Delhi District Court
Sh. Dharam Vir S/O Sh. Chhottu Ram vs ) Flow Well Plast. Chem. Pvt. Ltd on 7 June, 2011
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In the court of Sh. Ashwani Sarpal, Addl. District & Sessions
Judge cum Presiding Officer, Motor Accident Claim Tribunal
Rohini Courts, Delhi
(MACT Case no. 342/10/07)
Sh. Dharam Vir S/o Sh. Chhottu Ram
R/o Flat No. 606-607, Pocket-I
Sector-A-6, Narela, Delhi --------Petitioner/Claimant
Versus
1) Flow Well Plast. Chem. Pvt. Ltd.
Plot No.1-A, SIEL Industrial Estate
CPW Complex, Village Dabanheri
Rajpura, Distt. Patiala, Punjab
2nd address at 202, P.P. Towers
Netaji Subhash Place, Pitampura, Delhi
2) The New India Assurance Co. Ltd.
5th Floor, Tower-II, Jiwan Bharti Building
Connaught Place, New Delhi
3) Sh. Ram Niwas S/o Sh. Lal Chand
572/3, Panna Udyan, Narela, Delhi --------------Respondents
Date of institution----9-3-2007
Date of decision-------7-6-2011
(Application u/s 140 and 166 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:-
Petitioner Sh. Dharam Vir, aged about 32 years through the present petition claimed compensation of Rs. 10 lakhs along with interest @ 18% p.a. on the ground that on 22-2-2007 at about 4.30 p.m., he was going on his motorcycle bearing No. DL-4S-AU-4024 from his residence to his Gym Centre situated at Narela and when he reached sector-6 on the road which -2- divides Pocket-I and Pocket-7, then one truck bearing no. PB-11-AD-4457 being driven by respondent no. 3 at a very high speed in rash and negligent manner came from behind and hit his motorcycle. Due to this accident, the petitioner fell down along with his motorcycle and suffered grievous injuries. A criminal case under section 279/337 IPC was registered against respondent no. 3 vide FIR No. 98/07 in police station Narela. Petitioner alleged that he was running a physical fitness centre (Gym) and was earning Rs. 8,400/- per month. He claimed compensation from the respondents being owner, insurance company and driver of the offending truck under various pecuniary and non pecuniary heads.
Respondent no. 1 which is a private limited company and owner of the offending truck in its written statement totally denied happening of an accident with its vehicle. It is alleged that petitioner was driving his motorcycle in zig-zag manner and could not control it, so himself met with an accident. Respondent no. 2 insurance company and respondent no. 3 driver did not file any written statement and absented from the court so became exparte. Lateron respondent no. 2 moved an application under Order 9 Rule 7 CPC for setting aside the exparte order but that application was rejected on 16-4-2010 being moved after a delay of about 2½ years and written statement of insurance company was not allowed to be taken on record though it was permitted to participate in the future proceedings and trial as well as to take all the defences available to it under the Motor Vehicle Act. On the basis of pleadings of the parties, following issues were framed on 6-9-2007 by my ld. Predecessor:
1) Whether on 22-2-2007 at 4.30 p.m. motorcycle no. DL-4S-AU-4024 which petitioner was riding was hit by truck no. PB-11-AD-4457 which was driven in a rash and negligent manner by its driver and caused injuries to petitioner? OPP
2) Whether the vehicle was duly insured with R-2? OPR-1.
3) Whether petitioner is entitled to compensation as prayed for, if so from which of the respondents? OPP
4) Relief.-3-
In order to prove his case, petitioner examined himself as PW-1, Dr. Vivek Kumar from Sir Ganga Ram Hospital as PW-2 and Dr. Simarjeet Singh from General Hospital, Sonipat as PW-3. Counsels for respondents did not appear to cross examine PW-1 and his cross examination was treated as nil on 6-8-2009. Thereafter application moved by respondent no. 2 insurance company on 16- 4-2010 to recall PW-1 for cross examination was dismissed on 30-4-2011.
Respondent no. 1 examined three witnesses namely its manager Sh. Ravinder as R1W1, Sh. Rajinder Singh, Record Keeper from Licensing Authority as R1W2 and Sh. S.N. Gupta, Senior Branch Manager of respondent no. 2 as R1W3. Lateron the request made by respondent no. 1 to recall R1W2 was rejected vide order dated 21-5-2011. In order to seek certain clarifications of documents Mark-A and Mark-B, R1W3 was recalled by the court suo-moto on 30-4-2011.
The insurance company respondent no. 2 examined one of its officials Sh. Nagendra Kumar Saxena as R2W1. Respondent no. 3 driver stepped into the witness box and examined himself as R3W1. I have heard counsel for the parties and gone through the record. My decision on the above mentioned issues is as under:
Issue no. 1:-
Petitioner PW-1 in his affidavit of evidence disclosed how and in which manner accident took place. He specifically alleged that offending truck came from behind being driven by respondent no. 3 in rash and negligent manner and hit his motorcycle which was being driven by him in proper manner as per traffic rules. It is also stated by PW-1 that due to this accident, he suffered injuries. He also placed on record certified copies of criminal case record Ex. PW1/2 to show that police after investigation found that accident took place due to fault and negligence of the respondent no. 3. Counsel for respondents did not came forward to cross examine the petitioner and the court closed the right of respondents in this regard and treated cross examination as nil. I find nothing in the statement of PW-1 to discard his version regarding manner of accident.
Respondent no. 3 driver of the offending truck while appearing as a witness R3W1 admitted in his cross examination that accident had taken place with his truck. R1W1 though was not an eye witness of the accident but -4- deposed about alleged manner of accident in detail in his affidavit of examination of chief and that hearsay evidence is liable to be ignored. Moreover R1W1 admitted in his cross examination that his truck was seized by police in the criminal case which had met with an accident. Thus the admissions made by R1W1 and R3W1 in their cross examination are sufficient to reject the theory of respondent no. 1 raised in its written statement that no accident had took place with the offending vehicle. They also admitted that driver respondent no. 3 is facing trial of criminal case and had never made any complaint to any higher authority against his alleged false implication in the criminal case. It is also not the case of respondent no. 3 that he had any previous enmity with petitioner or IO of the case which facilitated them to involve him in the alleged false criminal case. The version of the respondent no. 3 that petitioner was driving motorcycle in zig-zag manner and immediately took a wrong turn is not believable especially when he did not came forward to cross examine him in this regard and also did not file any written statement. The uncontroverted and unrebutted deposition of petitioner coupled with the criminal prosecution of respondent no. 3 by the police itself is sufficient to say that accident took place due to faulty and improper driving of offending truck by respondent no. 3. I find no ground to disbelieve the statement of petitioner PW-1 and accordingly it is held that accident had taken place due to rash and negligent driving of offending truck by respondent no. 3 by which petitioner had suffered grievous injuries and there was no negligence on the part of the injured petitioner. This issue is thus decided in favour of petitioner and against the respondents.
Issue no. 2:-
Respondent no. 2 insurance company tried to show that offending truck bearing no. PB-11-AD-4457 was not insured with it. As per RC of this offending truck, it was manufactured in the year 2006 and was bearing engine number 110013 and chassis number 004068. However as per insurance policy Ex. R1W3/1 produced by respondent no. 1, the engine number of offending truck is 813617 and chassis number is 707073. The insurance policy of this truck was obtained first time on 13-4-2006 being a new truck while taking out from the premises of dealer and at that time its registration number was not available. Though there was defaults on the part of the respondent no. 1 for -5- not furnishing the registration number of the truck ever to the insurance company after it was obtained from the transport department but insurance company was also highly negligent in not asking for the registration number and continued to re-insured the vehicle from time to time without entering into the particulars of registration number in its record nor asked the owner to furnish the same ever. R1W1 in his statement alleged that the wrong particulars of engine and chassis number of offending truck were lateron got rectified by respondent no. 2 insurance company on 10-6-2010 during pendency of the present petition and this fact is admitted by Sh. S.N. Gupta, Senior Branch Manager of respondent no. 2 insurance company when he was recalled by the court on 30-4-2011 suo-moto. He admitted that on the basis of report of investigator of the company Mark-B, he had prepared the report Mark-A and sent it to Divisional Manager for rectification of the particulars of the offending truck in the insurance policy. Mere fact that his recommendation was not allegedly approved by higher authorities itself is not sufficient to discard the documents and reports of respondent no. 2 insurance company especially when that disapproval note of higher authority is not produced in the court till date. This official in fact further admitted that disapproval was only verbal and not in writing so he himself had withdrawl his recommendation Mark-A. Respondent no. 2 insurance company cannot ignore its own documents in which there is an admission that wrong particulars were noted in the insurance policy and infact the offending truck was insured with it on the date of accident as per insurance policy Ex. R1W3/1 (also as R2W1/1). Mere fact that these documents were the internal communications of the insurance company and even if the same were obtained by respondent no. 1 unauthorizedly itself is not sufficient to reject the admissions made by the respondent no. 2 against itself. There is no doubt that respondent no. 2 insurance company tried to mislead the court and played fraud upon the court by wrongly alleging that offending vehicle was not covered under the insurance policy in question. Hence after relying upon the clarificatory statement of Sh. S.N. Gupta, officer of respondent no. 2 as well as his reports Mark-A and Mark-B, it is held that offending truck was infact duly insured with the respondent no. 2 company on the date of accident and mere mentioning of wrong particulars of engine and chassis number in the insurance policy is of -6- no consequences. This issue is thus decided in favour of petitioner and respondent no. 1 and against the respondent no. 2.
Issue no. 3:-
The medical record of petitioner point out that the injuries suffered by him were found grievous in nature. Petitioner remained admitted in Sir Ganga Ram Hospital for five days from 22-2-2007 to 26-2-2007. During hospital admission, he was operated upon and after discharge his treatment continued as OPD patient. He was again admitted in the same hospital for one day on 22-3-2007 and again for six days from 31-3-2007 to 5-4-2007 due to some complications. As per discharge summery, petitioner had suffered crush injuries. Some external fixators were affixed on his foot which was removed lateron. He had also undergone some flap cover and its insetting. As per record, petitioner lastly visited hospital on 25-7-2007. He was advised bed rest for about four months. It means that treatment of petitioner continued for a period of five months and accordingly he is liable to be paid compensation of loss of income of five months.
The accident took place 22-2-2007. Petitioner in his affidavit of evidence stated that he was running a Physical Fitness Centre (Gym) at Narela at the time of accident and was earning sum of Rs. 10,000/- per month. However in his petition, he had stated his income at Rs. 8,400/- per month. Petitioner has not placed on record any document in this regard as well as of his earning. He has also not disclosed the exact address where his alleged gym was running. There is nothing on record to point out existence of any such Gym or employment of petitioner in it. There is no document to point out that any permission was obtained from any authority to run this alleged gym or it was allegedly owned by him. Petitioner has not filed any document of his qualification or any degree or diploma of giving physical fitness training to others. In such circumstances, the petitioner can presume to be earning sum of Rs. 3,470/- per month according to the schedule of Minimum Wages Act under the category of unskilled worker in order to count his loss of income during the period of treatment of five months as held abvoe. Hence petitioner is entitled to sum of Rs. 17,350/- as loss of income for a period of five months (Rs. 3,470 x 5).
PW-2, plastic surgeon of a reputed hospital issued a certificate Ex. PW1/46 regarding requirement of future treatment in respect of reconstruction -7- of left foot of the petitioner with flap thinning and its estimated cost at Rs. 75,000/-. Nothing has come in the cross examination of this witness to impeach his competency and genuineness of his estimate. Mere fact that in govt. hospitals such future treatment is also available at lesser costs itself is not sufficient to reject this certificate. A person cannot be compelled to take all of his treatments from govt. hospitals only. It is a judicial noticeable fact that quick and better treatments as well as extensive facilities are generally provided by private hospitals and every person who can afford expenses of private hospital prefers to avoid taking treatment from govt. hospital. Accordingly, this certificate has to be relied upon and is liable to be considered. This certificate was issued on 5-3-2009 and now after more then two years, the cost of future treatment must have increased to some extent. Hence, I deem it proper to award sum of Rs. 1,00,000/- towards future treatment expenses. In order to rule out the apprehension of the insurance company that petitioner may not get future treatment and may misuse this amount for his personal expenses can be met by giving certain directions about its utilization.
PW-3 proved disability certificate of petitioner Ex. PW3/A which shows that he had suffered 15% temporary disability only in respect of stiffness of left foot and ankle and disfigurement. Temporary disability certificate is given where the disability is likely to be removed after some time. However in this certificate Ex. PW3/A there is nothing to show after how much time, this temporary disability would be removed. Since the petitioner has not suffered any permanent disability, so no question of loss of any earning capacity arises. The case law cited Saurabh Kumar vs. Naresh Kumar 2007 (3) TAC 420 (Delhi) is totally distinguishable from the facts and circumstances of the present case because in this cited case there was a permanent disability of 80% due to amputation of right leg above knee which is not the present case. Accordingly the request of counsel for petitioner to award compensation according to this cited judgment is liable to be rejected. Another cited case Arun Sehgal vs. Jai Ram Vashist FAO No. 120/91 decided by Delhi High Court on 10-12-2010 though pertains to question of temporary disability but in that case there was an opinion of suffering of temporary disability for a period of two years but here in the present case, there is nothing in the disability certificate upto which period it will remain.-8-
Hence no reliance on this case can be placed being distinguishable from the facts and circumstances of the present case. However the inconvenience suffered by petitioner due to stiffness of ankle and knee as well as disfigurement of his foot can be compensated under different heads but he is not entitled to any loss of future earnings on account of this temporary disability which is also not clear upto what period it will go on.
Medical record point out that petitioner got all his treatments from private hospitals. He has placed on record certain medicine bills and receipts of hospital admission etc. Ex. PW1/1 to 34 which show that he had incurred expenses of Rs. 1,76,623.97 paisa upon his treatment. No dispute regarding the correctness and genuineness of these bills is raised nor any evidence is brought on record by the respondents to point out that these are forged or fabricated. Hence the amount of these medical bills at Rs. 1,76,624/- in round figure is liable to be paid to him. The figure of bills at Rs. 1,76,698/- given by petitioner in his affidavit is not correct as he appears to have miscalculated the amount of the bills.
Petitioner has alleged that he had spent Rs. 40,000/- on conveyance and special diet but he has not given any breakup of these expenses. Petitioner remain admitted in hospital thrice and also visited hospital several times as per medical record though no proof of spending upon any conveyance is brought on record. He must have visited hospital on some conveyance. In case of sickness and serious injury, a special diet in the form of healthy food, juices, milk, etc. is provided instead of or in addition to the normal food. Hence in absence of any documentary evidence but keeping in view his hospital visits, period of treatment and nature of injuries, I am of the view that maximum petitioner can be paid Rs. 20,000/- towards special diet and conveyance.
Petitioner had suffered crush injuries and fractures. He had suffered temporary disability and confined to bed for four months. His foot has become disfigured. Judicial notice can be taken of the fact that due to such type of injuries, stiffness of knee and ankle and temporary disability as is suffered by the petitioner, he must have faced difficulty and inconvenience to perform even daily personal routine acts during the period of about five months. He must have suffered great pain and sufferings and also had undergone some shock of accident and could not have enjoyed the amenities -9- of life for few months. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the age, status and condition of the petitioner, extent of temporary disability, hospital admission and visits etc. he is granted lump sum amount of Rs. 1,00,000/- towards pain and sufferings, inconvenience, mental shock, disfigurement and loss of amenities etc. Accident had taken place on 22-2-2007. R1W2 from the office of Licensing Authority proved various documents to show that driving license of respondent no. 3 had already been cancelled on 9-2-2007 as a request was received from traffic police due to involvement of respondent no. 3 in previous fatal accident case registered vide FIR no. 16/06 under section 279/304-A IPC of police station Timarpur. The concerned MLO issued the show cause notice to the respondent no. 3 but he did not appear nor filed any reply so his driving license was cancelled on 9-2-2007. This witness had produced all the necessary documents and proceedings of MLO Ex. R1W2/A and nothing was suggested to him that those were fake or manipulated documents. This witness was summoned by respondent no. 1 itself and virtually had deposed against it. He was not declared hostile nor any question about irregularity or illegality in the proceedings of MLO was put. It is not the case of respondent no. 1 that it had no knowledge of the cancellation of driving license proceedings. The concerned MLO was not under obligation to find out with whom driver respondent no. 3 was working at the relevant time so to inform him about the order of cancellation of driving license. In such situation, the statement of R1W2 has to be relied upon. Thus from the statement of this witness, it is proved that respondent no. 3 had been declared disqualified to drive the offending truck as his driving license was already cancelled. Respondent no. 3 was not having any valid and legal driving license on the date of accident so in such circumstances, the entire responsibility to pay the compensation falls upon respondent no. 1 owner of the truck in question.
Though it is established above while deciding issue no. 2 that offending vehicle was duly insured with the respondent no. 2 insurance company but due to driving of offending vehicle in question by a person whose driving license was duly cancelled by the competent authority, the respondent no. 1 owner of the truck becomes liable to pay the entire compensation -10- amount. Respondent no. 2 insurance company is not liable to indemnify the owner due to breach of basic term and condition of the insurance policy.
In view of the above discussions, this issue is decided in favour of petitioner by holding that he is entitled to get the following total compensation from the respondent no. 1:
a) Medical expenses-----------------------------------Rs. 1,76,624/-
b) Future treatment expenses----------------------Rs. 1,00,000/-
c) Loss of income---------------------------------------Rs. 17,350/-
d) Pain and sufferings etc.---------------------------Rs. 1,00,000/-
e) Special diet & conveyance charges-----------Rs. 20,000/-
__________________ Total Rs. 4,13,974/-
As sum of Rs. 1,00,000/- upon future treatment is yet to be spent so no interest is payable on this amount. Petitioner shall be entitled to interest at the rate of 7.5% p.a. on the amount of Rs. 3,13,974/- only from the date of institution of the petition i.e. 9-3-2007 till realization.
Issue no. 4 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 1 owner of the offending truck is directed to pay within 30 days a sum of Rs. 4,13,974/- along with interest at the rate of 7.5% p.a. on the amount of Rs. 3,13,974/- from 9-3-2007 till this amount is fully paid.
It is ordered that sum of Rs. 1,00,000/- awarded against future treatment expenses shall not be paid to the petitioner but shall remain deposited in the court in FDR in the name of court. This amount shall be directly paid to Sri Ganga Ram Hospital by the court after petitioner undergoes necessary procedure of plastic surgery as per requirement of certificate Ex. PW1/46. Petitioner is required to get this treatment within period of one year from the date of deposit of this amount otherwise it shall be returned back to respondent no. 1. If the expenses of future treatment exceeds sum of Rs. 1 lakh and interest accrued on FDR, then the excess amount shall be paid by the petitioner from his own pocket but if the amount comes to less then Rs. 1 lakh -11- and its FDR interest, then the balance amount shall be returned to respondent no. 1.
It is further ordered that out of the compensation amount payable to the petitioner sum of Rs. 2,00,000/- be kept in the FDR in his name for a period of five years. This FDR shall not be encashed without permission of the court. No loan or advance shall be granted to the petitioner on this FDR. Petitioner however shall be allowed to withdraw interest accruing on this FDR after every three months.
In his statement, witness of respondent no. 1 R1W1 had produced copies of reports Mark-A and Mark-B to show that insurance company had rectified the mistakes of engine and chassis number in the insurance policy and in the cross examination suggestions were given that these documents are forged and fabricated. Lateron Sh. S.P. Gupta, Senior Branch Manager of the respondent no. 2 insurance company admitted in his clarificatory statement dated 30-4-2011 that these documents were in existence and infact were in his own handwriting which were forwarded to higher authorities. Insurance company since beginning denied the existence of insurance policy in respect of offending truck and tried to set up different contradictory story for which it can be prosecuted for perjury and for misleading the court but by taking lenient view, I simply impose costs of Rs. 25,000/- upon the respondent no. 2 insurance company and direct it to deposit the same within 30 days in Prime Minister's Relief Fund and produce the receipt of the same in court failing which the court will get it recovered through attachment proceedings. Copy of this judgment be given to petitioner and counsel for respondent no. 1 and 2. File be consigned to record room.
(Ashwani Sarpal)
Dt. 7-6-2011 Judge, MACT (Outer-II)