Delhi District Court
Meera Arora vs . Apoorva Goel on 15 November, 2017
Meera Arora vs. Apoorva Goel
IN THE COURT OF SHRI SAMEER BAJPAI : PRESIDING OFFICER : MACT
SOUTH DISTT. SAKET COURTS : NEW DELHI
Suit No. : 75423/16
Meera Arora
W/o Sh. Om Prakash
R/o 547, Sector30,
Faridabad, Haryana
...... Petitioner
Versus
1. Apoorv Goel
S/o Sh. R A Goel
R/o 1, Sukhdev Vihar,
1st Floor, New Delhi - 25 (Driver of Car)
2. Kishore Kumar
S/o Sh. Binodas
R/o Vill. Khar, P.O. Bhiwani Pur,
P.S. Kamaria, Distt. Madhey Pura,
Bihar (Driver of TSR)
3. Chetna Vinimay Pvt. Ltd.
H. No.1, Sukhdev Vihar,
New Delhi (Owner of Car)
4. Sanjay Kumar
S/o Sh. Vinod Sharma
R/o JBlock, 469,
Shakur Pur, J. J. Colony, Delhi (Owner of TSR)
5. Bajaj Allianz General Insurance Co. Ltd.
GE Plaza, Airport Road,
Yerwada, Pune - 411 003 (Insurer of Car)
6. IFFCO Tokio General Ins. Co. Ltd.
IFFCO Sadan, C1, Distt. Centre,
Saket, New Delhi (Insurer of TSR)
......Respondents
Suit No. : 75423/16 Page No. 1 of 8
Meera Arora vs. Apoorva Goel Date of Institution : 17.02.2010 Date of reserving of judgment/order : 31.10.2017 Date of pronouncement : 15.11.2017 J U D G M E N T :
1. By this order I shall dispose of the claim petition filed by the petitioner for the injuries sustained by her in a road accident on 13.12.2009 involving vehicle bearing no. DL 3C BM 1039 and DL 1R F 4686 by the respondent no.1 and 2, owned by respondent no.3 and 4 and insured with respondent no.5 and 6.
2. Respondent no.1 and 3 have filed joint written statement stating that there is no cause of action for filing the present claim petition by the claimant against them because as per her own statement, it was the driver and owner of respondent no.2 and 4 who are responsible for causing the accident by driving the TSR rashly, negligently and on wrong side. They further stated that their vehicle was duly insured with respondent no.5 for the period from 29.05.2009 to 28.05.2010.
3. Respondent no.2 and 4 have also filed their joint written statement denying the averments made by the petitioner.
4. Respondent no.5 and 6 filed their written statement denying the averments made by the petitioner.
5. Following issues were framed vide order dated 10.01.2011 :
1. Whether injured suffered injuries in an accident which took place on 13.12.2009 involving vehicle bearing no. DL 3C BM 1039 and Suit No. : 75423/16 Page No. 2 of 8 Meera Arora vs. Apoorva Goel DL 1R F 4686 due to rash and negligent driving of respondent no.1 and 2, owned by respondent no.3 and 4 and insured with respondent no.5 and 6?.... OPP.
2. Whether the petitioner is entitled to compensation? If so, to what amount and against which of the respondents?
3. Relief.
6. Petitioner examined herself as PW1 and tendered in evidence her affidavit Ex.PW1/A and relied upon the documents Ex.PW1/1 to Ex.PW1/3.
7. Respondents did not examine any witness.
8. I have heard arguments and perused the record. My issuewise finding is as under :I S S U E No. 1
9. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving by the driver. In a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. Though it is an admitted legal position that the negligence on part of the driver with respect to the use of vehicle needs to be established but the same is to be established on the principles of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III (2015) ACC 435 Delhi.
PW1 has stated that on the unfortunate day of 13.12.2009 at Suit No. : 75423/16 Page No. 3 of 8 Meera Arora vs. Apoorva Goel about 2.45 PM she was going alongwith her sister Meera Arora towards Bhagwan Shri Laxmi Dham, S85, Greater Kailash PartII, New Delhi for taking medicines and she hired a TSR. When they were coming back from Greater Kailash to Kanhaiya Nagar, the driver of the TSR bearing no. DL 1R F 4686 started driving on the wrong side towards Panchsheel, then all of a sudden, a car bearing no. DL 3C BM 1039 (car) which was being driven by its driver in a rash and negligent manner came and struck the TSR. As a result of the forceful impact she suffered multiple injuries. She was taken to JPN Apex Trauma Center and later on got treatment in Pune where she remained admitted w.e.f. 02.04.10 to 25.02.11 and later on in various hospitals. She remained in Orthonova Hospital w.e.f. 07.06.2011 to 15.06.2011 where her surgery was done.
During crossexamination by the ld. counsel for respondents no.5 and 6, the insurance companies of Audi Car and TSR, she denied the suggestion that the accident took place due to sole and negligent driving by the driver of TSR in which she was travelling because the driver of TSR was driving his TSR on wrong side. She denied the suggestion that the car was driven by the driver in a correct manner. She admitted that the driver of the TSR blew the horn. She further admitted that there is one way road and most of the vehicles were going on the TSR side. She further admitted that the accident was caused due to rash and negligent driving by the driver of the car. She admitted that the driver of the car hit the TSR willingly.
Now, comes the question as to by whose negligence the accident happened. In her petition and in evidence the petitioner has stated that the driver of TSR bearing no. DL 1 R F 4686 started driving on wrong side towards Panchsheel and all of a sudden the offending vehicle i.e. Audi car Suit No. : 75423/16 Page No. 4 of 8 Meera Arora vs. Apoorva Goel bearing no. DL 3C BM 1039 being driven by its driver in a rash and negligent manner and at high speed struck the TSR. The site plan as filed by the I.O alongwith the DAR depites the same scene as has been narrated by the petitioner. In the site plan the TSR has been shown coming on the wrong side alongwith the central verge and the Audi car was hit the TSR being driven by its driver at his correct side. Under these facts, to my mind only the TSR driver is negligent in driving his TSR. Had the TSR driver not driven the TSR on the wrong side the accident would have never happened. The driver of the Audi car was supposed to drive his car where he infact was driving it i.e. on the correct side of the road which was divided by a permanent divider. The driver of the Audi car was not expected to keep his eyes wide open and be constantly so vigilant in the expectation of any such nuisance as was created by the TSR driver by driving his TSR on the wrong side. Although the injured has stated that the driver of the Audi car was driving his car in fast speed and in a rash and negligent manner but only by her statement negligence cannot be attributed to the driver of the Audi car and the Tribunal has to consider all the facts and circumstances to determine the negligence. It is thus concluded that the accident happened due to the negligence of the driver of the TSR only i.e. respondent no.2. Hence respondent no.2 Kishore Kumar is primarily liable to compensate the petitioner. Documents filed on record show that the TSR was owned by respondent no.4 and it was insured with respondent no.6.
Therefore, this issue is decided in favour of the petitioner and against the respondents.
Suit No. : 75423/16 Page No. 5 of 8Meera Arora vs. Apoorva Goel I S S U E No. 2 Compensation :
10. Medical Bills : The petitioner has filed on record original medical bills of Rs.7,630/. Therefore, I award Rs. 7,700/ to the petitioner towards medical expenses.
11. Pain & Sufferings and Enjoyment of life : As per the discharge summary the petitioner was diagnosed with road traffic accident with polytrauma with FUC. She remained hospitalised from 13.12.2009 to 18.12.2009 in Sarvodaya Hospital. Having regard to the injuries and treatment of the petitioner, I award Rs. 50,000/ to her towards pain and sufferings and enjoyment of life.
12. Special Diet, Conveyance & Attendant charges : The petitioner has not filed on record any bill pertaining to special diet, conveyance and attendant charges. However, looking into the injuries of the petitioner I award Rs. 35,000/ to the petitioner towards special diet, conveyance and attendant charges.
13. Loss of Leaves : The petitioner has stated that at the time of accident she was working as Head Clerk with Provident Fund Department and was getting Rs. 25,000/ p.m. As per leave record she remained on leave from 14.12.2009 to 27.01.2010. As per the salary slip her gross salary was Rs. 32,595/ which include Rs. 2,032/ as transport allowance. This amount needs to be deducted from the gross salary. After deduction, the net salary of the petitioner for calculating loss of income comes to Rs. 30,563/. Taking a period of 43 days as leave period and the salary of Suit No. : 75423/16 Page No. 6 of 8 Meera Arora vs. Apoorva Goel the petitioner as Rs. 30,563/ p.m., the loss of income is calculated as (30,563 / 30 x 43) = Rs. 43,807/ which is rounded off to Rs. 44,000/. I therefore, award Rs. 44,000/ to the petitioner towards loss of income.
14. Thus, the total compensation awarded in favour of the petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 7,700/
PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 50,000/
SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 35,000/
LOSS OF INCOME : Rs. 44,000/
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: Rs. 1,36,700/
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L I A B I L I T Y
15. As the offending vehicle was being driven by respondent no. 2, primary liability to compensate the petitioner is of respondent no. 2. Since the offending vehicle was owned by respondent no.4, he is vicariously liable to compensate the petitioner. It has come on record that the vehicle was insured with respondent no.6, so it is contractually liable to compensate the petitioner.
R E L I E F
16. In view of my findings, I award Rs. 1,36,700/ (Rs. One Lakh Thirty Six Thousand Seven Hundred only) to the petitioner as compensation alongwith interest @ 9% per annum from the date of filing the petition till its realisation (except for the period from 28.05.2012 to 28.02.2013 and 12.11.2013 to 27.01.2014).
Petitioner has been examined by the Tribunal in terms of order dated 16.12.16 passed by the Hon'ble High Court in FAO 842/2003 titled as Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors.
Suit No. : 75423/16 Page No. 7 of 8Meera Arora vs. Apoorva Goel She stated that if the award is passed in her favour, some amount be released to her and some amount may be kept in fixed deposit.
DIRECTIONS FOR THE RESPONDENT NO. 617. The respondent no.6 is directed to deposit the awarded amount in favour of the petitioner directly in the State Bank of India, Saket Courts branch within a period of 30 days from today, failing which the respondent no.6 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
18. The Respondent no.6 shall intimate the claimant/petitioner about its having deposited the cheque in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate her to withdraw the same.
19. Copy of this Award / Judgment be given to the parties for necessary compliance.
20. The case is now fixed for compliance by the respondent no.3/insurance company for 15.12.2017.
Announced in the Open Court
on 15th day of November, 2017 (SAMEER BAJPAI)
Presiding Officer : MACT (S)
Saket Courts New Delhi
Suit No. : 75423/16 Page No. 8 of 8