Delhi District Court
At Present: 10/17 vs Kuldeep Raj Sharma S/O Sh. Baldev Raj ... on 12 March, 2012
IN THE COURT OF MS. VINEETA GOYAL: PO-MACT (SOUTH-01)
SAKET COURTS, NEW DELHI
INJURY CASE
Suit no. : 788/08
Unique Case ID no. : 02403C0779572004
IN THE MATTER OF :-
Anil Kumar S/o Sh. Mahindra Prashad Yadav
R/o Village Parihari, P.O Sripur Milik,
P.S Kumar Khand Distt. Madhepura (Bihar)
At present: 10/17, Ward No. 1, Yogmaya Mandir,
Yogmaya Tent House, Mehruali, New Delhi-110030. ------------ Petitioner
Vs.
1 Kuldeep Raj Sharma S/o Sh. Baldev Raj Sharma
R/o 36 C-Ward No.1, Mehruali,
New Delhi-110030.
C/o. Through Smt. Shashi Sharam,
W/o. Sh. Vijay Kumar Sharma,
R/o. H. No.36-C, Ward No.2,
Mehruali,
New Delhi-30 ------------- Driver
2. Sh. Mukesh Bhardwaj S/o Sh. Gyan Chand Sharma
R/o. D-181, CFF Encalve,
Naib Sarai, New Delhi-30 ------------ Owner
3. Sanjeev Kumar Bansal
R/o. 505-506, Ward No.3
Mehrauli,
New Delhi-110030 ----------Insured
4. Ms. Oriental Insurance Co. Ltd.
Oriental House,
P. B. No.7037, A25/27
Asaf Ali Road
New Delhi-110002 ------------ Insurer
-------------- Respondents
Date of first institution : 25.09.2004
Date of institution
in the present court : 28.11.2008
Date of arguments : 28.02.2012
Date of order : 12.03.2012
Suit No.788/08 Page No.1/7
Present:- Sh. Ajit Kumar Chaudhary, counsel for petitioner.
Respondent no.1 to 3 ex-parte.
Sh. Mohan Babu Aggarwal, counsel for insurance company/R4.
JUDGEMENT/AWARD
1. This claim petition u/s 166 & 140 of Motor Vehicle Act, 1988 (herein called the Act) was filed by the petitioner against the respondents for grant of compensation of Rs.5,00,000/- on account of injuries sustained by him in motor vehicle accident.
2. According to petition, Sh. Anil Kumar Sharma on 01.05.2003 at about 3:00 p.m. was standing near Rehdi of his brother Sunil on the side of Kishan Garh Road, in the meantime a Tempo bearing no. HR-38-8022, being driven by the respondent no.1 came from south side at a very high speed, rashly, negligently and without blowing any horn and dashed against the petitioner. As a result of which the petitioner sustained grievous multiple injuries and immediately taken to Bhagwati Hospital Mehrauli, New Delhi. Later on an FIR no. 601/03 at Police Station Vasant Kunj u/s 279/337 IPC was registered against driver of the offending vehicle.
3. In response to the notice of petition to respondents,driver failed to mark his appearance and so proceeded ex-parte. Sh. Mukesh Bhardwaj, lawful owner, Sh. Sanjay Chandella/insured and Oriental Insurance Co. Ltd. appeared and filed their separate written statement.
4. The record reveals that offending vehicle is alleged to have been sold number of times which transpires from the claims made by Sh. Mukesh Bhardwaj and Sh. Sanjeev Chandela in their separate written statement.
5. Sh. Mukesh Bhardwaj in his written statement stated that the accident took place on 1.05.2003 but at that time he was not the registered owner of the vehicle bearing no.HR-38-8022, Swaraj Mazda Tempo and vehicle was not in his possession. He purchased the above tempo on 16.06.2003. At the time of accident the vehicle was in the name of Sh. Sanjeev Kumar Bansal and pleaded that Sh. Sanjeev Kumar Bansal Suit No.788/08 Page No.2/7 may be impleaded as party being owner of the offending vehicle and he is supposed to pay the compensation, if any to the injured.
6. Sh. Sanjeev Chandela in his written statement submitted that he has nothing to do with the present claim proceedings. He is the present owner and holder in due course of the offending vehicle. He was neither the owner of said vehicle at the time of accident nor was the alleged driver Kuldeep Raj Sharma, the respondent's employee. He further stated that he purchased the vehicle only on 05.11.2003 from one Sh. Mukesh Bhardwaj, S/o Sh. Gyan Chand Sharma R/o Mewla Maharajpur, Faridabad, Haryana, permanent address - D 181 C.F.F. Enclave Naib Sarai, New Delhi. A receipt of sale had been duly executed by the said Sh. Mukesh Bhardwaj in his favor and the vehicle was duly transferred in his name on 06.11.2003 at RTO Faridabad. He further stated that as per registration certificate of the offending vehicle it was purchased by Sh. Mukesh Bhardwaj from Sh. Sanjeev Kumar Bansal on 16.06.2003.
7. Insurance company in its written statement inter alia denied its liability however, pleaded that the vehicle was duly insured by policy/cover note no. 215200/31/2004/209 from 07.04.2003 to 06.04.2004 in the name of Sh. Shish Pal & Endt thereon 2004/1 from 08.04.2003 to 06.04.2004 in the name of Sh. Sanjeev Kumar Bansal.
8. It is significant to mention here that during the course of proceedings on the objection of respondents nos.2 & 3 an amended memo of parties was filed whereby the name of Sanjay Chandela was deleted and the name of Sh. Sanjeev Kumar Bansal as owner/insured of the vehicle was impleaded. In response to the notice issued to Sh. Sanjeev Kumar Bansal, he neither appeared nor filed his written statement and was proceeded ex-parte.
9. On the pleadings of the parties following issues were framed on 27.01.2010:-
Issues:
1. Whether the petitioner sustained injuries in an accident which took place on 1.05.2003 due to rash and negligent driving of vehicle No. HR-38-8022 driven by R1, vehicle owned by R2/R3 and insured by R4.
2. If so, what amount of compensation, petitioner is entitled to and Suit No.788/08 Page No.3/7 from whom?
3. Relief.
10. In order to prove his case petitioner stepped himself into the witness box and proved his evidence by way of affidavit as Ex. PW1/A and relied upon the documents such as FIR, site plan, bail bond, recovery memo of offending vehicle, mechanical inspection report, discharge summary, medical bills of Rs. 3522.45/- and matriculation certificate.
11. The insurance company in its defence got examined Sh. Jagat Ram, Asstt.
Manager, Oriental Insurance Co. DO1, F-14, Connaught Circus, New Delhi who proved the insurance policy, notices issued to the driver and owner to produce driving licence, permit and further states that insurance company is not liable for any compensation as there is breach of terms and conditions of policy. Owner of offending vehicle was not in a possession of permit to drive the offending vehicle and even the driving licence of driver was not valid at the time of accident.
12. I have heard learned counsel for parties and gone through the record. My issue wise findings are as under:-
Issue No. 113. The burden of proof of this issue was upon the petitioner. In order to prove this fact, petitioner got examined himself as PW1. He, by virtue of affidavit Ex.PW1/A and made statement on oath that accident in question was a result of rash and negligent driving of driver of offending vehicle. This witness was not subjected to cross examination by respondents. From unrebutted oral and documentary evidence, it is established from record that petitioner sustained injuries on account of negligent driving of driver. Hence, issue no.1 is decided in favour of petitioner.
Issue no. 2:
14. Since issue No. 1 has been decided in favour of the petitioner, he is entitled for compensation. The medical records suggests that primarily after the accident, on 01.05.2003 the petitioner was removed to Bhagwati Hospital, Mehrauli, New Delhi and thereafter, he took treatment from Safdarjung Hospital. As per discharge summary he Suit No.788/08 Page No.4/7 has sustained grievous injuries such as fracture in left leg, iron rod inserted in leg and also got fracture in tibia and Fabula (left) and other multiple injuries on all parts of the body. He has filed medical bills of Rs. 3,522/-. It is seen from record that petitioner took treatment from Govt. Hospital also and it cannot be lost sight that for urgent medicines one has to spent money from his own pocket hence, petitioner is awarded Rs. 5,000/- towards actual and estimated medical expenses.
15. In the claim petition it is submitted that injured is about 27 years of age at the time of accident and doing the job of Kulfi Vendor and educated upto matriculation and earning Rs. 5,000/- per month and because of injuries sustained in an accident he could not work properly. He could not do day to day work atleast for three years and still without work and thus suffered financial loss. However, no medical record has been placed on record and suggests that he remained immobilized for three years but keeping in view the treatment given with abundant caution it can be presumed that he is out of job for six months. In the absence of any cogent and convincing evidence regarding the earning of victim per month, the income of the injured is to be computed under the Minimum Wages Rates for matriculate at the relevant time in May, 2003 which was Rs. 3,231.90/- and thus loss of income comes out to be Rs. 19391.4/- as rounded off Rs. 19,400/- and same is awarded.
16. In addition to the aforesaid amounts petitioner is also entitled for Rs. 20,000/- for pain and suffering and Rs. 10,000/- for special diet and conveyance and in total petitioner is awarded Rs. 5,000+19400+20,000+10,000= 54400/-.
Relief:-
17. Petitioner is awarded Rs.54400/- with interest @ 7.5% per annum from the date of filing of petition i.e. 25.09.2004 till its realisation.
LIABILITY:-
18. In this case, during the course of proceeding Clerk from RTO Faridabad, Sh.
Vikas Yadav was examined as court witness for seeking clarification regarding the ownership of offending vehicle at the time of accident. He deposed that the vehicle was registered in the name of Sh. Shish Pal before 15.01.2003 thereafter the vehicle Suit No.788/08 Page No.5/7 was transferred in the name of Sh. Sanjeev Kumar Bansal S/o Sh. Puran Mal. As per their record Sh. Sanjeev Kumar was registered owner of the vehicle on the date of accident. The vehicle was further transferred in the name of Sh. Mukesh Bhardwaj and after that it was transferred in the name of Sh. Sanjeev Singh Chandela. From the testimony of this witness it is clear that vehicle was standing in the name of Sanjeev Kumar Bansal at the time of accident. The liability of owner continued so long as his name continued as registered owner in the records of registering authority. The counsel for insurance company seeks recovery rights on the grounds that the driving licence of offending driver was not valid and genuine at the time of accident and there was no permit and hence there is a violation of terms and policy and insurance company is not liable to compensation. I have perused the record and material evidence of the case. In this case there is no valid driving licence with the offending licence and there is no valid and lawful permit for plying the vehicle. The insured has breached fundamental terms and conditions of the policy and thus liability to pay compensation is fastened on the driver being the primary tortfeasor and owner of the vehicle respondent no.3 vicariously. Both of them are jointly and severally liable to pay compensation to the petitioner. However insurance company is directed to make the payment of awarded compensation to the petitioner and to recover the same from driver/respondent no.1 and owner /respondent no.3.
19. Respondent no.4/insurance company is directed to directly deposit the cheques with SBI, Saket Court branch within 30 days from today and in case of default, penal interest @ 12 % per annum shall be given from the date of filing of delay till deposit of the awarded amount on the account of petitioner.
20. On the request of claimant the Bank shall transfer the Saving Account to any other branch of SBI, Saket Court according to his convenience. Claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account in bank.
21. . Let for the identification of the petitioner, the first copy of the petition wherein photograph of the petitioner is affixed, be annexed with the award.
Suit No.788/08 Page No.6/722. Award is passed accordingly.
23. File be consigned to record room only after compliance by insurance company by depositing the award in the manner as stated above. Be awaited for compliance for 25.04.2012.
Pronounced in the open court
on 12.03.2012 VINEETA GOYAL
PO : MACT (SOUTH-01)
Suit No.788/08 Page No.7/7