Delhi District Court
Shri Kishan ( Now Deceased) vs Sh. Pardeep on 14 December, 2013
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IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI
MACP no. 1645/07
Shri Kishan ( Now deceased)
being represented through his wife
Smt. Anita Devi
W/o Late Shri Kishan S/o Sh. Hari Ram
R/o Village & PO Pandwala Kalan,
Near Post Office Najafgarh, New Delhi ........Petitioner
Through: Advocate R.K. Singh
Chamber No. 164165, Western Wing
Tis Hazari Courts, Delhi110054.
VERSUS
1. Sh. Pardeep
S/o Sh. Mir Singh
R/o 10/254, Bahadurgarh,
Distt. Jhajjar, Haryana
2. Ishwar Singh
S/o Sh. Daya Chand
R/o V.P.O Godoli Kalan,
Distt. Gurgaon, Haryana
3. The National Insurance Company Ltd.,
Flat no.1719, IDPL Complex,
34, Main Road, Kapashera,
New Delhi - 110037.
Policy No. 361403/31/06/6700003674
Case No 1645/07 Kishan vs. Pardeep & Ors Page 1 of 18
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Valid from 07.03.2007 to 06.03.2008 ...... Respondents
1.Date of institution: 31.10.2007
2.Date of framing of issues: 01.11.2010
3.Date of hearing arguments : 12.12.2013
4.Date of decision: 14.12.2013 AWARD/ JUDGEMENT:
1. Brief facts of the case are that on 19.08.2007 at about 3.30 PM, Sh.
Kishan (hereinafter the original petitioner and now deceased) along with one Rajan Soni were going on motorcycle. On reaching at Main Chhawla Road, near Pooja Enterprises, Najafgarh, Delhi, Rajan Soni above named got down from the Motorcycle to just inquire the address of some body and Sh. Kishan was in the process to park the motorcycle, when a Swaraj Mazda bearing no. HR55C0360 (hereinafter the offending vehicle) driven by Respondent no.1 ( in short R1) at very high speed in rash & negligent manner came from opposite side and hit the petitioner with great force. As a result thereof, the victim fell down on the road and sustained multiple grievous injuries. He was removed to Metro Life Line Hospital, Najafgarh from the place of accident for treatment. The offending vehicle was owned by Respondent no. 2 (in short R2) which was insured with the respondent no. 3 (in short R3).
2. Pursuant to service of the notice, R1 & R2 did not appear and they were proceeded exparte vide order dated 03.05.2010. Case No 1645/07 Kishan vs. Pardeep & Ors Page 2 of 18 -:3:-
3. This petition was resisted by the Insurance company/ R3 after filing a separate W. S. whereby claimed contributory negligence pleading that petitioner had sustained injuries due to his own carelessness and negligence and not because of any wrongful act or negligence on the part of the driver of the vehicle as alleged. However, it has been admitted that vehicle was insured with it vide Policy bearing no. 361403/31/06/6700003674 valid from 07.03.2007 to 06.03.2008 covering the period of accident subject to the terms and conditions of the policy. A highly exaggerated and disproportionate amount has been claimed without any basis.
4. On the basis of the pleadings of the parties, issues were framed vide order dated 01.11.2010.
5. Having heard the arguments advanced on behalf of both the sides and after perusal of material including the evidence on record, my issue wise findings are as under: ISSUE NO. 1 Whether the petitioner sustained injuries on 19.08.2007 due to rash or negligent driving of vehicle no. HR55C0360 by R1? .....OPP
6. The onus to prove the issue was on the petitioner. To discharge the onus, PW 1 Sh. Kishan and PW 4 Sh. Rajan Soni had averred the details of the accident through their respective affidavits Ex PW1/A and Ex. PW 4/A by Case No 1645/07 Kishan vs. Pardeep & Ors Page 3 of 18 -:4:- narrating the manner of accident in para no. 1 of their affidavits. Their depositions have not been controverted by R1 & R2 as they chose to stay away from the proceedings and as such, no question was put to him on the aspect of negligence. During the course of crossexamination on behalf of the insurance company, PWs confirmed the facts about the date, time and place of the accident. Nothing adverse came out during their crossexamination to make them untrustworthy witnesses. Furthermore, Rajan Soni was cited as witness of the accident, thus, his testimony has to be acted / relied upon.
7. Besides this, the petitioner has proved the attested copies of criminal record i.e. such as Charge Sheet Ex. PW 2/320, FIR Ex. PW 2/322, arrest memo Ex. PW 2/327, site plan Ex. PW 2/323, Mechanical inspection report Ex. PW 2/330 and MLC Ex. PW 2/326 to establish the factum of the accident.
8. The standard of proof in a claim petition is not as rigid and high, as in a criminal case. In a criminal case, proof beyond reasonable doubt is required, however, in a criminal petition, it is not so.
9. In Bimla Devi and others Vs. Himachal Raod Transport Corporation and others (2009) 13 SC 5 13, it has been observed that in a road accident, the strict principles of poof as in a criminal case are not attracted. Relevant portion of the judgment is reproduced as under: "15. In a situation of this nature, the Tribunal has rightly Case No 1645/07 Kishan vs. Pardeep & Ors Page 4 of 18 -:5:- taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
10. The aforesaid proposition of law has again upheld by the Hon'ble Apex Court in Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No. 1082 of 2011).
11. From the evidence available on record, it stands established that the accident had taken place on the given time, date and place due to the negligent driving of driver of the offending vehicle and hence, issue no. 1 is decided accordingly in favour of the petitioner.
ISSUE NO 2 Whether the petitioner is entitled to claim compensation if so, what amount and from whom? .....OPP
12. As issue no.1 is decided in favor of the petitioner in affirmative, petitioner is entitled for the compensation. Quantum of the compensation, however, is required to be calculated.
13. It has been held in a catena of judgments by Hon'ble Apex Case No 1645/07 Kishan vs. Pardeep & Ors Page 5 of 18 -:6:- Court and various High Courts that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. It has been held in a number of judgments that general principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. In examining the question of damages for personal injury, pecuniary or nonpecuniary damages are required to be taken into account.
14. Before I, calculate the amount of compensation , it would be appropriate to incorporate the observations made by the Hon'ble Supreme court in Kavita v. Deepak and Ors. 2012 ACJ 2161 which are as follows: "In case of injury while fixing an 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 has actually incurred and which is capable of being calculated in terms of money;
whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages Case No 1645/07 Kishan vs. Pardeep & Ors Page 6 of 18 -:7:- may include expenses incurred by the claimant: ( i) medical attendance; (ii) loss of earning of profit upto the date of trial ; (iii) other material loss. So far non pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, 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 no 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.""
15. In view of above, in order to calculate the amount of compensation, the sum is required to be considered under the various heads as delineated above by Hon'ble Apex Court.
(a) MEDICINES
AND TREATMENT
16. PW1 Sh. Sri Kishan & PW 2 Sh. Hari Ram in their respective affidavits Ex PW1/A & Ex. PW 2/A had averred that in the accident, Sri Kishan Case No 1645/07 Kishan vs. Pardeep & Ors Page 7 of 18 -:8:- (now deceased) had sustained grievous injuries i.e. right hemispheric acute subdural hemorrhage (ii), serious head injury and other multiple injuries all over his bodies. He became permanent disabled person having 50% disability as he lost mental balance and memory i.e. post traumatic psychiatric disorder. After the accident, he was removed to Metro Life Line Hospital, Najafgarh, New Delhi for treatment where his MLC bearing no. 002 Ex. PW2/326 was prepared. After giving the first aid, he was referred to Vimhans Hospital, Delhi where he remained hospitalized.
17. PW6 Dr. Ajay Yadav MD Medicines Sanjeevini Clinic, Najafgarh deposed that he was called by the Metro Life Line hospital to attend the patient in the hospital where he examined the patient Sh. Sri Kishan medically and found in an unconscious state of mind. He further deposed that due to the head injuries received by the patient in an accident, his trachea was found blocked and he gave the treatment in order to clear airways and thereafter, he personally took him to Vimhans hospital for further management. During his hospitalization, an operation was conducted on the head of the victim. He was discharged from the said hospital with a advice to checkup regularly for about 3 months as an outdoor patient.
18. PW 5 Dr. Rajesh Mehta RMO Vimhans hospital deposed about the treatment of the victim after confirming his admission in the hospital on 19.08.2007 and discharged on 14.09.2007. He stated that patient was brought in Case No 1645/07 Kishan vs. Pardeep & Ors Page 8 of 18 -:9:- casualty with history of RTA at about 3.00 p .m on 19.08.2007 while he was driving the motorbike and hit by RTV mini bus. After that he became unconscious and he was taken to local hospital. According to him, history of blood from mouth and history of seizure. Photocopy of MLC is Ex. PW 5/A (OSR). He was again admitted on 01.02.2008 and discharged on 04.02.2008 for followup treatment of FCU acute right hemispheric STH, post craniectomy with bone defect. Discharge summary is already exhibited Ex. PW 1/1. He confirmed as correct the medical bills already exhibited Ex. PW 2/15 to Ex. PW 2/18, Ex. PW 2/44, Ex. PW 2/58 to Ex. PW 2/94, Ex. PW 2/105, Ex. PW 2/106, Ex. PW 2/118, Ex. PW 2/119, Ex. PW 2/123, Ex. PW 2/128, Ex. PW 2/130, Ex. PW 2/131, Ex. PW 2/149 to Ex. PW 2/152, Ex. PW 2/158, Ex. PW 2/162, Ex. PW 2/169, Ex. PW 2/190, Ex. PW 2/257 to Ex. PW 2/286, Ex. PW 2/297, Ex. PW 2/298, Ex. PW 2/305 to Ex. PW 2/319, Ex. PW 2/331, Ex. PW 2/351, Ex. PW 2/354 to Ex. PW 2/364, Ex. PW 2/365 to Ex. PW 2/375, Ex. PW 2/387 to Ex. PW 2/392, Ex. PW 2/394, Ex. PW 2/399, Ex. PW 2/418, Ex. PW 2/442, Ex. PW 2/448, Ex. PW 2/452, Ex. PW 2/454, Ex. PW 2/456, Ex. PW 2/467 to Ex. PW 2/470, Ex. PW 2/472, Ex. PW 2/473, Ex. PW 2/475 to Ex. PW 2/478. Original discharge summary of Vimhans hospital is Ex. PW 2/477.. During his hospitalization, several tests and Xrays were conducted. It is stated that he had spent a huge amount on his treatment.
19. Perusal of record, it reveals that petitioner did take place on record Case No 1645/07 Kishan vs. Pardeep & Ors Page 9 of 18 -:10:- the bills of expenses incurred by him amounting to Rs.10,71,090/. Considering the nature of injuries, I am of the opinion that he must have incurred expenses over and above the bills placed on record but, I award a sum of Rs.10,71,090/. to the petitioner towards medicines and treatment against the bills actually proved on record.
(b) LOSS OF INCOME ON ACCOUNT OF DISABILITY : 20 PW2 during the course of his deposition had deposed that he was
doing private job and his earning was Rs.5000/ per month. He became unfit to do any job. His life span has been ruined due to the permanent disability. He suffered the serious brain injuries such as right parietal craniectomy with mild bulging of brain parenchyma through bony defect and areas of gliosis & encephalomalacia in right cerebral hemisphere which would not be able to lead him a normal life as that of earlier.
21 As there is no corroborative evidence with regard to the earning of the victim then regard is to be had to the minimum wages of unskilled worker prevalent at the time of accident. Accident did take place on 19/08/2007. The minimum wages of unskilled worker were Rs. 3,516/ as on 01/08/2007. 22 Besides this, the petitioner has proved a disability certificate Ex. PW 3/A by examining PW 3 Sh. Rakesh Kumar, Record Clerk, DDU Hospital, Hari Nagar. As per disability certificate, petitioner was found to have been suffering from RTA with Subdural hematoma with left hemiparesis having permanent Case No 1645/07 Kishan vs. Pardeep & Ors Page 10 of 18 -:11:- disability of 50%. His day to day activities had certainly been affected as he was doing private job and due to that he could not resume his duty. He took the long treatment from the various known hospital of Delhi including AIIMS Indian Spinal Injuries Centre and finally he died on 09.12.2011.
Considering the disability certificate issued by the doctor, compensation is granted as Rs. 91,384/ on the basis of 50% of the minimum wages of unskilled worker prevalent at the relevant time from the date of accident and till the date of death ( 19.08.2007 to 09.12.2011) to meets the ends of justice.
d) PAIN & SUFFERING: 23. Pain and suffering is covered under non pecuniary damages. To
calculate the same, nature of injuries sustained by the injured, duration during which he got the medical treatment and was confined to bed, are some of the factors which are required to be taken into account.
24. In the present case, it is apparent from the medical record that he had sustained grievous injuries i.e. right hemispheric acute subdural hemorrhage
(ii), serious head injury and other multiple injuries all over his bodies. He became permanent disabled person having 50% disability as he lost mental balance and memory i.e. post traumatic psychiatric disorder. After the accident, he was removed to Metro Life Line Hospital, Najafgarh, New Delhi for treatment where his MLC bearing no. 02/07 Ex. PW2/326 was prepared. After giving the first aid, he was referred to Vimhans Hospital, Delhi where he remained Case No 1645/07 Kishan vs. Pardeep & Ors Page 11 of 18 -:12:- hospitalized. Physical pain which the petitioner must have undergone during the course of treatment would have been immense. The mental agony which the petitioner might have undergone at the time of accident cannot be equated or quantified in terms of money. Physical pain which the petitioner must have undergone during the course of treatment would have been immense.
25. To compensate the petitioner under this head, I award a sum of Rs. 50,000/ to the petitioner for pain and suffering on account of the loss of estate. CONVEYANCE & SPECIAL DIET :
26. PW1 and PW 2 during the course of their deposition have failed to substantiate the amount spent by them on conveyance and special diet with documentary evidence, however considering the nature of injuries sustained by the victim, he would have paid repeated visits to the hospital / doctor for his follow up treatment incurring expenses on conveyance which is apparent from the Original bills & OPD cards and prescriptions. The test report and Xray report are also placed on record. He must have required to take special diet to recover from the injuries sustained by him. I, therefore, award a sum of Rs 50,000/ to the petitioner towards Conveyance and special diet.
27. Keeping in view the nature of injuries and evidence available on record, following amount shall be just compensation: 1 For Loss of earning on account of disability during the period Case No 1645/07 Kishan vs. Pardeep & Ors Page 12 of 18 -:13:- 19.08.2007 to 09.12.2011 : Rs. 91,384/ 2 For medicine and treatment : Rs. 10,71,090/ 3 Pain and Suffering : Rs. 50,000/ 4 Conveyance &Special Diet : Rs. 50,000/ _________________________________________________________________ Total : Rs. 12,62,474/ (Rupees Twelve Lacs , Sixty Two Thousand, Four hundred and Seventy Four only) INTEREST
28. This petition was filed on 31.10.2007. There is no material to withhold the interest. Petitioner is awarded interest @ 7.5% per annum from the date of filing of the petition till its realization. LIABILITY 29 Ld. Counsel for the insurance company has taken a stand while making submission that since the insured has failed to produce original DL of driver of the offending vehicle despite the service of notice u/o 12 rule 8 CPC, thus, the court can presume that the offending vehicle was being driven without a valid and effective DL on the date of accident. To support his contention, he has examined R3W1 Sh. Shyam Singh Bisht, Assistant, National Insurance Company. who confirmed the aforesaid facts in his testimony. He proved the carbon copy of the policy as Ex. R3W1/1 (running into 3 pages), D/L report is Ex. R3W1/2 (colly. Running into 4 pages). He proved the copy of notice as Ex. Case No 1645/07 Kishan vs. Pardeep & Ors Page 13 of 18 -:14:- R3W1/3 & Ex. R3W1/4 sent to the driver and owner of the offending vehicle through registered post and postal receipts are Ex. R3W1/5 & Ex. R3W1/6. R3W2 Sh. Anil Kumar Record Clerk, RT Office Bahadurgarh corroborated the statement of the R3W1 Shyam Singh Bisht after saying that D/L bearing no. 148/J/05 was issued on 05.01.2005 in the name of Sh. Mukesh Kumar S/o Hoshiyar Singh R/o Village Jahajgarh, Tehsil Beri, Distt. Jhajjar for the category of Car/ Jeep/ LTV. After having seen the verification report already Ex. R3W1/2, he stated that D/L of Pradeep shown to him is a fake and the same has not been issued by his office. It is further averred that since the offending vehicle was being driven in breach of the terms and conditions of the insurance policy and accordingly, the insurance company can not be held liable for payment of any amount of compensation. The notice u/o 12 Rule 8 CPC neither responded nor replied and inference is that driver was not holding any other licence at the time of accident.
30. An unreported judgment & our own Hon'ble High Court passed on 17/8/2012 in MAC APP No. 457/2008 titled as National Insurance company Ltd. Vs. Paru Devi & ors., it has been observed that if the owner did not come forward to produce any other driving licence held by the driver at the time of accident, the inference is that no other driving licence was in possession of the driver.
Case No 1645/07 Kishan vs. Pardeep & Ors Page 14 of 18 -:15:- 31 In National Insurance Company limited Vs. Geeta Bhat & Others 2008 ACJ 1498, it was held as under: Motor Vehicles Act, 1988, Section 149 (2) (a)
(ii) - Motor insurance - Driving Licence - Fake licence - Third party risk - Liability of insurance company - Death of passenger in three wheeler when it was hit by truck - Insurance company of truck seeks to avoid its liability on the ground that driving licence possessed by driver of truck was fake - Official of the concerned Licensing Authority was summoned but no one turned up -
Insurance company produced report of its own investigator that no licence had been issued in the name of the driver - Tribunal found that insurance company failed to lead evidence in support of its assertion and held that it is liable - Appeal by insurance company was dismissed by High Court - Apex Court assumed that license of truck driver was fake - whether insurance company is liable to make payment to third party claimants with liberty to recover the amount from owner and driver of the vehicle in appropriate proceedings - Held: yes. [2004 ACJ 1 (SC) followed].
32 After applying the ratio of judgments (supra), the defence sought to be raised by the insurance company u/s 149 of Motor Vehicle Act stands established that the offending vehicle was being driven in violation of the terms of the contract as the driver did not have any license to drive the vehicle in question.
33 Having regard the twin interest of petitioner who is a third party in this case and that of the insurance company and coupled with the fact that the Case No 1645/07 Kishan vs. Pardeep & Ors Page 15 of 18 -:16:- vehicle involved in the accident was insured with respondent no. 3, it would be appropriate to direct the insurance company/R3 to compensate the petitioner in terms of awarded amount with the liberty to recover subsequently from respondent no.1 & 2.
34 Recovery rights are, accordingly, granted to insurance company against respondent no.1 & 2 after having relied upon the judgment of our own Hon'ble High Court pronounced on 29/2/12 bearing MAC Appeal No. 329/10 titled as Oriental Insurance Company Ltd. Vs. Rakesh Kumar and others 35 In view of the above discussions, issue no. 2 is decided in favour of the petitioner and against the respondents.
ISSUE NO. 3
Relief.
36. In view of the findings on issues no. 1 and 2 the petitioner is awarded Rs. 12,62,474/ (Rupees Twelve Lacs , Sixty Two Thousand, Four hundred and Seventy Four only)with interest.
37. The awarded amount be deposited by R3 with State Bank of India, Dwarka Court Complex Branch, New Delhi54 either through RTGS or NEFT mode within 30 days from today under intimation ( with proof of deposit of the awarded amount and notice to the petitioner as well to his counsel through registered post) to the Nazir of this Court. Upon the aforesaid amount being deposited, Manager State Bank of India, Dwarka Court Complex Branch, New Case No 1645/07 Kishan vs. Pardeep & Ors Page 16 of 18 -:17:- Delhi is directed to release Rs.2,62,474/ with interest to the petitioner by transferring the same to her saving bank account after keeping the remaining amount in the shape of FDR in the following manner:
a) Rs. 1,00,000/ for a period of one year to claimant.
b) Rs. 1,00,000/ for a period of two years to claimant.
c) Rs. 1,00,000/ for a period of three years to claimant.
d) Rs. 1,00,000/ for a period of four years to claimant.
e) Rs. 1,00,000/ for a period of five years to claimant.
f) Rs. 1,00,000/ for a period of six year to claimant.
g) Rs. 1,00,000/ for a period of seven years to claimant.
h) Rs. 1,00,000/ for a period of eight years to claimant.
i) Rs. 1,00,000/ for a period of nine years to claimant.
j) Rs. 1,00,000/ for a period of ten years to claimant.
38. The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account.
39. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Savings Account of the beneficiary.
40. Withdrawal from the aforesaid account shall be permitted to the beneficiary after due verification and the Bank shall issue photo Identity Cards to the beneficiary to facilitate identity.
41. No cheque books shall be issued to the beneficiary without the Case No 1645/07 Kishan vs. Pardeep & Ors Page 17 of 18 -:18:- permission of this Court.
42. The original fixed deposit receipts shall be retained by the Bank in the safe custody. However, the original Pass Book shall be given to the beneficiary along with the photocopy of the FDRs. Upon the expiry of the period of each FDR, the Bank shall automatically credit the maturity amount in the Savings Account of the beneficiary.
43. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court.
44. On the request of the beneficiary, Bank shall transfer the Savings Account to any other branch according to his convenience.
45. Copy of the award be supplied to both the parties at free of cost. Copy of this award be sent to the Nodal Officer of the Bank with Court stamped, photographs of the claimant and his signature along with identity proof documents forthwith.
46. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED: 14.12.2013 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
(All pages are signed)
(1+1)
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