Delhi District Court
Mact No.103/09; Matlub Ahmed vs . Manoj Singh on 9 August, 2010
MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH
1
IN THE COURT OF SH. B. S. CHUMBAK, ADDITIONAL SESSIONS
JUDGE:DLEHI
Petition No. :103/09
Date of filing of the petition :18.07.07
Date of assignment to this court :08.10.09
Date on which judgment was reserved :07.07.10
Date of award :09.08.10
Matlub Ahmed
s/o Sh. Abdul Vahid
R/o H.No. 31, Mohalla Mahajanan,
Village Jhalu, Bijnor (U.P) .... Petitioner
Versus
1. Sh. Manoj Singh
s/o Sh. Hardev
R/o D-39, Phase-II,
Nangloi, Delhi
2. Sh. Mahavir Bhardwaj
S/o late Sh. R. Kishan
R/o 43A, Tikri Kalan Village,
Delhi
3. The Oriental Insurance Co. Ltd.
RO-I, 88, Janpath, New Delhi ...Respondents
AWARD
1. Petitioner Matlub Ahmed s/o Sh. Abdul Vahid r/o house no. 31, Mohalla Mahajanan-Jhalu, Bijnor, U.P filed a petition u/s 166 & 140 of the Motor Page1/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 2 Vehicle Act (hereinafter referred to as Act of 1988) against Sh. Manoj Singh s/o Sh. Hardev r/o D-39, Phase II Nangloi, Delhi, driver (hereinafter referred to as respondent no.1), Sh. Mahavir Bhardwaj s/o late Sh. R. Kishan r/o 43A, Tikri Kalan village, Delhi, owner (hereinafter referred to as respondent no.2) and The Oriental Insurance Co. Ltd. RO-I, 88, Janpath New Delhi, insurer (hereinafter referred to as respondent no.3) for seeking grant of compensation of Rs.10,00,000/- with interest on account of injuries sustained by the petitioner due to accident.
2. The brief facts mentioned in the petition are that on 09.04.07 petitioner was waiting for a bus at Khajuri Khas bus stand for going to Wazirabad village in the mean time at about 9:30 a.m a bus bearing no. DL-IP-B-1795 reached at the bus stand and when petitioner was just at the verge of boarding the said bus R1, driver of the vehicle started moving the bus without taking care of the fact that petitioner on the foot board of the bus and had not entered into the bus. As a result of this negligent act of the respondent no.1 petitioner fell down on the road and received serious injuries all over his body. Respondent no.1 stepped down from the bus and disclosed his identity but after seeing the serious condition of the petitioner he fled away with the offending vehicle from Page2/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 3 the site of the accident. It is further averred that petitioner was removed to Trauma Center, L.N.J.P in an Ambulance. A case u/s 279/337 IPC was registered against respondent no.1 at PS Khajuri Khas vide FIR no. 163/07. It is further averred that father of petitioner has incurred an amount of Rs.50,000/- on his treatment and is still under treatment. It is further averred that petitioner suffered permanent disability on account of injuries suffered by him in the accident . It is further averred that that accident had happened due to rash and negligent driving of the aforesaid vehicle by respondent no.1 and respondent nos 2 and 3 also liable to make the payment of compensation to the petitioner. Respondent nos. 1 and 2 already proceeded exparte, therefore, petition was contested only by respondent no.3.
3. Petition was contested only by respondent no.3 The Oriental Insurance Co. Ltd. taking therein the pleas petition discloses no cause of action against respondent no.3 hence deserves outright rejection and respondent reserves the right to file application u/s 170 of Motor Vehicle Act. It is also alleged that in case it is found that respondent no.1 (driver) of the offending vehicle bearing no. DL-1P-B-1795 was not having a valid and effective driving license at the time of alleged accident, the answering respondent shall not be liable to pay Page3/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 4 the compensation to the petitioner. It is admitted that vehicle no. DL-1PB-1795 is insured with respondent no.3 vide policy no. 272401/31/2007/2118 from 30.7.06 to 29.7.07 in the name of Mahavir Bhardwaj s/o Late Sh. R. Kishan r/o 43A, Tikri Kalan village, Delhi. It is denied that petitioner is entitled to any compensation of Rs.10,00,000/-.
4. On the basis of pleadings from both the sides following issues were framed on 02.02.08:
i) Whether the petitioner proves that he suffered injuries in the road accident dated 09.04.07, within the jurisdiction of PS Khajuri Khas, Delhi due to rash and negligent driving of vehicle number DL-1P-B-1795 by the respondent no.1?
ii) Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
Iii) Relief.
5. After framing of issues case was fixed for petitioner's evidence. During the course of petitioner's evidence Matlub Ahmed (petitioner) appeared as PW1 and tendered his affidavit as Ex. PW1/1 and deposed that on 09.04.07 he was Page4/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 5 waiting for a bus at Khajuri Khas bus stand for going towards Wazirabad village in the mean time at about 9:30 a.m an offending vehicle bearing no. DL-IP-B-1795 reached at the spot and when he just stepped on the foot board of the bus and at the verge of entering into the bus, the respondent no.1 started moving the bus in a rash and negligent manner and at a very high speed and with a jerk. As a result of this unmindful act of the respondent no.1, he fell down on the road and received serious injuries all over his body. Respondent no.1 stepped down from the bus and disclosed his identity but after seeing the serious condition of the petitioner he fled away with the offending vehicle from the site of the accident. He further deposed that petitioner was removed to L.N.J.P in a precarious condition where he was admitted from 9.4.07 and discharged on 14.4.07. His discharged slip is marked A. He further deposed that he incurred a sum of Rs.1,00,000/- for medicines and about Rs.20,000/- on special diet and Rs.15,000/- on conveyance. Medical treatment records, bills and driving license are Ex. PW1/1 to PW1/15 and election I card is marked A. He further deposed that he is doing private service and was earning Rs.5000/- per month and he is still under treatment and have also suffered permanent disability on account of injuries suffered by him in the accident . He further deposed that he was not Page5/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 6 able to do the work for about twelve months and at the time of accident he was able bodied but because of said accident he has become disabled person and cannot lead his life like a normal person because of the injuries sustained by him in the accident caused due to rash, negligent and high speed driving of respondent no.1. He further deposed that said accident was caused due to rash and negligent driving of respondent no.1 and during cross examination he admitted that he do not have any other bills except the bills filed on record. He denied the suggestion that he had spent Rs. 1Lac on medicines and Rs.20,000/- on special diet and Rs.15,000/- on conveyance. He also denied the suggestion that he do not have any disability certificate. He admitted that he was boarding the bus from the front gate. He denied the suggestion that he caught the bus while running of the bus i.e why he fallen on the road and sustained injuries by his own negligence and he suffered financial loss due to the injuries received in this accident. Thereafter petitioner's evidence was closed and case was fixed for respondent's evidence.
6. Sh. Sunil Kumar Saini , Asstt. Legal Department Oriental Insurance Co. Ltd. Appeared as R3W1 and has brought the certified copy of the insurance policy relating to vehicle no. DL-1PB-1705 for the period 30.7.06 to 29.7.07 issued in Page6/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 7 the name of Mahavir Bhardwaj, same is Ex. R3W1/A (running into four pages). He has also brought the certified copy charge sheet filed by the police in case FIR No. 163/07 P.S K. Khas, u/sec. 279/338 IPC against accused Manoj Singh and as per the same accused Manoj was challaned u/sec. 3/181 M.V Act, which Ex.R3W1/B, mentioned at point A ( running into three pages). He further deposed that The company advocate Uppender Kumar sent notices u/o 12 rule 8 of CPC to driver Manoj Singh, owner Mahavir Bhardwaj for producing the D/L, Permit and original insurance policy. These notices were sent to both driver and owner through Regd. AD as well as UPC but despite services, no reply has been received by the company or advocate till today. Notices are Ex.R3W1/C and D and receipts of Regd. AD are Ex.R3W1/E, F and receipt of UPC is Ex.R3W1/G. He also deposed that driver was not having the driving license, therefore, it is clear cut violation of the terms and conditions of the policy. Thereafter respondent's evidence was closed and case was fixed for final arguments.
7. After hearing arguments on behalf of Ld. Counsel for petitioner and on behalf of respondent no.3.
8. My findings on the issues are as follows.
i) Whether the petitioner proves that he suffered injuries in the road Page7/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 8 accident dated 09.04.07, within the jurisdiction of PS Khajuri Khas, Delhi due to rash and negligent driving of vehicle number DL-1P-B-1795 by the respondent no.1?
On this issue injured appeared as PW 1 and filed his affidavit Ex. PW 1/1 wherein he specifically deposed that on 09.04.2007 he was waiting for a bus at bus stand Khajori Khas for going to Wazirabad village. In the meantime at about 9.30am a bus bearing no. DL 1P-B-1795 reached at the bus stand and when he was at the verge of boarding the bus R1(driver of the offending vehicle) started moving the bus with a fast speed and also in a rash and negligent manner without considering the fact that he was at the verge entering into the bus. Due to that he fell down and received injuries. He further deposed that he was taken to LNJP hospital and in corroboration to his testimony he brought on record the proof of admission and of his discharge from the said hospital vide Ex. PW 1/2 to Ex. PW 1 / 4. On perusal of discharge slip Ex. PW 1/ 4 clearly shows that after receiving the injuries in the said accident, petitioner received compound Gd III fracture d/l (L) ankle with compound neck of talus. On perusal of the medical record , it is also proved by document Ex. PW 1 / 2 that the petitioner was taken to hospital on 09.04.2007 and was also medically examined and received treatment. The Page8/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 9 factum of registration of the case u/s 279/337 IPC at PS Khajori Khas vide FIR no. 163/07 is also proved as copy of FIR duly attested by SHO, PS Khajori Khas is placed on record and said FIR was registered on the basis of statement of petitioner/injured. Proof of taking in possession the RC of the offending vehicle, site plan showing the place of incident, mechanically inspection of both the vehicles are duly brought on record. All these documents corroborate the testimony of the PW's deposed before the court as well as mentioned in the affidavit Ex. PW 1/1. The factum of having a valid driving licence and proof of age showing therein that he was 20 years old as on 01.01.2007 is also brought on record. In such circumstances, it is established that on 09.04.2007 the petitioner while boarding the bus and due to the sudden driving of the impugned bus by R1, petitioner fell down and received serious injuries. It is also proved that the bus was being driven by R1(driver) and R2 (owner) of the vehicle. The factum of ownership is further corroborated that the said vehicle was released on superdari, on furnishing superdginama Rs. 7,00,000/- by R2, (owner). In view of the above said discussion I am of the considered view that petitioner succeeded in proving the factum of causing accident by rash and negligent driving by R1 and received injuries due to said accident. Accordingly I decided this issue in Page9/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 10 favour of the petitioner against the respondents.
ISSUE NO.2
ii) Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
Arguments on behalf of both the parties heard. Ld. Counsel on behalf of R3 (Oriental Insurance Co. Ltd. ) submitted that R1(driver) and R2 (owner) had already been proceeded exparte. It is further pleaded that R1(driver) was not having a valid driving licence at the time of driving the offending vehicle, therefore, R3 (Oriental Insurance Co. Ltd) shall not be liable to make the payment of any sort of compensation. In support of his contention, he further submitted that in the report u/s 173 Cr. P. C. filed by the IO after completion of investigation of this case, it is clearly mentioned that challan for the offence u/s 279/337 IPC alongwith section 3/181 M. V. Act was filed whereby it is established that R1 (driver) and R2 (owner) failed to brought on record the valid driving licence which raises a presumption in favour of R3 (Oriental Insurance Co. Ltd.) and against the R1(driver) and R2 (owner). It is further submitted that the Notice u/o 12 Rule 8 of C. P. C. whereby directing that R1 (driver) and R2 (owner) to produce the driving licence, permit and insurance Page10/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 11 policy in the court and despite of service of notice they failed to brought all these documents on record. Copy of speed post receipt, UPC are Ex. R3W1/F and R3W1/G. Copy of Legal notice U/o 12 Rule 8 of C.P. C is Ex. R3W1/C and R3W1/D. Certified copy of the report u/s 173 Cr. P. C mentioning therein that the challan is filed u/s 279/338 IPC R/w section 3/181 M. V. Act is also brought on record which are Ex. R3W/B. All these documents are sufficient to prove that R1(driver) was not having the valid driving licence at the time of driving the offending vehicle.
9. Ld. counsel on behalf of respondent no. 3 also placed his reliance in a decided case cited as " Sardari & Ors. Vs. Sushil Kumar & Ors. II(2008) ACC 426 (SC)" wherein it is observed as under:
"Although, in terms of a contract of insurance, which is in the realm of private law domain having regard to the object for which Sections 147 and 149 of the Act had been enacted, the social justice doctrine as envisaged in the preamble of the Constitution of India has been given due importance. The Act, however, itself provides for the cases where the Insurance Company can avoid its liability. Avoidance of such liability would largely depend upon violation of the conditions of contract of insurance. Where the breach of conditions of contract is ex facie apparent from the records, the Court will not fasten the liability on the Page11/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 12 Insurance Company. In certain situations, however, the Court while fastening the liability on the owner of the vehicle may direct the Insurance Company to pay to the claimants the awarded amount with liberty to it to; recover the same from the owner.
The concurrent finding of fact herein is that Sushil Kumar never held a licence. The owner of the vehicle has a statutory obligation to see that the driver of the vehicle whom he authorised to drive the same holds a valid licence. Here again, a visible distinction may be noticed, viz. Where the licence is fake and a case where the licence has expired, although initially when the driver was appointed, he had a valid licence.
The question came up for consideration before this court in United India Insurance Co. Ltd. Vs. Gian Chand and Others, II (1997) ACC 437 (SC)=(1997) 7 SCC 558, wherein it was held Under the circumstances, when the insured had handed over the vehicle for being driven by an unlicensed driver, the Insurance Company would get exonerated from its liability to meet the claims of the third party who might have suffered on account of vehicular accident caused by such unlicensed driver........."
10. Since R1 (driver) and R2 (owner) had already proceeded exparte and R3 (Oriental Insurance Co. Ltd.) produced corroborative evidence to prove that the driver of the offending vehicle was not having a valid driving lience at the Page12/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 13 time of causing this accident. I am of the considered view that it is a fit case in which R3 (Oriental Insurance Co. ) cannot be held liable to make the payment of compensation to the petitioner. Accordingly, R3 (Oriental Insurance Co.) is exonerated for any sort of compensation. However, R1 (driver) and R2 ( driver and owner) of the offending vehicle are liable to make the payment of compensation to the petitioner.
11. On the point of quantum of amount of compensation Ld. Counsel on behalf of the petitioner submitted that factum of causing accident due to rash and negligent driving by R1 is duly proved, nature of injuries opined by the doctor is "grievous" and on the prima facie view of the injuries received by the petitioner it is established that after receiving the injuries of such nature the petitioner has become unable to perform the day to day activities in the same manner as prior to his accident. The Petitioner only filed the medical bills to the tune of Rs. 4730/- which are Ex. PW 1 / 4 to PW 1/14 , but keeping in view the nature of injuries received by the petitioner coupled with the fact that he was operated under general anesthesia and also in a private hospital I am of the considered view that due to serious injuries the petitioner could not collect the proof of expenses incurred by him. However, in view of the nature of Page13/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 14 injuries received by him the reasonable expenses incurred by him might be not less then Rs. 50,000/-. Therefore, in the absence of any documents/bill towards medical expenses I am of the view that petitioner has become entitled of Rs.50,000/-. The petitioner also suffered mental pain and agony incurred expenses towards conveyance and better diet. The petitioner also become unable to perform day to day activities approximately for six months and has become entitled for seeking compensation for about six months of his salary, at the rate of minimum wages in the absence of any prove of salary produced by him. In view of the evidence adduced by the petitioner and taking in view the nature of injuries received by the petitioner I am of the view that the petitioner has become entitled to become compensation as follows :
Sl.No. On Account of Amount (Rs.)
Expenses incurred towards Rs.50,000/-
1 treatment.
2 Expenses towards conveyance Rs.12,000/-
Expenses towards mental pain and Rs.40,000/-
3 agony
4 Expenses towards better diet. Rs.10,000/-
In lieu of loss incurred for six Rs. 20,820/-
5 months salary
Total Rs.1,32,820/-
Page14/9
MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH
15
12. RELIEF
Accordingly, it is directed that R1 and R2 shall deposit the amount of Rs. 1,32,820/- with interest @ 7% p.a to the petitioner within 30 days from the date of filing of petition till realization in the name of petitioner with the Tribunal by way of cheque. Respondent no.3 (The Oriental Insurance Co,) is exonerated. No order as to costs. Copy of the award be supplied to both the parties free of cost. File be consigned to the Record Room. ANNOUNCED IN OPEN COURT DELHI, DT. 09.08.2010 (B.S. CHUMBAK) ADDL.SESSIONS JUDGE-3 NORTH EAST DISTRICT DELHI Page15/9 MACT NO.103/09; MATLUB AHMED VS. MANOJ SINGH 16 MACT 103/09 09.08.10 Present: None.
Vide separate detailed award it is directed that R1 and R2 shall deposit the amount of Rs. 1,32,820/- with interest @ 7% p.a to the petitioner within 30 days from the date of filing of petition till realization in the name of petitioner with the Tribunal by way of cheque. Respondent no.3 (The Oriental Insurance Co,) is exonerated. No order as to costs. Copy of the award be supplied to both the parties free of cost. File be consigned to the Record Room.
(B.S. CHUMBAK) ADDL.SESSIONS JUDGE-3 NORTH EAST DISTRICT DELHI Page16/9