Iffco Tokio General Insurance Co. Ltd. vs Rahul Kumar And Anr. on 30 January, 2019

[Cites 6, Cited by 2]

Delhi High Court

Iffco Tokio General Insurance Co. Ltd. vs Rahul Kumar And Anr. on 30 January, 2019

Equivalent citations: AIRONLINE 2019 DEL 144

1. The Appellant Insurance Company has challenged the impugned award in MACT No. 2991/16 dated 20.01.2018 passed by Sh. Raj Kumar Chauhan Presiding Officer, MACT South East District, Saket Courts Complex, New Delhi (henceforth referred to as the Tribunal) whereby the Claimant (Respondent No.1 herein) was awarded Rs. 1,77,52,296/- at 9% p.a. from the date of filing of petition till the date of its realization.

2. Brief facts stated are that on 31.01.2009 Claimant Rahul Kumar and Ashish Gupta Driver/Owner (Respondent No.2 herein) were going to Roorkee for attending a reception party in car bearing No. DL-

MAC.APP. 391/2018 Page 1 of 8

2FW-0333 being driven by Ashish Gupta in a rash and negligent manner. At about 10:30 PM when the car reached near road side Dhaba Mangla Check Post, Muzaffar Nagar, Uttar Pradesh, Driver Ashish Gupta hit a truck from behind, resultantly petitioner sustained grievous injuries and was rushed to Anand Hospital, Damodar Colony, Garh Road, Meerut. Claimant sustained fracture in his spinal cord besides other multiple injuries. He was treated for the injuries and remained admitted there from 01.02.2009 to 04.02.2009 and was thereafter referred to Trauma Centre, AIIMS, New Delhi, he remained admitted there from 05.02.2009 to 19.02.2009 where he was operated upon. Having sustained spinal cord fracture, claimant now is 100% paralysed as he has lost power and sensation below chest and is confined to bed and wheel chair. It is pertinent to note that no FIR was got registered in the instant case. However, DD No.7 dated 01.02.2009 was recorded at P.S. Khatoli (UP).

3. Thereafter, Claimant filed claim petition No. 234/12 on 15.05.2012 under Section 166 and 140 of Motor Vehicles Act, 1988 demanding a compensation of Rs. 1 Crore for negligent act of Ashish Gupta (driver cum owner) Respondent No.2 who caused 100% disability to Claimant.

4. Driver and Owner of the vehicle Sh. Ashish Gupta (Respondent No.2 herein) has filed a written statement denying the car was driven at high speed in rash and negligent manner. He stated head light glare from the opposite side disturbed his visibility which resulted in accident. There was no fault of his. Had the car being driven in high speed, he too would have been injured and the car too would have MAC.APP. 391/2018 Page 2 of 8 been damaged much more than what has existed.

5. Insurance Company (Appellant herein) filed written statement and pointed out no FIR till date is registered in present case. The present Claim petition is filed in collusion with the driver.

6. No replication to the written statement of Driver/Owner and Insurance Company was filed by the claimant.

7. The parties led their evidence in support of their respective pleadings. Claimant, Rahul Kumar in support of his claim examined himself as PW1 and filed his affidavit Ex.PW1/A as Examination-in- Chief. He stated while he and the driver Ashish Gupta were going together to Roorkee for attending reception party in car bearing No. DL-2FW-0333 driven by Ashish Gupta himself at high speed in zig zag manner. At about 10:30 PM when they reached near road side Dhaba Mangla Check Post, Muzaffar Nagar, Uttar Pradesh, Driver Ashish Gupta hit a truck from behind. Due to the forceful hit, Claimant sustained grievous injuries. Claimant sustained fracture in his spinal cord besides other multiple injuries. Claimant was taken to Anand Hospital, Damodar Colony, Garh Road, Meerut where he remained admitted from 01.02.2009 to 04.02.2009, thereafter, he was referred to Trauma Centre, AIIMS, New Delhi and remained admitted from 05.02.2009 to 19.02.2009. Having sustained spinal cord fracture, claimant is now 100% paralysed as he has lost power and sensation below chest and is confined to bed and wheel chair and is facing many problems related to body on a daily basis. He gave Disability Certificate Ex.PW1/2, medical treatment records and medical bills Ex.PW1/3(Colly.), certificate/charges of physiotherapist Ex.PW1/4, MAC.APP. 391/2018 Page 3 of 8 bills of attendant Ex.PW1/5(Colly.), copy of certificates of MBA and other educational degrees, appointment letter and pay slips Ex.PW1/6(Colly.), quotation of electric wheel chair Ex.PW1/7. The claimant has examined Dr. Shyam Sunder Sharma, Physiotherapist as PW2, Dr. Sumalatha, Senior Resident, AIIMS, New Delhi as PW3, Dr. Akash Mishra, Senior Resident, AIIMS, New Delhi as PW3(4th petitioner witness) to prove medical bills and medical records. Claimant has further examined Sh. Praveen Arya as PW4, Sh. Nasir Khan as PW5, Sh. Vivek Kumar Pandey as PW6, Sh. Gunjan Triar as PW7, Sh. Ashwary Rastogi as PW8 and Sh. Ajay Kumar Sharma as PW9 to prove the salary and future loss of salary.

8. Driver/Owner Ashish Gupta has not preferred to examine anyone. The Insurance Company has examined Sh. Pallaw Kumar, Senior Marketing Executive, Iffco Tokio Insurance Services Ltd. as R2W1 who stated that the car was insured in the name of Driver/Owner Ashish Gupta from 17.05.2008 to 16.05.2009 vide policy no. 39019612. However, Sh. Pallaw Kumar stated that there is violation of the terms and conditions of the policy i.e. vehicle was being driven by the driver without having a valid and effective driving license on the date of accident.

9. Subsequently, arguments of the parties were heard, impugned award in MACT No. 2991/16 dated 20.01.2018 was passed awarding total compensation amount of Rs. 1,77,52,296/- with interest rate at 9% p.a. till the amount is realized. The impugned order was passed after remanding back the MAC. APP. 827/2015 and MAC. APP. 356/2016 to the Tribunal to lead additional evidence. Aggrieved from MAC.APP. 391/2018 Page 4 of 8 the said award, Insurance Company has filed instant appeal.

10. Learned counsel for the Appellant insurance company has submitted that the Tribunal has committed an error in allowing the claim as the award is contrary to the law and facts and merely based on presumptions, surmises and conjectures. He further pointed out that it is a well settled principle of law that the proof of negligence is sine qua non for maintainability of claim petition under Section 166 of Motor Vehicles Act, 1988. Further, no FIR was got registered which proves only the factum of accident and not of the negligence on part of the car driver. The claim petition is a result of collusion between Claimant and Driver/Owner and the same be dismissed. He further stated that MLC in the instant case states that the accident involves a truck which has hit the car. Therefore, the accident is caused by the negligence of that truck and not the car. Further, the award by tribunal is exaggerated. He prayed that the impugned award be set aside.

11. Per contra, Claimant/Respondent No.1 submitted that award dated 20.01.2018 is based on the facts and evidence led by the parties and the appeal deserves to be dismissed.

12. The contention of the learned counsel for Appellant Insurance Company that the claim has been filed in collusion with the driver does not seems to be correct. The claim petition was filed on 15.05.2012. The claimant has claimed compensation from Driver/Owner alongwith the Insurance Company. The claim petition is directed against Driver/Owner Respondent No.2 on the basis of his negligent driving, Claimant has examined himself as PW1 and has specifically stated in his Affidavit Ex.PW1/A that owner was driving MAC.APP. 391/2018 Page 5 of 8 the car bearing No. DL-2FW-0333 in a fast, rash and negligent manner soon before the accident took place. The Appellant nowhere specifically pointed out the manner in which the claimant colluded with the Driver/Owner and no evidence is led on this material point, the statement of the Claimant remained unrebutted.

13. So far, contention of the Appellant that no FIR in the instant case has been registered loses its significance in presence of DD Entry No.7 dated 01.02.2009 at PS Khatoli (UP). Moreover, negligent act of the driver ipso facto could be determined on the basis of available evidence on record. It is not disputed by the Driver/Owner and by the Insurance Company that the claimant was not travelling with Driver in his car bearing No. DL-2FW-0333 and said vehicle was not driven by the Driver/Owner Respondent. No.2 in their respective written statements. Similarly, Insurance Company also did not deny that the claimant was not travelling in the vehicle at Dhaba Mangla Check Post, Muzaffar Nagar, Uttar Pradesh. There is no suggestion put to the claimant in cross examination that the injured claimant was driving the said car on the date of the incident. The affidavit Ex.PW1/A of Claimant shows that the car was driven at a very high speed, rashly and negligently by the Driver/Owner. This statement on record remains unrebutted as the Driver/Owner did not examine himself to rebut the evidence of the Claimant. Further, statement of the Claimant is corroborated with the MLC and Treatment Record Ex.PW1/3(Colly.) and Disability Certificate Ex.PW1/2 which itself are ample admissible evidence on record and registration of the FIR and Police investigation is merely a formality. Reliance is placed on R.P. MAC.APP. 391/2018 Page 6 of 8 Gautam v. R.N.M. Singh & Anr. AIR 2008 MP 68 and on Anbazhagan & Ors. v. V. Shankar & Anr. 2014 ACJ 469.

14. The contention of learned counsel of Appellant that awarded amount is excessive in the impugned award also does not seems to be correct as the quantum of compensation for loss of future earning capacity is based on the evidence which was proved by the batch mates of the Claimant, there seems no deviance in calculating the average loss of income. Further, contention of Insurance Company that only a token or nominal amount be awarded under the head of "loss of amenities or loss of expectation of life" as per Raj Kumar v. Ajay Kumar 2011 (1) SCC 343 is misplaced as the amount given under such head in the instant case is just 5.6% of the Total Compensation amount which seems just and nominal. The age of Claimant being 32 years at the time of accident and additional 50% salary is rightly added to the compensation, reliance is placed on National Insurance Company Ltd. v. Pranay Sethi (2017) 16 SCC

680.

15. The contention of the learned counsel of Appellant as regards to non validity of the driving license, no witness has been examined on this point to prove that Driver Ashish Gupta was not holding valid license. Mere argument that driver was not holding valid license on date of incident is neither here nor there without proving otherwise, particularly when he is the insurer and his name is appearing on insurance policy. Reliance placed on this court judgment in Oriental Insurance Co. Ltd. v. Sonia (2009) 158 DLT 111.

16. As such, I find no infirmity with the impugned award passed by MAC.APP. 391/2018 Page 7 of 8 the Tribunal. Thus, the present appeal and application is accordingly dismissed and impugned award is upheld. The Appellant is directed to make the payment of the balance awarded amount with the interest accrued to the claimant as per the direction of Tribunal.

17. Let one copy of this judgment be sent to the concerned Court. No order as to costs. LCR File be sent back.

I.S.MEHTA (JUDGE) JANUARY 30, 2019 MAC.APP. 391/2018 Page 8 of 8

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