Delhi District Court
) Suit No: 270/ vs Smt Charanjeet Kaur W/O Shri Ramnik ... on 30 March, 2012
IN THE COURT OF SHRI PREM KUMAR BARTHWAL,
PO:MACT(SE01), SAKET COURTS, NEW DELHI
1) Suit No: 270/10
Unique ID No: 02406C0303212010
Smt. Indra Vaide W/o Shri Ashok Kumar,
R/o H. No. A49, 2 Floor, East of Kailash,
nd
New Delhi - 110 065. ........PETITIONER
AND
2) Suit No: 553/10
Unique ID No: 02406C0339772010
Mrs. Sawarn Lata W/o Shri Anil Kumar Pathania,
C/o Mahesh Malik, First Floor, Gali No. A373,
Subhash Market, Kotla Mubarakpur,
New Delhi .......PETITIONER
VERSUS
1. Smt Charanjeet Kaur W/o Shri Ramnik Singh,
R/o A38, 2 Floor, Street No. 3, Amritpuri,
nd
East of Kailash, New Delhi.
2. Shri Ramnik Singh S/o Shri Pritam Singh Tara,
R/o A38, 2 Floor, Street No. 3, Amritpuri,
nd
East of Kailash, New Delhi.
Suit No. 270/10 & 553/10 Page 1 of 26
3. The New India Assurance Co. Ltd.,
M66, MBlock Market, G.K. MarketI,
New Delhi.
........RESPONDENTS
Date of Institution of petition No. 270/10: 28.05.2010 Date of Institution of petition No. 553/10: 27.09.2010 Date on which the Award/judgment reserved: 29.03.2012 Date on which the Award/judgment pronounced: 30.03.2012 A W A R D:
1. Vide this common judgment, I shall dispose off two claim petitions i.e. petition bearing No. 270/10 titled "Indra Vaide Vs Charanjeet Kaur & Ors. and petition bearing No. 553/10 titled "Sawarn Lata Vs. Charanjeet Kaur & Ors." as these two claim petitions have arisen out of the same accident which had taken place on 09.04.2010 and all the respondents are common and these two petitions stood consolidated vide proceedings dated 27.09.2010.
The plea of the petitioners is that the petitioners, Smt. Indra Vaide and Smt. Sawarn Lata had sustained injuries in a road vehicular accident which had taken place on 09.04.2010 involving car bearing registration no. DL4CF1835 driven by respondent no. 1, Smt. Charanjeet Kaur. A Detailed Accident Report (DAR) was filed by the Suit No. 270/10 & 553/10 Page 2 of 26 police in respect of this accident (FIR No 177/10, PS Amar Colony) and the said DAR was clubbed with the present claim petition vide proceedings dated 09.07.2010.
2. The notices of the petitions were issued to the respondent no. 1, 2 and 3 who are respectively the driver, owner and Insurer of the offending vehicle. The respondents no. 1 and 2 have filed their joint written statements denying the claim of the petitioners and contending that the respondent no.1 was holding a Learners' driving licence and was accompanied by trainer, Sh Kulvinder Singh, who was duly licensed to drive the vehicle and that their vehicle was carrying 'L' Plate both in front and rear side of the vehicle and that the vehicle was insured with respondent no. 3. The respondent no. 1 and 2 have further contended that the accident had taken place due to negligence on part of the petitioners themselves as they were gossiping on the road without caring for the traffic and that they had come before the car suddenly. The respondent no. 3/Insurance Company has also filed its written statement through its counsel denying the claim of the petitioners and contending that there were breach of policy no. 310500/31/09/01/00001969 issued for the period 03.09.2009 to 02.09.2010.
Suit No. 270/10 & 553/10 Page 3 of 26
3. From the pleadings of the parties following issues were framed for consideration in claim petition no. 270/10 on 01.09.2010;
1. Whether the petitioner suffered injuries in an accident that took place on 09.04.2010 at about 06.35 p.m. involving Maruti Car No. DL4CF1835, driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3?
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief
4. Following issues were framed for consideration in claim petition no. 553/10 on 19.01.2011:
1. Whether the petitioner suffered injuries on 09.04.2010 due to rash and negligent driving of respondent no. 1 involving vehicle bearing registration no. DL4CF1835?
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief
5. In order to prove their claim, the petitioners, Smt. Indra Vaide and Smt. Sawarn Lata have got themselves examined as PW1 and PW2 respectively. Dr. Sudhir Gupta, Sr. Resident, Orthopedics, Pt. Madan Mohan Malviya Hospital, Malviya Nagar, Suit No. 270/10 & 553/10 Page 4 of 26 New Delhi has been got examined as PW3. The Ld counsel for the petitioners has closed evidence on behalf of both the petitioners vide his statement recorded on 16.01.2012. The respondent no.1, Smt Charanjeet Kaur has got examined herself as R1W1 and Sh Kulvinder Singh S/o Sh Rajender Singh has also been got examined by respondent no. 1 as R1W2. The respondent no. 2, Sh Ramnik Singh has got himself examined as R2W1. The Ld counsel for R1 and R2 has closed evidence on behalf of the said respondents vide his statement recorded on 26.03.2012. The respondent no. 3/Insurance Company has got examined Shri Ramesh Lal, Development Officer (Admn), M/s The New India Assurance Company Ltd. as R3W1 in its defence. The Ld counsel for R3/Insurance company has closed evidence on behalf of the said respondent vide his statement recorded on 26.03.2012.
6. I have heard the learned counsels for the parties and gone through the testimonies of the witnesses and perused the record. My findings to the issues are as under : ISSUE NO. 1 (COMMON IN ALL CLAIM PETITIONS):
7. Since the present petitions are under Section 166 of M V Act, it was the bounden duty of the petitioners to prove that the respondent No. 1 was rash and negligent in driving the offending Suit No. 270/10 & 553/10 Page 5 of 26 vehicle at the time of accident. In order to prove this issue, the learned counsel for the petitioners has relied upon the statements of PW1, Smt. Indra Vaide and PW2, Smt. Sawarn Lata who have deposed that on 09.04.2010 at about 06.35 p.m., they were going to their shop (Parlour) and when they had reached in front of House No. B160, BBlock, East of Kailash, New Delhi, the offending vehicle i.e. one Maruti Car 800 bearing registration no. DL4CF1835, driven by respondent no. 1 in a most rash and negligent manner came from their back side at a very high speed and was driven in total contravention of traffic rules and regulation and the said car hit/struck against them due to which they fell down on the road and sustained multiple injuries. These witnesses were crossexamined by the learned counsels for the respondents but nothing beneficial to the respondents has emerged out of the same which may throw any doubt on their version regarding the manner in which the accident had taken place.The respondent no 2, Sh Ramnik Singh, R2W1 has deposed that he is the owner of Maruti Car bearing no. DL4CF1835 and he has admitted in his crossexamination on 26.03.2012 that his said vehicle was seized by the police in FIR No 177/10, PS Amar Colony and he had got the same released on superdari. The respondent no 1, Smt Charanjeet Kaur has got herself examined as Suit No. 270/10 & 553/10 Page 6 of 26 R1W1 and has deposed that she had a valid learners' driving licence and that she had a duly licenced person besides her at the time of accident. R1W1, Smt Charanjeet Kaur has further deposed that there was 'L' marking on both front and rear of the offending vehicle and that the accident had taken place due to negligence of the petitioners. However, during her crossexamination on 26.03.2012, the R1W1 has admitted that she was arrested by the police officials of PS Amar Colony in FIR No. 177/10 and the trial of the said case is pending in the court of Ms Mona Tardi Kerketta, Ld MM, Saket Courts, New Delhi. The statements of PW1, Smt. Indra Vaide and PW2, Smt. Sawarn Lata stands corroborated by the certified copies of the Final Report U/s 173 CRPC, Ex.C1 (Colly) filed by the police in respect of this accident (FIR No. 177/10, PS Amar Colony) against the R1/driver of the offending vehicle for trial of offences U/s 279/338 IPC. The certified copies of FIR, Site Plan have also been filed on record by the petitioners. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled "Basant Kaur & Ors. Vs. Chattar Pal Singh & Ors" [2003 ACJ 369 M.P. (DB)] wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of Suit No. 270/10 & 553/10 Page 7 of 26 offending vehicle is responsible for causing the accident. Further, the Hon'ble High Court of Delhi has held in case titled "National Insurance Company Limited Vs. Pushpa Rana" [ACJ 287] that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. A roving inquiry is not required to establish the rashness and negligence on the part of the driver as was held in 'Kaushnumma Begum and others v/s New India Assurance Company Limited' [2001 ACJ 421 SC] & the issue of wrongful act or omission on the part of 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 injuries or death to a human being or damage to property would make the petition maintainable. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is Suit No. 270/10 & 553/10 Page 8 of 26 because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
8. In view of the above discussions, it stands proved on record that the petitioners, Smt. Indra Vaide and Smt. Sawarn Lata had suffered injuries due to rash and negligent driving of respondent no 1, Smt. Charanjeet Kaur on 09.04.2010. Accordingly, the issue no. 1 is decided in favour of the petitioners and against the respondents.
ISSUE NO. 2 (COMPENSATION):
9. So far as this issue is concerned, I shall be deciding the claim of each petitioner independently and my findings are as under : ISSUE NO. 2 IN PETITION NO. 270/10 :
10. The petitioner has claimed Rs.5,00,000/ as compensation on account of the injuries sustained by her in the accident. The Hon'ble Supreme Court of India in case titled "R D Hatangadi Vs Pest Control (India) Pvt Ltd" [AIR 1995 SC 755] has laid down principles that "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim Suit No. 270/10 & 553/10 Page 9 of 26 has actually incurred and which are capable of being calculated in terms of money whereas nonpecuniary damages are those which are not capable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant; (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and sufferings already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life". Let me now assess the award amount to be given to the petitioner under different heads. COMPENSATION FOR REIMBURSEMENT OF MEDICAL EXPENSES:
11. The petitioner has filed on record original medical bills, Ex. PW1/8 to Ex. PW1/46 and the total of these original medical bills pertaining to the treatment of the petitioner comes out to be Rs. Suit No. 270/10 & 553/10 Page 10 of 26 1,25,957/ which is rounded off to Rs. 1,26,000/. Therefore, I hereby award a sum of Rs. 1,26,000/ towards medical bills keeping in view the nature of injuries suffered by the petitioner in this accident. COMPENSATION FOR CONVEYANCE, SPECIAL DIET AND ATTENDANT CHARGES:
12. The Ld counsel for the petitioner has claimed compensation for the expenses incurred on conveyance, special diet and attendant charges for the early recovery of the petitioner. Though, there is no cogent evidence on record regarding the amount spent by the petitioner on conveyance, special diet and attendant charges, however, keeping in mind the fact that petitioner has sustained injuries and she must have visited the hospital number of times for her treatment and would also have spent some amount on special diet during treatment, I am of the opinion that a sum of Rs. 30,000/ as compensation on the above grounds will meet the ends of justice.
COMPENSATION FOR PAIN, SUFFERINGS AND LOSS OF AMENITIES OF LIFE:
13. Let me now assess the compensation to be paid to the petitioner for pain and sufferings. It is settled law that a particular amount can not be fixed for pain and sufferings for all the cases as it Suit No. 270/10 & 553/10 Page 11 of 26 varies from case to case. As per the medical record i.e. MLC bearing no. 052 dated 09.04.2010 issued from Eden Hospital, New Delhi, the doctor examining the petitioner after the accident had opined about the nature of injuries suffered by the petitioner to be grievous in nature. According to the Discharge Summary, Ex. PW1/1, issued from Sukhda Hospital, the petitioner was diagnosed with fracture of upper end of fibia (lateral condyle) involving its articular margins and tibial spine surface was depressed. The petitioner had been hospitalized at Eden Hospital as well as Sukhda Hospital. Judicial notice can also be taken on the fact that since the petitioner had suffered grievous injuries, she must have suffered acute pain and sufferings owing to the said injuries. She might have also consumed heavy dose of antibiotic etc. and also might have remained without movements of her body for a considerable period of time. In order to ascertain the compensation for pain and sufferings, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain V/s Jai Kishan (FAO No: 709/02 decided on 02.02.2007) wherein it was held that: "On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear Suit No. 270/10 & 553/10 Page 12 of 26 some objective corelation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment."
14. The learned counsel for the petitioner submits that the petitioner has also suffered permanent disability to the extent of 23% in relation to his both lower limbs due to this accident. In my considered opinion the said disability suffered by the petitioner will affect her efficiency and in fact her daytoday life has been adversely affected due to the injuries suffered by her in this accident and, hence the petitioner is entitled for loss of amenities/loss of expectation of life and for the inconvenience which the petitioner has to undergo for her remaining life due to his physical impairment suffered by her due to this accident. Keeping in view the guidelines passed by the Hon'ble Supreme Court as well as Hon'ble High Court of Delhi and in view of the nature of injuries suffered by the petitioner, I am of the opinion that a sum of Rs. 75,000/ as compensation for pain and sufferings of the petitioner which she has already suffered or is likely to suffer in her remaining life and Rs. 75,000/ as compensation for the loss of amenities i.e. inability to Suit No. 270/10 & 553/10 Page 13 of 26 walk/run in a normal manner, disfiguration, frustration and mental stress in life due to the injuries suffered by the petitioner in this accident will be sufficient to meet the ends of justice. COMPENSATION FOR PERMANENT DISABILITY & LOSS OF INCOME:
15. The Ld. counsel for the petitioner has submitted that the petitioner has suffered permanent disability to the extent of 23% and has placed reliance on the disability certificate bearing no F. 14/59/2069/PT.MMMH/2531 dated 10.03.2011, Ex.PW3/A issued by Pt Madan Mohan Malviya Hospital, New Delhi where the petitioner was examined, for ascertaining the extent of her permanent physical disability due to this accident, pursuant to the directions passed by this Tribunal vide order dated 19.01.2011. The said disability certificate was directly sent by Medical Superintendent/Chairman, Disability Board, Pt. Madan Mohan Malviya Hospital, New Delhi to this Tribunal and has not been challenged by either party. Let me now assess the compensation to which the petitioner is entitled to on the ground of permanent disability?
16. Admittedly, the disability certificate, Ex.PW3/A of petitioner refers to 23% disability in relation to both lower limbs of the petitioner. PW3, Dr. Joginder, Sr. Resident, Orthopedic, Pt Madan Suit No. 270/10 & 553/10 Page 14 of 26 Mohan Malviya Hospital, New Delhi has also deposed that the petitioner, Smt. Indra Vaide W/o Shri Ashok Kumar Vaide was having 23% permanent physical impairment in relation to her both lower limbs and that reassessment was advised after 02 years and that the condition of the petitioner is progressive. I am of the opinion that for arriving at just and reasonable compensation, this Tribunal has to examine the question as to what will be the affect of disability on the working capacity of the petitioner. The petitioner has claimed loss of income as she was unable to attend her business of Beauty Parlour in the name and style of M/s Tania Parlour at C26, DDA Market, East of Kailash, New Delhi110 065. However, during her cross examination PW1, Smt Indira Vaide had admitted that there are other employees working her Beauty Parlour and that she did not have any fixed time for going to her parlour shop and the parlour was opened in the morning by her employees. PW1, Smt Indira Vaide further admitted during her crossexamination on 12.12.2011 that she is having interest income from fixed deposits of about Rs. ten/ twelve lacs and the same is also reflected in her tax returns. PW1, Smt Indira Vaide has further admitted in her crossexamination on 12.12.2011 that at present she is having two full time employees and one part time employee and after deducting all her business Suit No. 270/10 & 553/10 Page 15 of 26 expenses she gets about Rs. 20,000/ to Rs. 25,000/ as business income. Keeping in view above discussions and the overall facts and circumstances of the present case and particularly keeping in view the nature of injuries suffered by the petitioner in this accident, I am of the opinion that a lumpsum amount of Rs. 50,000/ on account of loss of income due to the injuries suffered by her in this accident will be sufficient to meet the ends of justice.
17. In view of the above discussions, the total compensation to which the petitioner is entitled to now comes as under :
1. Compensation for medical expenses: Rs. 1,26,000/
2. Compensation for conveyance, special diet & attendant charges: Rs. 30,000/
3. Compensation for loss of income and permanent disability: Rs. 50,000/
4. Compensation for Pain, sufferings, disfuigration and loss of amenities of life: Rs.1,50,000/ Rs.3,56,000/ RELIEF IN PETITION NO. 270/10:
18. I award a sum of Rs. 3,56,000/ (Rupees Three Lac and Fifty Six Thousand Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any, from the date of filing the petition i.e. 28.05.2010 till the notice under Order 21 Rule 1 CPC is given by the insurance company, in favour of the Suit No. 270/10 & 553/10 Page 16 of 26 petitioner and against the respondents on account of their liability being joint and several.
ISSUE NO. 2 IN PETITION NO. 553/10 :
19. The petitioner has claimed Rs.3,00,000/ as compensation on account of the injuries sustained by her in the accident. Let me now assess the award amount to be given to the petitioner under different heads.
COMPENSATION FOR REIMBURSEMENT OF MEDICAL EXPENSES:
20. The petitioner has claimed to have spent more than Rs.
50,000/ on her medicine, treatment and physiotherapy. The petitioner has claimed in para 06 of her evidence affidavit that most of her medical bills have been misplaced. Two physiotherapy bills, Ex.PW2/1 and Ex.PW2/2, issued by Dr Devidnra K Mawai from The Medical Centre, E281, GKII, New Delhi have been filed on record but neither the said doctor nor any witness from The Medical Centre, E281, GKII, New Delhi has been got examined by the petitioner to prove the expenses incurred on physiotherapy. As per the medical record i.e. MLC bearing no. 053 issued from Eden Hospital (P) Ltd., the doctor examining the petitioner has opined about the nature of the injuries to be simple in nature. The Ld counsel for the petitioner Suit No. 270/10 & 553/10 Page 17 of 26 has contended that the bills of the medical expenses had been lost by the petitioner. During her crossexamination on 12.12.2011, the petitioner had deposed that she had lodged a complaint regarding loss of her medical prescriptions/ bills at PS Kotla Mubarakpur. The petitioner has filed the said complaint, Ex. PW2/R1 but candidly admitted during her crossexamination on 16.01.2012 that there is no mention regarding loss of medical bills in her complaint, Ex., PW2/R1 and that the said complaint pertained to loss of her PAN card and Cell phone. As the petitioner had suffered simple injuries in this accident and no doctor has been got examined to relate the physiotherapy sessions of the petitioner with the injuries suffered by her in this accident, the physiotherapy bills filed by the petitioner cannot be considered for reimbursement. However, cognizance can be taken of the fact that in such like cases, the public at large is generally ignorant and insensitive to take care of the medical bills etc. and are more concerned with their treatment. Therefore, I hereby award a sum of Rs. 5,000/ towards medical expenses of the petitioner keeping in view the nature of injuries suffered by her in this accident.
Suit No. 270/10 & 553/10 Page 18 of 26 COMPENSATION FOR CONVEYANCE, SPECIAL DIET AND ATTENDANT CHARGES:
21. The Ld counsel for the petitioner has claimed compensation for the expenses incurred on conveyance, special diet and attendant charges for the early recovery of the petitioner. As per the medical record i.e. MLC bearing no. 053 issued from Eden Hospital (P) Ltd., the doctor examining the petitioner has opined about the nature of the injuries to be simple in nature. Though, there is no cogent evidence on record regarding the amount spent by the petitioner on conveyance, special diet and attendant charges, however, keeping in mind the fact that petitioner has sustained simple injuries and she has visited the hospital for her treatment and would also have spent some amount on special diet during treatment, I am of the opinion that a sum of Rs.5,000/ as compensation on the above grounds will meet the ends of justice.
COMPENSATION FOR PAIN, SUFFERINGS AND LOSS OF AMENITIES OF LIFE:
22. Let me now assess the compensation to be paid to the petitioner for pain and sufferings. It is settled law that a particular amount can not be fixed for pain and sufferings for all the cases as it varies from case to case. As per the medical record i.e. MLC Suit No. 270/10 & 553/10 Page 19 of 26 bearing no. 053 issued from Eden Hospital (P) Ltd., the doctor examining the petitioner has opined about the nature of the injuries to be simple in nature. Judicial notice can also be taken on the fact that since the petitioner had suffered simple injuries, she must have suffered acute pain and sufferings owing to the said injuries. She might have also consumed heavy dose of antibiotic etc. and also might have remained without movements of her body for a considerable period of time. In order to ascertain the compensation for pain and sufferings, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain V/s Jai Kishan (FAO No:
709/02 decided on 02.02.2007) wherein it was held that: "On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objective corelation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment."
23. Keeping in view the said guidelines and keeping in view the nature of injuries suffered by the petitioner due to this accident, I am of the opinion that a sum of Rs. 10,000/ as compensation for Suit No. 270/10 & 553/10 Page 20 of 26 pain, sufferings and loss of amenities of life would be sufficient to meet the ends of justice.
COMPENSATION FOR LOSS OF INCOME:
24. The petitioner has claimed to be working as a beautician with M/s Tania Parlour and that she was earning Rs.7,000/ per month plus Rs.3,000/ per month as tip and that she was not able to attend her duties till 10.07.2010. However, during her cross examination PW2, Mrs Swaran Lata Pathania has admitted that salary was paid in cash but no salary records were maintained by her employer. She had deposed that an attendance register was maintained at M/s Tania Parlour but no such attendance register or leave record of the petitioner has been produced by the PW2, Smt Swaran Lata Pathania or even by PW1, Smt Indira Vaide. As per the medical record i.e. MLC bearing no. 053 issued from Eden Hospital (P) Ltd., the doctor examining the petitioner has opined about the nature of the injuries to be simple in nature. Keeping in view above discussions and the overall facts and circumstances of the present case and particularly keeping in view the nature of injuries suffered by the petitioner in this accident, I am of the opinion that a lumpsum amount of Rs. 5,000/ on account of loss of income due to the injuries suffered by her in this accident will be sufficient to Suit No. 270/10 & 553/10 Page 21 of 26 meet the ends of justice.
25. In view of the above discussions, the total compensation to which the petitioner is entitled to now comes as under :
1. Compensation for medical expenses: Rs. 5,000/
2. Compensation for conveyance, special diet & attendant charges: Rs. 5,000/
3. Compensation for loss of income : Rs. 5,000/
4. Compensation for Pain, sufferings and loss of amenities of life: Rs. 10,000/ Rs. 25,000/ RELIEF IN PETITION NO. 553/10:
26. I award a sum of Rs.25,000/ (Rupees Twenty Five Thousand Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any, from the date of filing the petition i.e. 27.09.2010 till the notice under Order 21 Rule 1 CPC is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several.
APPORTIONMENT OF LIABILITY:
27. The learned counsel for the R3/ Insurance Company has taken a plea that the Insurance company is not liable to pay the Suit No. 270/10 & 553/10 Page 22 of 26 compensation as there is breach of terms and conditions of Insurance policy as the R1/ driver of the offending vehicle was only having a learner's driving licence at the time of accident. A learner's driving licence is defined in Section 3 (9) of the Act to mean the licence issued by a competent Authority under Chapter II authorizing the person specified therein to drive as a "learner" a motor vehicle of any specified class. The Central Government has framed rules for grant of driving licence including the "learners driving licence". Under Rule 10 of the Central Motor Vehicle Rules, 1989, an application for the grant of "learners licence" is required to be made in Form II in a manner prescribed in the Rules. After a preliminary test is held by the Authority the licence under Rule 13 is issued in Form No 3. In terms of Form no. 3 a warning has been issued to the holder of the "learners driving licence" drawing their attention to Rule 3 of the Central Motor vehicle Rules, 1989 which prohibit such a driver from driving any motor vehicle unless he had besides him a person duly licenced to drive vehicle and in every case, the vehicle must carry "L"
plate both in the front and rear of the vehicle. It is thus clear that a person holding a "learners driving licence" cannot drive a vehicle without having besides him a person duly licenced to drive that type of vehicle".
Suit No. 270/10 & 553/10 Page 23 of 26
28. In the present case, Smt. Charanjeet Kaur, driver of the offending vehicle has got herself examined as R1W1 and Sh Ramnik Singh, owner of the offending vehicle has been got examined and Shri Kulwinder Singh has been got examined as R1W2. Shri Kulwinder Singh has categorically deposed that he was giving training of driving to Ms Charanjeet Kaur after verifying her Learners' driving licence and that he himself possessd a valid and effective driving licence, Ex. R1W2/X. Perusal of the statements of these witnesses clearly reveals that R1W2, Shri Kulwinder Singh was accompanying the R1, Smt. Charanjeet Kaur in the car at the time of the accident. Even the police has also cited Shri Kulwinder Singh as a witness at Sr. No. 8 in the list of witnesses in the Final Report U/s 173 CrPC filed by the police in respect of this accident (FIR No. 177/10, PS Amar Colony). Thus, the respondent no. 3/Insurance company had failed to establish any willful or deliberate breach of terms of the Insurance policy by the insured/ respondent no. 2 and accordingly, its plea of recovery rights is hereby rejected. The respondent No. 3, being the insurer of the offending vehicle at the time of accident, is jointly and severally liable with other respondents. Accordingly, the respondent No. 3 i.e. The New India Assurance Company Ltd. is directed to deposit the award amount Suit No. 270/10 & 553/10 Page 24 of 26 within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
29. In terms of the directions passed by the Hon'ble High Court of Delhi in its latest judgment titled as "Amod Kumar Ray & Ors Vs Raj Kumar Chauhan & Ors" {CM(M) 649/2011 decided on 25.05.2011}, the Insurance company is directed to deposit the award amount in the State Bank of India, District Courts Saket, New Delhi in the name of the petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the Insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
30. The copy of this award be given to the insurance company as well as to the petitioners free of cost. The petitioners shall approach the State Bank of India, District Court Saket, New Delhi for opening the account.
Suit No. 270/10 & 553/10 Page 25 of 26
31. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners.
32. Put up for compliance report to be filed by the Insurance company on 31.05.2012. The petitions stand allowed and disposed off. Accordingly, the inquiry files be consigned to record room after completion of necessary formalities.
Announced in the open court
on 30.03.2012 (PREM KUMAR BARTHWAL)
PO: MACT(SE01), SAKET COURT
NEW DELHI/30.03.2012
Suit No. 270/10 & 553/10 Page 26 of 26