ICICI Lombard General Insurance Co. Ltd.
Birla Tower, 5th Floor,
25 Bara Khamba Road, New Delhi ......Respondents
Suit No. 1195/08 1/8
AWARD
1. This order will dispose of this claim petition filed under Section 166/140 of the
MV Act for grant of compensation by the petitioner Smt. Harjeet Kaur. Brief background of the
facts is that on 11.5.2006 at about 7.30 pm Smt. Harjeet Kaur pedestrian was going to DDA
Market, Bank Enclave to purchase milk. As per her claim just about 5 or 10 houses away from
the market she noticed that two motorcycles were racing with each other at a very high
speed. At that time the petitioner Smt. Harjeet Kaur tried to shift to the gate of one of the
house but before she could do that she was hit by the drivers of both the motorcycles who
were driving their respective motorcycles at a great speed. The driver of both the motorcycles
hit the petitioner Harjeet Kaur and caused grievous injury to her. Smt. Harjeet Kaur fell near
the gate of Kothi No. 46 and both the motorcycle drivers fell few meters away from her. With
the public help her husband was informed who came to the site of the accident within 10
minutes and removed Smt. Harjeet Kaur to Malik Radix Healthcare, C-218, Nirman Vihar,
Vikas Marg, Delhi - 110 092 where she remained admitted from 11.5.2006 to 15.5.2006.
2. The FIR of the incident was registered vide no. 383/06 under Section 279/338
IPC at P.S. Shakarpur, Delhi. Initially this FIR was registered against Abhishek R3 driver of
one of the motorcycle bearing registration no. DL-7S-AH-8281. After completing of the
investigation charge sheet was submitted against Parag Thackrey R2 driver of other
motorcycle bearing no. DL-7S-AJ-4736. This motorcycle driven by R2 was insured with
Oriental Insurance Co. whereas other motorcycle driven by R3 was insured with ICICI
Lombard General Ins. Co. which have been impleded as respondents no.4 and 5 in the claim
petition filed by Smt. Harjeet Kaur.
3. In this incident the driver of the two motorcycles involved in causing accident of
the petitioner Smt. Harjeet Kaur had also sustained injuries. They have also filed their claim
petition against each other which was registered as Suit No. 969 in case of injured Parag
Thackrey and Suit No. 970/08 in case of injured Abhishek and all three of these petitions were
clubbed and were being tried together. Parag Thackrey driving the motorcycle no. DL-7S-
Suit No. 1195/08 2/8
AJ-4736 was a minor at the time of the accident and was without driving license. The
petition no. 969/08 filed by Parag Thackrey has been withdrawn by him whereas other petition
no. 970/08 filed by Abhishek against Parag Thackrey and owner has been disposed of after
parties went into a compromise by the order of this date. The present order is only with
respect to the claim petition no. 1195/08 filed by Smt. Harjeet Kaur against Parag Thackrey
and Abhishek etc.
4. Written statement in this claim petition has been filed by Vishal Thackrey
respondent no.1 and also separately by Abhishek respondent no.3 and also by Oriental
Insurance Company respondent no.4 giving cover to the motorcycle driven by R2 and by
respondent no.5 ICICI Lombard General Ins. Co giving cover to the motorcycle driven by R3.
In the written statement filed by R1 and R3 they have laid the blame upon each other. In WS
filed by R1 it has been stated that he is not liable to pay any compensation to the petitioner as
he has not done any accident whereas the defence taken up by R3 Abhishek is that he was
holding a valid DL for driving the motorcycle and his motorcycle was validly insured with R5
and R2 was a minor and was driving his motorcycle in a rash and negligent manner without
holding a driving license.
5. R4 Oriental Insurance Co in the WS has admitted the factum of insurance but
has taken up a defence that since driver R2 of the motorcycle was a minor no liability can be
fastened upon the Insurance Company. R5 ICICI Lombard General Ins. Co. has admitted the
factum that motorcycle of R3 was insured with it at the time of the accident.
6. The following issues have been framed in the present petition vide order dated
8.11.2006.
ISSUES
1. Whether the petitioner proves that she suffered injuries in the road accident
dated 11.5.06 within the jurisdiction of PS Shakar Pur, Delhi due to the rash
and negligent driving of motorcycle bearing no. DL-7S-AJ-4736 and DL-7S-
AH-8281 driven by respondent no.2 & 3 ?
Suit No. 1195/08 3/8
2. Whether the petitioner is entitled for any compensation? If so to what
amount and from whom?
3. Relief.
7. The petitioner in this case has examined three witnesses in support. PW-1 is
Dr. Samresh Mohan. PW-1 has appeared on 15.2.2007 and has deposed that he has
operated the petitioner and has implanted a plate in her forearm and advised her check up as
the plate was required to be removed by the end of December, 2006. According to PW-1 the
removal of plate would cost petitioner about Rs. 15,000/- to 20,000/- in future.
8. PW-2 is Dr. S.K. Verma. PW-2 had treated the injured Smt. Harjeet Kaur. He
had detected fracture in both the bones of right forearm. He has proved the MLC as
Ex.PW2/A signed by him. Injuries according to PW-2 was grievous in nature.
9. The petitioner herself has appeared as PW-3. Her affidavit of her evidence is
Ex.P3. She has proved the FIR as Ex.PW3/1. She has deposed that at the time of the
accident both the driver were racing on the motorcycle and she was hit by both of them. In
cross examination she has maintained the same stand that her accident has been caused by
driver of both the motorcycles and both of them were driving the motorcycle with great speed
without wearing helmet. Respondent Vishal Thackrey has been examined as R1W1 whereas
Sh. Pundlik Thackrey father of the driver Parag Thackrey has been examined as R1W2.
Parag Thackrey has also been examined as R2W1. Abhishek R3 has filed his affidavit and
has been examined as R3W2.
10. On behalf of Oriental Insurance Company R4 in this case Sh. Ashok Khanna AO
has appeared as R4W1 and he has proved his affidavit as Ex.R4W1/1.
11. Heard the counsel for all the parties at length and perused the record.
12. Issue wise disposal of the inquiry is as under.
Suit No. 1195/08 4/8
ISSUE NO.1
13. The evidence of Smt. Harjeet Kaur is relevant for this issue. In her affidavit of
her evidence she had laid the blame of her accident upon both drivers R2 and R3. According
to her both drivers were racing on the road and both have hit her.
14. Certified copy of the criminal case has also been placed on record.
15. Counsel for R3 submits that in the present case even though the FIR has been
registered initially against Abhishek the charge sheet was filed against R2 Parag Thackrey.
According to him Parag was a minor and not competent to drive the vehicle whereas R3
Abhishek was having a valid DL and as such the entire negligence is on the part of Parag.
This arguments is only to be rejected as it does not match to the evidence of the injured on
record. Injured is the best witness. Injured has attributed the negligence to both drivers R2
and R3. According to the injured both were racing on the road and both were driving the
motorcycle at an abnormal speed and she was hit by both of them. Injured is the best person
to say what had actually happened and the manner of the same. In view of this position the
respondent Abhishek cannot be absolved from liability in the present case simply for the
reason that he was holding a valid driving license to drive a motorcycle. The deposition of
injured clearly brings out the rash and negligent driving of the motorcycle by him also. He
cannot escape his action by laying the entire liability upon R2 Parag Thackrey driver of the
other motorcycle for the reason that he was a minor and without driving license.
16. The driver of any motor vehicle on road is required to maintain road discipline
and drive the vehicle adhering to the speed limit and also keeping in view the safety and
security of the other road users. The roads are not meant for racing purpose. Both R2 and
R3 are the boys of young age and in order to show their superimacy in driving skills they
forgot to all the above said driving norms which resulted into causing the accident of the
petitioner Harjeet Kaur beside the fact that they themselves suffered injuries. The manner of
driving of motorcycle by both of them was dangerous to the public at large.
Suit No. 1195/08 5/8
17. The evidence of the injured shows that both the driver (s) have contributed
equally to her accident in the present case. The evidence of PW-3 sufficiently proves that
injuries suffered by her in the present case were due to rash and negligent driving of both the
motorcycle driven by R2 and R3. Issue is disposed of accordingly.
ISSUE NO.2
18. Petitioner Harjeet Kaur remained in hospital for five days after the accident. She
had suffered two fractures in her right forearm. She has undergone a surgery. A plate has
been inserted in his forearm. This statement of the petitioner also find supports from the
statement of PW-1 and PW-2. The petitioner has proved the medical bills and treatment
record as Ex.PW1/12 and 13 and she has proved her medical bills of the total amount of Rs.
57,445.35 paisa collectively as Ex.PW1/14. PW-1 Dr. Samresh Mohan has also deposed
that future medical estimate for removal of the place is likely to be Rs. 15,000/- to 20,000/-.
19. Considering to the overall position the petitioner is allowed the amount of Rs.
58,000/- towards medical charges and also Rs. 10,000/- towards future medical expenses.
20. The counsel for the petitioner submits that after the accident petitioner has been
forced to engage one attendant for which she was paying Rs. 3000/- p.m. However, in
absence of any proof of engaging any attendant or in absence of any detail of the person so
hired or the proof of the amount so paid, the claim of the petitioner under this head is
declined.
21. Considering to the nature of the injuries suffered by petitioner and the duration
of her treatment she is also awarded a compensation of Rs. 25,000/- under the head of pain
and sufferings.
22. The petitioner as claimed is M.A. M.Phil by qualification. According to her claim
she was giving tution to 10 students and was earning Rs. 6000/- pm from the tutions. No
income proof has been placed on record. However, considering to the educational
qualification of the petitioner she is also granted compensation under the head of loss of
Suit No. 1195/08 6/8
income for a period of four months taking into consideration the minimum wages applicable at
the relevant time for graduate which were Rs. 4031/- and amount of compensation under that
head would be Rs. 4031 X 4 = Rs. 16,124/- which is allowed to the petitioner. She is also
allowed Rs. 6000/- for conveyance and special diet.
23. Keeping in view all the relevant factors, principles of law laid down in above
mentioned case and evidence on record this Tribunal is of the view that the petitioner is
entitled for compensation as per following details.
1. Medical charges : Rs. 58,000/-
2. Future medical expenses : Rs. 10,000/-
3. Pain and sufferings : Rs. 25,000/-
4. Loss of income : Rs. 16,124/-
3. Conveyance and special diet : Rs. 6,000/-
-------------------
Total : Rs. 1,15,124/-
--------------------
LIABILITY
24. In the present case both R2 and R3 are equally responsible for causing the accident of the petitioner. The evidence of the petitioner does not say that either of the two was any less culprit than the other. On the point of the extent of responsibility of the two driver the evidence of petitioner is the only relevant piece of evidence. The responsibility of R2 cannot be put to any higher footing for the reason that he was a minor and without driving license. Even R3 who was holding a license was behaving in the similar irresponsible manner by racing the motorcycle. Both share the equal responsibility to compensate the petitioner Harjeet Kaur. Their contribution to their negligence in the present case is of 50% each.
25. An award of the amount of Rs. 1,15,124/- is passed in favour of the petitioner and against the respondents alongwith interest @ 7.5% per annum from the date of filing of Suit No. 1195/08 7/8 the petition till realization of the amount minus the amount of interim compensation, if any, and interest excepted if any with contributory negligence of both R2 and R3 to equal extent of 50% each. Since R2 was a minor the responsibility of payment in the case of R2 would be of R1 as the owner of the motorcycle driven by him. Even though the motorcycle driven by R2 was insured with R4 Oriental Insurance Company but Company would not be held responsible for the reason of breach of conditions of insurance policy by R1 by giving motorcycle to R2 who was not competent to drive the motorcycle because of his age deficiency.
26. In the case of responsibility of R3 his motorcycle was insured with R5. He was having a valid license and responsibility of his part of payment to the petitioner would lie with ICICI Lombard General Ins. Co giving insurance cover to the motorcycle driven by R3 on the fateful day of accident.
27. Both R1 and R5 would deposit the cheque of their respective amount of their share of responsibility on or before the next date i.e. 1.4.2011. The present petition stands disposed of accordingly.
Dictated and announced in the open Court on 25.2.2011.
( RAJIV MEHRA ) PRESIDING OFFICER MOTOR ACCIDENT CLAIMS TRIBUNAL EAST DISTRICT KKD COURTS: DELHI Suit No. 1195/08 8/8 Suit No. 1195/08 9/8