Delhi District Court
Nazir Alam vs Arvind Rahi on 1 December, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.239/14
Date of Institution: 11.02.2014
IN THE MATTER OF:
Nazir Alam
S/o Late Shri Abdul Gaffar
R/o H.No. 51, JSeries
East Mehram Nagar
Delhi Cantt.
Delhi. ...Petitioner
Versus
1. Arvind Rahi
S/o Shri Ramesh Rahi
R/o H.No.T316, Gali No.1
Durga Park
New Delhi.
2. National Insurance Co. Ltd.
Janakpuri Branch
New Delhi. ...Respondents
Final Arguments heard : 28.11.2014 Award reserved for : 01.12.2014 Date of Award : 01.12.2014 Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 1 of 35 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioner that on 13.9.2013 at about 12.15 p.m. the petitioner was going back to his house by his motorcycle bearing No.DL9SZ2820 along with his friend namely Jai Prakash who was the pillion rider from Palam to Mehram Nagar and when the injured crossed the underpass and reached at Dwarka to Sanjay Tpoint Road, in the meantime one vehicle bearing No.DL3CQ7351 (Wagon R) which was driven by the respondent No.1 at a very high speed, rashly and negligently hit the vehicle on the backside, as a result of the accident the vehicle of the injured got damaged and the petitioner sustained grievous injuries and also the right hand of the injured got fractured in the accident. It is averred that the petitioner was bed ridden for three months and he was still undergoing treatment and he had spent an amount of more than Rs.2 lacs. It is stated that in respect of the accident FIR No.300/2013 under Sections 279/337/338 IPC and Section 3/181 MV Act was registered at PS Delhi Cantt. It is averred that the accident was caused due to the sole negligence on the part of the driver of the offending vehicle bearing No.DL3SQ7351 while driving the same at very high speed, rashly and negligently. It is averred that if the respondent No.1 had driven the Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 2 of 35 vehicle at normal speed observing the traffic rules the accident could have been averted and the injured could have been saved from the injuries. It is averred that as such the respondent No.1 is liable to pay the compensation to the petitioner. It is averred that the respondent No.1 is also vicariously liable to pay the compensation being the owner of the offending vehicle as the respondent No.1 was driving the offending vehicle and the insurance company of the offending vehicle is also liable to pay compensation being the insurer of the offending vehicle.
3. It is averred that the petitioner was a young man of just 25 years of age at the time of the accident and having good health and physique when he was injured due to the accident and due to the sudden injuries caused by the accident the petitioner and his other family members had got a traumatic shock and they were suffering not only mental pain and agony but monetary loss also as their only bread earner was laid down on bed for long. It is averred that the injured was working with M/s Aviation Pest Control Corporation office at S313/178, East Mehram Nagar, Mandir, Near Domestic Airport, Palam, New Delhi and was earning Rs.10,000/ per month along with all perks and allowances. It is averred that there is no contributory negligence on the part of the injured. It is averred that the petitioner is entitled for compensation for shock, bodily pain and mental tension suffered due to the accident and the family of the petitioner had become very much mentally perturbed as the parents of the petitioner had immense hope towards him. But due to the Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 3 of 35 accident the parents of the petitioner had lost their hope towards his best future prospects as they had even not developed hope regarding best future. It is averred that the respondent No.1 was arrested, offending vehicle was seized, respondent No.1 was released on police bail and the respondent No.1 is the registered owner of the offending vehicle, therefore the respondents No. 1 and 2 are jointly and severally liable to compensate the petitioner. It is prayed that an amount of Rs.10,00,000/ be awarded as compensation in favour of the petitioner/injured and against respondents jointly and severally.
4. Reply was filed on behalf of the respondent No.1 taking the preliminary objections that the petition does not disclose any cause of action against the respondent No.1. It is averred that the offending vehicle was not driven by the respondent No.1 on the alleged day of the alleged accident on 13.9.2013 or any other day. It is averred that the respondent No.1 has been dragged in the present case with malafide intentions and ulterior motives. It is averred that the petition is bad for misjoinder of necessary parties and the name of the respondent No.1 is liable to be struck off. It is averred that an imaginative and highly exaggerated amount beyond imagination has been prayed for which has no basis or foundation. The averments made in the claim petition were denied. It is averred that though the registration number of the vehicle No.DL3CQ7351 is correct but it was denied that the vehicle was involved in the accident as falsely alleged. It is admitted that the vehicle was registered in the name of the respondent No.1. It is averred that the vehicle was not driven Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 4 of 35 by the respondent No.1 on the day of the alleged accident as has been falsely alleged. It is averred that the vehicle of the respondent No.1 is fully insured under the insurance policy with the respondent No.2. It is averred that the respondent No.1 was not involved in the alleged accident.
5. Reply was filed on behalf of the respondent No.2 stating that the policy No.361801/31/12/6700015985 valid from 14.2.2013 to 13.2.2014 in the name of Col. Ojinder Pal Singh was issued by the company for vehicle No.DL3C Q7351. However the liability of the company was subject to the terms and conditions of the policy. It is averred that the driver Shri Arvind Rahi was not holding a valid and effective driving license at the time of the accident and the police charged him under Section 3/181 MV Act. It is averred that as such no liability can be imposed on the company as there was a violation of the terms and conditions of the policy as the driver was not holding a valid and effective driving license at the time of the accident.
6. Initially Detailed Accident Report was filed by the IO on 25.11.2013 and thereafter the claim petition was filed on 11.2.2014. From the pleadings of the parties, the following issues were framed vide order dated 15.04.2014:
1. Whether the petitioner/injured sustained injuries in the accident which occurred on 13.09.2013 at about 12.15 p.m. at Dwarka to Sanjay Tpoint Road, after crossing underpass, Delhi Cantt, New Delhi caused by rash and negligent driving of vehicle No.DL3CQ7351 driven and owned by respondent No.1 Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 5 of 35 and insured with respondent No.2? OPP.
2. Whether the petitioner/injured is entitled for compensation?
If so, to what amount and from whom?
3.Relief.
An application was filed on behalf of the petitioner for issuance of disability certificate which was allowed vide order dated 8.7.2014.
7. The petitioner appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He stated that he was working as pest control operator with M/s Aviation Pest Control Corporation since long and drawing a salary of Rs.10,000/ per month. He stated that on 13.9.2013 he along with his friend Jai Prakash was going from Palam to Mehram Nagar on the motorcycle No.DL9SZ2820 of Jai Prakash. The motorcycle was being driven by PW1 and Jai Prakash was the pillion rider. At about 12.15 p.m. when they were crossing the underpass and reached at Sanjay T point, Dwarka, one Wagon R car bearing No.DL3CQ7351 came in shooting speed from behind and in an attempt to overtake another vehicle, hit their motorcycle on the right side and fled from the spot. As a result of the impact, PW1 and his friend fell down and PW1 sustained grievous injuries on his hands and part of the fifth finger of his left hand was severed. He stated that public persons caught the respondent No.1 who was driving the car. He stated that the respondent No.1 was driving Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 6 of 35 the offending vehicle in a shooting speed in rash and negligent manner without caring for the safety of others on the road. He stated that the said accident occurred due to the rash and negligent driving of the respondent No.1. Jai Prakash immediately informed his family about the accident and his elder brother Shri Jai Narayan got PW1 and his friend Jai Prakash admitted to Ortho Care Hospital, Najafgarh where he was treated and operated upon. Thereafter his treatment continued. He stated that he had incurred an amount of Rs. 2,00,000/ on his medical treatment till the filing of the petition. Some medical bills had been lost by him and he tried his level best to search for the same but could not trace the same. He stated that his family including his old aged mother was totally dependent upon him. He had good future prospects in his life as he was bright and intelligent. He stated that because of the accident he became permanently disabled and incurred financial loss of work due to the grievous injury suffered by him in the accident. He stated that he could have easily earned Rs.2,00,000/ the loss which was suffered by him. He stated that he had also suffered loss of future prospects of income to the tune of Rs. 2,00,000/. He stated that due to the accident he was still under medical care. He also suffered severe pain and sufferings due to the accident. He had also spent Rs.20,000/ on taxi fare and other transportation of ambulance for his treatment at the hospital. He stated that due to the accident he had gone in a state of trauma and shock. The entire future of PW1 had been groped in dark. Instead of being an asset to the family he had become a liability. He had suffered irreparable loss immensely which could not be compensated in terms Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 7 of 35 of money and he claimed Rs.4,00,000/ towards pain and sufferings and disability caused due to the accident. Copy of election card and Driving License of the petitioner are Ex.PW1/1, salary certificate of the petitioner is Ex.PW1/2, discharge summary dated 13.09.2013 is Ex.PW1/3, medical prescriptions are Ex.PW1/4 (colly), medical bills are Ex.PW1/5 (colly) and FIR is Ex.PW1/6. He was not crossexamined on behalf of the respondents. PE was closed on 2.9.2014.
8. On behalf of the respondent No.2 Shri Shyam Singh, Assistant appeared in the witness box as R2W1 and led his evidence by way of affidavit which is Ex.R2W1/A. He deposed that the vehicle No.DL3CQ7351 was insured in the name of Col. Ojinder Pal Singh vide policy No. 361801/31/12/6700015985 valid for the period from 14.2.2013 to 13.2.2014. The said policy was sent to the insured. He stated that a notice under Order 12 rule 8 CPC was got issued through their advocate on the last known address of the owner and driver to produce the original policy and DL, which the owner and driver had failed to produce. Copy of the policy is Ex.R2W1/1, notice under Order 12 rule 8 CPC is Ex.R2W1/2 and postal receipt is Ex.R2W1/3. He stated that the driver had not produced his DL to the police, therefore the police charged him under Section 3/181 MV Act. Copy of the DAR is Ex.R2W1/4. He stated that the owner cum driver had failed to produce his DL before the police authorities and before the court, therefore he was not holding a valid and effective DL at the time of the accident. Therefore he had breached the terms Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 8 of 35 and conditions of the policy with regard to the DL and the insurance company was not liable to pay any compensation to the petitioner. He was not cross examined on behalf of the petitioner and the respondent No.1. RE was closed on 2.9.2014.
9. I have heard the Learned Counsel for the petitioner as well as the Learned Counsel for the respondent No.2 and perused the record. The petitioner was also examined on 2.9.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
10. My findings on the specific issues are as under:
Issue No. 1
11. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 9 of 35 the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 10 of 35 Sections 166 and 140 of the Motor Vehicle Act.
12. The case of the petitioner is that on 13.9.2013 at about 12.15 p.m. the petitioner was going back to his house by his motorcycle bearing No.DL9SZ2820 along with his friend namely Jai Prakash who was the pillion rider from Palam to Mehram Nagar and when the injured crossed the underpass and reached at Dwarka to Sanjay Tpoint Road, in the meantime one vehicle bearing No.DL3CQ7351 (Wagon R) which was driven by the respondent No.1 at a very high speed, rashly and negligently hit the vehicle on the backside, as a result of the accident the vehicle of the injured got damaged and the petitioner sustained grievous injuries and also the right hand of the injured got fractured in the accident. It was stated that in respect of the accident FIR No.300/2013 under Sections 279/337/338 IPC and Section 3/181 MV Act was registered at PS Delhi Cantt. In paras 2 and 3 of his affidavit Ex.PW1/A the petitioner had reiterated the mode and manner of the accident as stated in the claim petition. He stated that on 13.9.2013 he along with his friend Jai Prakash was going from Palam to Mehram Nagar on the motorcycle No.DL9SZ2820 of Jai Prakash. The motorcycle was being driven by PW1 and Jai Prakash was pillion rider. At about 12.15 p.m. when they were crossing the underpass and reached at Sanjay T point, Dwarka, one Wagon R car bearing No.DL3CQ7351 came in shooting speed from behind and in an attempt to overtake another vehicle, hit their motorcycle on the right side and fled from the spot. As a result of the impact, PW1 and his friend fell down and PW1 Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 11 of 35 sustained grievous injuries on his hands and part of the fifth finger of his left hand was severed. He stated that public persons caught the respondent No.1 who was driving the car. He stated that the respondent No.1 was driving the offending vehicle in a shooting speed in rash and negligent manner without caring for the safety of others on the road. He stated that the said accident occurred due to the rash and negligent driving of the respondent No.1.
13. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of MLC, copy of seizure memos; copy of DD, copy of mechanical inspection report of the offending vehicle and of the motorcycle No.DL9SZ2820, copy of verification report of the RC of the offending vehicle with the copy of documents of transfer of ownership of the vehicle, copy of the insurance policy of the offending vehicle and its verification report, copy of order on application for release of the offending vehicle on superdari along with a copy of the superdarinama and copies of photographs. As per the FIR No.300/13 under sections 279/337 IPC, PS Delhi Cantt the case was registered on the basis of complaint of Jai Prakash who was with the petitioner at the time of the accident wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/337/338 IPC and Sections 3/181 MV Act. It may be mentioned that as per the insurance policy and the reply of the respondent No.2 Col. Ojinder Pal Singh was the insured. The documents Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 12 of 35 of transfer of vehicle in the name of the respondent No.1 have been placed on record and the verification report of the RC also shows the name of the respondent No.1 though the transfer was effected on 21.9.2013. No objection was taken by the respondent No.1 regarding the ownership of the vehicle and in fact he had stated that he was the registered owner of the alleged offending vehicle.
14. The respondent No.1 who is the owner and driver of the alleged offending vehicle had filed the reply averring that the offending vehicle was not driven by the respondent No.1 on the alleged day of the alleged accident on 13.9.2013 or any other day. It was averred that the respondent No.1 had been dragged in the present case with malafide intentions and ulterior motives. It was averred that though the registration number of the vehicle No.DL3CQ7351 was correct but it was denied that the vehicle was involved in the accident as falsely alleged. It was averred that the vehicle was not driven by the respondent No.1 on the day of the alleged accident as had been falsely alleged. It was averred that the respondent No.1 was not involved in the alleged accident. Thus the respondent No.1 had denied that the offending vehicle was being driven by him on the alleged day of the alleged accident or that the same was involved in the accident. However it was stated by PW1 that the driver of the offending vehicle was caught by the public at the spot and the same was also stated in the complaint on which the FIR was registered and in the FIR as well the same is stated and also that the Wagon R in accidental Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 13 of 35 condition was found near the Mehram Nagar Red Light and the respondent No.1 was also found there. Further PW1 has not been crossexamined on behalf of the respondents. The respondent No.1 who is the driver and owner of the offending vehicle has not adduced any evidence to dispute the version put forth by the petitioner or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/337/338 IPC and Sections 3/181 MV Act. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondent No.1 has also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.DL3CQ7351. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
15. It was stated that due to the accident the petitioner sustained grievous injuries and also the right hand of the injured got fractured in the accident. The MLC of the petitioner is on record as per which the nature of injuries was opined to be grievous. Thus it stands established that the petitioner had sustained injuries in the alleged accident. This issue is accordingly decided in Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 14 of 35 favour of the petitioner and against the respondents.
Issue No.2
16. Since issue No.1 has been decided in favour of the petitioner he would be entitled to compensation as per the provisions of the Act. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, he is further entitled to non pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
17. The case of the petitioner is that due to the accident on 13.9.2013 he sustained grievous injuries and also the right hand of the injured got fractured in the accident. It was averred that the petitioner was bed ridden for three months and he was still undergoing treatment and he had spent an amount of more than Rs.2 lacs. The petitioner in paras 2, 4 and 5 of his affidavit Ex.PW1/A had deposed to that effect. He stated that as a result of the impact Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 15 of 35 of the accident, PW1 and his friend fell down and PW1 sustained grievous injuries on his hands and part of the fifth finger of his left hand was severed. Jai Prakash immediately informed his family about the accident and his elder brother Shri Jai Narayan got PW1 and his friend Jai Prakash admitted to Ortho Care Hospital, Najafgarh where he was treated and operated upon. Thereafter his treatment continued. He stated that he had incurred an amount of Rs. 2,00,000/ on his medical treatment till the filing of the petition. Some medical bills had been lost by him and he tried his level best to search for the same but could not trace the same. He stated that because of the accident he became permanently disabled and incurred financial loss of work due to the grievous injury suffered by him in the accident. He stated that due to the accident he was still under medical care. He also suffered severe pain and sufferings due to the accident. He stated that due to the accident he had gone in a state of trauma and shock. He claimed Rs.4,00,000/ towards pain and sufferings and disability caused due to the accident. Discharge summary dated 13.09.2013 is Ex.PW1/3, medical prescriptions are Ex.PW1/4 (colly) and medical bills are Ex.PW1/5 (colly). The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and the nature of injuries was opined to be grievous. The documents placed on record also show that the petitioner had sustained fracture of Volar Barton right and of PP of 5th finger left hand. The documents also show that he remained admitted in hospital from 13.9.2013 to 15.9.2013. Thus the injuries were grievous in nature. The Disability Certificate is also on record as per which the petitioner was a case of post traumatic Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 16 of 35 stiffness right wrist and deformity left hand little finger with total temporary physical disability of 11% in relation to both upper limbs and the disability was temporary in nature though it was not mentioned that any review was needed. Thereafter the petitioner was again got examined by the Disability Board and as per the Disability Certificate it was an 'operated case of right wrist with fixed finger deformity of left little finger with 5% (five percent) permanent physical disability in relation in left upper limb'. Thus the petitioner had sustained disability in the accident.
18. The petitioner was not crossexamined on behalf of the respondents. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner had stated that he had spent an amount of Rs.2,00,000/ on his medical treatment though some of the medical bills had been lost by him. The petitioner had filed bills for an amount of Rs.61,518/ approximately. Looking to the nature of the injuries the petitioner is held entitled to the amount of the bills. The petitioner had also produced an estimate dated 1.1.2014 for an amount of Rs.8,000/ for implant removal surgery but the same has not been got proved. However the petitioner would have incurred some expenses even subsequently. Accordingly an amount of Rs.65,000/ is awarded towards medical treatment and expenses including the amount of the bills.
Suit No.239/14
Nazir Alam Vs. Arvind Rahi & Anr. Page no. 17 of 35 PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
19. It has been held in Divisional Controller, K. S. R. T. C v Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (1969 1 All. E. R. 555) Lord Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monetary assessment."
The case of the petitioner is that due to the accident on 13.9.2013 the petitioner sustained grievous injuries and also the right hand of the injured got fractured in the accident. It was averred that the petitioner was bed ridden for three months and he was still undergoing treatment. PW1 stated that as a result of the impact of the accident, PW1 and his friend fell down and PW1 sustained grievous injuries on his hands and part of the fifth finger of his left hand was severed. Jai Prakash immediately informed his family about the accident and his elder brother Shri Jai Narayan got PW1 and his friend Jai Prakash admitted to Ortho Care Hospital, Najafgarh where he was treated and operated upon. Thereafter his treatment continued. He stated that because of Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 18 of 35 the accident he became permanently disabled and incurred financial loss of work due to the grievous injury suffered by him in the accident. He stated that due to the accident he was still under medical care. He also suffered severe pain and sufferings due to the accident. He stated that due to the accident he had gone in a state of trauma and shock. He claimed Rs.4,00,000/ towards pain and sufferings and disability caused due to the accident. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and the nature of injuries was opined to be grievous. The documents placed on record also show that the petitioner had sustained fracture of Volar Barton right and of PP of 5th finger left hand. Thus the injuries were grievous in nature. The Disability Certificate is also on record as per which the petitioner was a case of post traumatic stiffness right wrist and deformity left hand little finger with total temporary physical disability of 11% in relation to both upper limbs and the disability was temporary in nature though it was not mentioned that any review was needed. As per the subsequent Disability Certificate it was an 'operated case of right wrist with fixed finger deformity of left little finger with 5% (five percent) permanent physical disability in relation in left upper limb'. Thus the petitioner had sustained permanent disability in the accident. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2013, the petitioner is awarded Rs.50,000/ (Rs.Fifty Thousand only) for pain and suffering.
Suit No.239/14
Nazir Alam Vs. Arvind Rahi & Anr. Page no. 19 of 35
20. The petitioner was 25 years of age at the time of the accident and it was so stated in the claim petition and PW1 had also deposed to that effect. Copy of the DL of the petitioner is Ex.PW1/1 as per which the date of birth of the petitioner was 20.10.1988. As such he would have been more than 24 years old on the date of the accident i.e. 13.9.2013. Notice can be taken of the fact that on account of the injuries sustained by him the petitioner may not have been able to perform his day to day duties towards his family and on account of the injuries suffered by him the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.20,000/ (Rs.Twenty Thousand only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards loss of expectation of life though he is awarded an amount of Rs.5,000/ towards disfiguration.
CONVEYANCE AND SPECIAL DIET
21. The petitioner in para 5 of his affidavit Ex.PW1/A had stated that he had spent Rs.20,000/ on taxi fare and other transportation of ambulance for his treatment at the hospital. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the petitioner was taken to Ortho Care Hospital, Najafgarh and that after discharge from hospital he might have hired the services of private conveyance as he would not have been able Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 20 of 35 to drive of his own or to use public conveyance. In the circumstances a sum of Rs.10,000/ (Rs.Ten Thousand only) would be just and proper towards conveyance charges.
22. Although the petitioner has not proved that he was advised special diet but looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.10,000/ (Rs.Ten Thousand only) for special diet.
23. Although the petitioner has not produced any evidence to show that he incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.9,000/ is awarded towards attendant charges.
LOSS OF INCOME
24. It is the case of the petitioner that he was a young man of just 25 years of age at the time of the accident and having good health and physique when he was injured due to the accident and due to the sudden injuries caused by the accident the petitioner and his other family members had got a traumatic Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 21 of 35 shock and they were suffering not only mental pain and agony but monetary loss also as their only bread earner was laid down on bed for long. It was averred that the injured was working with M/s Aviation Pest Control Corporation office at S313/178, East Mehram Nagar, Mandir, Near Domestic Airport, Palam, New Delhi and was earning Rs.10,000/ per month along with all perks and allowances. It was averred that the family of the petitioner had become very much mentally perturbed as the parents of the petitioner had immense hope towards him. But due to the accident the parents of the petitioner had lost their hope towards his best future prospects as they had even not developed hope regarding best future. PW1 in paras 2, 4 and 6 of his affidavit Ex.PW1/A had deposed to that effect. He stated that he was working as pest control operator with M/s Aviation Pest Control Corporation since long and drawing a salary of Rs.10,000/ per month. He stated that his family including his old aged mother was totally dependent upon him. He had good future prospects in his life as he was bright and intelligent. He stated that because of the accident he became permanently disabled and incurred financial loss of work due to the grievous injury suffered by him in the accident. He stated that he could have easily earned Rs.2,00,000/ the loss which was suffered by him. He stated that he had also suffered loss of future prospects of income to the tune of Rs.2,00,000/. He stated that due to the accident he was still under medical care. He stated that due to the accident he had gone in a state of trauma and shock. The entire future of PW1 had been groped in dark. Instead of being an asset to the family he had become a liability. He had Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 22 of 35 suffered irreparable loss immensely which could not be compensated in terms of money. Copy of salary certificate of the petitioner is Ex.PW1/2. PW1 was not crossexamined on behalf of the respondents.
25. The petitioner had produced a salary certificate Ex.PW1/2 but no witness was produced to prove the same. It is also seen that no break up of salary is given. Moreover it was stated in the certificate that after the accident he was on leave, till now but the certificate is dated 13.9.2013 i.e. the date of the accident. Other than the said document nothing has been produced to show that the petitioner was indeed working with the said firm or earning Rs. 10,000/ p.m. During examination by the Tribunal the petitioner stated that he was 24 years old. He stated that at the time of the accident he was doing the work of pest control and earning Rs.10,000/ p.m. He stated that at present he was not doing anything. He stated that he was class 9th pass however he was not able to produce any certificate in that respect. Thus he had stated that at the time of the accident he was earning Rs.10,000/ p.m. but other than Ex.PW1/2 there is nothing to show the same and Ex.PW1/2 has not been got proved through any witness. Further he could not produce any certificate showing his educational qualifications. Considering the facts and circumstances of the case the income of the petitioner is computed on the basis of minimum wages for a nonmatriculate prevalent on the date of the accident i.e. Rs.8,528/ p.m. i.e. Rs.1,02,336/ p.a. Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 23 of 35
26. The petitioner had stated that in the claim petition that he was bed ridden for 3 months and in his affidavit he had stated that he was still under medical care. However there is nothing to show that he was advised bed rest for any particular period or that he remained on bed rest for any particular period. In Ex.PW1/2 it was stated that the petitioner was on leave from the date of accident till now but the certificate itself was dated 13.9.2013. The petitioner has also not produced any witness to prove for how much period he had to remain on leave on account of the injuries sustained in the accident and he had not stated specifically for how much period he could not work on account of the injuries sustained in the accident. During examination by the Tribunal he had stated that at present he was not doing anything but there is nothing to show that the same was on account of the injuries sustained in the accident. The petitioner has also not filed any advice of the doctor by which he was prescribed rest for any specific period. In the absence of any advice of doctor, notice can be taken of the fact that petitioner may not have been able to perform his avocation for some period on account of the injuries sustained in the accident. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs.25,000/ on account of loss of income for the period for which he was not able to work.
27. It is the case of the petitioner that he had sustained 5% permanent physical disability in relation to left upper limb. In Raj Kumar v Ajay Kumar & Anr.,(2011)1 SCC 343, the Hon'ble Supreme Court has held that : Suit No.239/14
Nazir Alam Vs. Arvind Rahi & Anr. Page no. 24 of 35 "4..........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 equitable manner. The court or tribunal has to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. Thus Tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6.Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 25 of 35 of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''.
"8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency)."
Thus it has been held that what requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured i.e. the functional disability and after assessing the loss of earning capacity in terms of percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings.
28. The petitioner has not examined any doctor in the present case who could state about the effect of the disability on the working capacity of the petitioner. As per the Disability Certificate the petitioner was a case of post traumatic stiffness right wrist and deformity left hand little finger with total temporary physical disability of 11% in relation to both upper limbs and the disability was temporary in nature though it was not mentioned that any review Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 26 of 35 was needed and as per the subsequent Disability Certificate it was an 'operated case of right wrist with fixed finger deformity of left little finger with 5% (five percent) permanent physical disability in relation in left upper limb'. Thus the petitioner had sustained permanent disability due to the accident. The petitioner has sustained permanent physical disability of 5% in relation to left upper limb which would have effect on the working capacity of the petitioner. In view of the same considering the nature of disability, the age of the petitioner and other attending circumstances the functional disability in his respect is taken as 3% in relation to the whole body. Accordingly the loss of income of the petitioner shall be 3% of Rs.1,02,336/ i.e. Rs.3,070/ approximately p.a.
29. As observed above the petitioner was more than 24 years old at the time of the accident and suffered disability. As per Sarla Verma v. DTC (2009) 6 SCC 121 the appropriate multiplier applicable shall be of 18. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 27 of 35 actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
As his age was less than 40 years the petitioner would be entitled to an increase of 50% in his income for award of compensation towards loss of earning capacity. After applying the multiplier of 18, the petitioner shall be entitled to loss of income i.e. 3,070/X18 = Rs.55,260/ + 50% towards future prospects i.e. Rs.55,260/ + Rs.27,630/ = Rs.82,890/ (rounded off to Rs. 83,000/).
Thus the total amount towards loss of income would be Rs.1,08,000/. The total compensation is assessed as under:
Medicines and Medical treatment Rs.65,000/
Pain and suffering Rs.50,000/
Loss of Amenities of life Rs.20,000/
Disfiguration Rs.5,000/
Conveyance Rs.10,000/
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Nazir Alam Vs. Arvind Rahi & Anr. Page no. 28 of 35
Special Diet Rs.10,000/
Attendant charges Rs.9,000/
Loss of Income Rs.1,08,000/
TOTAL Rs.2,77,000/
Thus the total compensation would be Rs.2,77,000/.
RELIEF
30. The petitioner is awarded a sum of Rs.2,77,000/ (Rs.Two Lacs Seventy Seven Thousand only) along with interest @ 9% per annum from the date of filing of the DAR till its realization including, interim award, if any already passed against the respondents and in favour of the petitioner. The respondent No.2 is directed to deposit the award amount directly in court by way of crossed cheque/ demand draft within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. 50% of the amount be kept in FDR for a period of 2 years. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
APPORTIONMENT OF LIABILITY:
31. The respondent No.1 is the driver and owner and the respondent No.2 is the insurer of the offending vehicle. It is the case of the respondent No.2 Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 29 of 35 that the driver of the offending vehicle i.e. the respondent No.1 was not holding a valid driving license on the date of the accident which amounted to fundamental breach of condition of policy and as such the insurance company was not liable to pay the compensation. In support of its case the respondent No.2 had produced R2W1 in the witness box who deposed that the vehicle No.DL3CQ7351 was insured in the name of Col. Ojinder Pal Singh vide policy No.361801/31/12/6700015985 valid for the period from 14.2.2013 to 13.2.2014. The said policy was sent to the insured. He stated that a notice under Order 12 rule 8 CPC was got issued through their advocate on the last known address of the owner and driver to produce the original policy and DL, which the owner and driver had failed to produce. Copy of the policy is Ex.R2W1/1, notice under Order 12 rule 8 CPC is Ex.R2W1/2 and postal receipt is Ex.R2W1/3. He stated that the driver had not produced his DL to the police, therefore the police charged him under Section 3/181 MV Act. Copy of the DAR is Ex.R2W1/4. He stated that the owner cum driver had failed to produce his DL before the police authorities and before the court, therefore he was not holding a valid and effective DL at the time of the accident. Therefore he had breached the terms and conditions of the policy with regard to the DL and the insurance company was not liable to pay any compensation to the petitioner. He was not crossexamined on behalf of the petitioner and the respondent No.1.
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32. It is seen that no copy of the DL of the respondent No.1 was placed on record by the IO with the DAR and in fact it was stated in the charge sheet that the driver had not produced the DL and the respondent No.1 was charge sheeted for the offence under Sections 3/181 MV Act. The respondent No.1 had also not placed any DL on record in the present case. Further the respondent No.2 had issued notice to the respondent No.1 to produce the DL of the respondent No.1 but the respondent No.1 did not produce any DL nor appeared to crossexamine R2W1. In New India Assurance Co. Ltd. v. Sanjay Kumar & Ors. ILR 2007 (II) Delhi 733 the Hon'ble High Court observed as under:
"23. Where the assured chooses to run away from the battle i.e. fails to defend the allegation of having breached the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at the trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."Suit No.239/14
Nazir Alam Vs. Arvind Rahi & Anr. Page no. 31 of 35 In the instant case the respondent No.2 had sent the notice under Order XII Rule 8 CPC to the driver and owner and there is nothing more that the insurance company could have done. Further the report of the IO is there and the respondent No.1 has not rebutted the same.
33. It is settled law that the insurance company has to establish that there was a conscious breach of the terms and conditions of the policy. It is now well settled that in such cases the insurance company would first have to satisfy the liability towards third party though it may subsequently recover the amount from the insured. The issue was considered at length by the Hon'ble High Court of Delhi in Sanjay v. Suresh Chand & Ors. F.A.O. No.445/2000 decided on 3.8.2012 and it was observed:
"The issue of satisfying the third party liability even in case of breach of the terms of insurance policy is settled by three Judge Bench report in Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21. As per Section 149(2) of the Motor Vehicles Act (the Act), an insurer is entitled to defend the action on the grounds as mentioned under Section 149(2)(a)
(i)(ii) of the Act. Thus, the onus is on the insurer to prove that there is breach of the condition of the policy. It is well settled that the breach must be conscious and willful. Even if a conscious breach on the part of the insured is established, still the insurer has a statutory liability to pay the compensation to the third party and will simply have the right to recover the same from the insured/tortfeasor either in the same proceedings or by independent proceedings as the case may be, as ordered by the Claims Tribunal or the Court. The question of statutory liability to pay the compensation was discussed in detail by a two Judge Bench of the Supreme Court in Skandia Insurance Company Limited v. Kokilaben Chandravadan, (1987) 2 SCC 654 where it was held that Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 32 of 35 exclusion clause in the contract of Insurance must be read down being in conflict with the main statutory provision enacted for protection of victim of accidents. It was laid down that the victim would be entitled to recover the compensation from the insurer irrespective of the breach of the condition of policy. The three Judge Bench of the Supreme Court in Sohan Lal Passi analyzed the corresponding provisions under the Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988 and approved the decision in Skandia. In New India Assurance Co., Shimla v. Kamla and Ors., (2001) 4 SCC 342, the Supreme Court referred to the decision of the two Judge Bench in Skandia, the three Judge Bench decision in Sohan Lal Passi and held that the insurer who has been made liable to pay the compensation to third parties on account of issuance of certificate of insurance, shall be entitled to recover the same if there was any breach of the policy condition on account of the vehicle being driven without a valid driving licence.
20. This Court in MAC APP. No.329/2010 Oriental Insurance Company Limited v. Rakesh Kumar and Others and other Appeals decided by a common judgment dated 29.02.2012, noticed some divergence of opinion in National Insurance Company Limited v. Kusum Rai & Ors., (2006) 4 SCC 250, National Insurance Company Limited v. Vidhyadhar Mahariwala & Ors., (2008) 12 SCC 701; Ishwar Chandra & Ors. v. The Oriental Insurance Company Limited & Ors.,(2007) 10 SCC 650 and Premkumari & Ors. v. Prahalad Dev & Ors., (2008) 3 SCC 193 and held that in view of the three Judge Bench decision in Sohan Lal Passi (supra) and Swaran Singh, the liability of the Insurance Company visàvis the third party is statutory. If the Insurance Company successfully proves the conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner or driver, as the case may be."
Thus if the insurance company proves conscious breach of the terms of the policy, it would be entitled to recovery rights. In the instant case the insurance Suit No.239/14 Nazir Alam Vs. Arvind Rahi & Anr. Page no. 33 of 35 company has succeeded in discharging the onus in this regard and it stands established that the respondent No.1 was not holding a valid license on the date of the accident and thereafter the respondent No.1 has not appeared to rebut the same.
34. In view of the settled law the insurance company is liable qua third party though it shall be vested with the right to recover the amount of liability from the insured after depositing the compensation awarded to the third party. Since the respondent No.1 did not produce a valid license the respondent No.2 shall have the right to recover the amount of compensation from the respondent No.1 who is the present registered owner of the offending vehicle and was also driving the offending vehicle at the time of the accident though the insurance policy was in the name of Col. Ojinder Pal Singh. Accordingly the respondent No.2 shall deposit the amount of compensation for which the respondent No.1 would be liable and after depositing the same shall have the right to recover the same from the respondent No.1. The respondent No.2 being the insurer is directed to deposit the award amount in the court by way of crossed cheque/ demand draft within 30 days of the passing of the award with interest at the rate of 9% from the date of filing of the DAR till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
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35. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.2 shall deposit the award amount along with interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 03.03.2015.
Attested copy of the award be given to the parties free of cost. File be consigned to record room.
Announced in open court
on this 1st day of December, 2014 (GEETANJLI GOEL)
PO: MACT2
NEW DELHI
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