Delhi District Court
Gajanand vs Rajpal Sharma & Ors on 15 January, 2014
1
IN THE COURT OF SH. AJAY KUMAR JAIN:
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL :
SAKET : NEW DELHI
Suit No. 98/11/08
Gajanand Vs Rajpal Sharma & Ors
FIR No. 154/2008
PSNangloi
Unique Identification ID: 02403C0888112008
Disability Case:
Gajanand S/o Sh. Moti Lal
R/o D101, J.J.Colony, Bakkarwala, Delhi
Presently resided at : J98,
Janta Jiwan Camp, Tigri, New Delhi
................Petitioner/claimant
Versus
1. Sh. Rajpal Sharma (owner)
S/o Sh. M.L. Sharma
J2/33, Khirki Village,
Malviya Nagar Extension , Delhi
2. Pradeep (driver)
S/o Sh. Surender
R/o Village & PO Masoodpur,
Vasant Kunj, New Delhi110070
3. Bajaj Allianz General Insurance Company Ltd
A3, 1st Floor, Sector4, Noida, Uttar Pradesh
..............Respondents
Date of institution : 30.09.2008 Date of reserving the judgment : 10.01.2014 Date of pronouncement : 15.01.2014
Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 2 Judgment
1. Present claim petition filed u/s 166/140 MV Act.
2. Brief facts of the case is that on 06.03.2008 at around 03.20pm, when petitioner was deboarding from offending bus bearing no. DL1PA5013 at Bakkar wala bus stand, respondent no. 2 driver without caring, in rash and negligent manner accelerated the speed of the bus, thereby caused grievous injuries to the petitioner from the back side tyre of the bus. After accident, petitioner was removed to Sanjay Gandhi Memorial hospital, Mangolpuri, where his MLC was prepared.
3. An FIR No. 154/2008 u/s 279/337 IPC PSNangloi was registered on the statement of injured Gajanand. During investigation, police prepared site plan of the place of occurrence, seized the offending bus, conducted its mechanical inspection, collected MLC and X ray report of the petitioner, issued notice u/s 133 MV Act to the owner, arrested respondent no. 2 driver. On completion of investigation found respondent no.2 driver accused of rash and negligent driving, hence chargesheeted for the commission of offence u/s 279/338 IPC.
4. During proceedings, petitioner was examined for disability. Disability certificate dated 27.12.2012 issued by the medical board of Pandit Madan Mohan Malviya hospital opining petitioner suffered 16% permanent disability in relation to his right lower limb. Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 3
5. During proceedings, R1 appeared through counsel Sh. D.S.Khatana however R2 did not appeared despite service of notice. Insurance company took objection that number of offending bus was wrongly mentioned in the petition, thereafter SHO report was called and the same was rectified. Insurance company in its WS raised plea that bus number bearing no. DL1PA5013 was duly insured with their company, but the respondent no. 2 was not authorized to drive the said vehicle. No reply was filed by R1 owner and R2 driver and were proceeded exparte vide order dated 21.05.2013.
6. From pleadings of the parties following issues were framed:
1. Whether the petitioner suffered injuries in the accident took place on 06.03.2008 at around 03.20pm involving vehicle i.e bus number bearing no. DL1PB5013 driven by respondent no.2 owned by respondent no.1 and insured with the respondent No. 3? OPP.
2. Whether the petitioner is entitled for compensation? If so to what amount and from whom?
3. Relief.
7. Though in issues, the bus number is mentioned as DL1PB5013, however the actual bus number bearing no. DL1PA5013, therefore, the correct bus number in issues be read as DL1PA5013. Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 4
8. During evidence petitioner examined herself as PW1. Insurance company examined R3W1 Santosh Kumar, Dealing Assistant, State Transport Authority, Rajpura Road and R3W2 Shreyas Thakur, Executive Legal. R1 and R2 remained exparte and not led any evidence.
9. After hearing the arguments of the parties, and perusal of material placed on record. My issuewise findings are as under;
10. Issue No. 1: (Negligence): Petitioner in his affidavit of evidence categorically stated that that while he was deboarding from the offending bus, R2 driver in rash and negligent manner speeded up the bus due to which her right leg was injured from the back tyre of the bus. Nothing material came in cross examination to discredit his version. His version is duly corroborated by police investigation. Police during investigation also found respondent no. 2 accused of rash and negligent driving hence chargesheeted him for commission of offence u/s 279/338 IPC. No evidence to the contrary led by driver and owner.
11. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court in case titled "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 5 finding that the driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of Hon'ble High Court of Delhi in "National Company Limited Vs. Pushpa Rana" (2009 ACJ 287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
12. In view of the above discussion, further as no contrary evidence came against the petitioner, it stands proved that the petitioner had suffered injuries due to rash and negligent driving of the R2. Accordingly the issue no. 1 is decided in favour of the petitioner and against the Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 6 respondent.
Issue no. 2 Compensation
13. In injury cases, the claimants are entitled to pecuniary as well as non pecuniary damages. Apex court in Raj Kumar Vs Ajay Kumar 2011 (1) SCC 343 held that compensation awarded must be "just compensation"
means to the extent possible tribunal fully and adequately restore the claimant to the position which he/she was having prior to the accident. The person is not only to be compensated for physical injury, but also for loss which he /she suffered as a result of such injury. Apex court in R.D.Hatangadi Vs Press Control (India) Pvt Ltd (1995) 1 SCC 551 held that pecuniary and non pecuniary compensation to be assessed separately. Pecuniary damages are those which the victim has actually incurred, which are capable of being calculating in terms of money, whereas non pecuniary damages are those which are not capable of being assessed by arthematical calculation, however no amount of compensation can restore the physical frame of the victim, therefore object to compensate such injury is "so far as money can compensate"
because it is impossible to equate money with the human suffering or personal deprivation. To compute compensation involved some guess work, some hypothetical considerations, some amount of sympathy linked with the nature of disability caused. In Nagppa Vs Gurdayal Singh 2003 (2) SCC 274 apex court observed that while calculating such damages the tribunal required to have some guess work taking into account the inflation factor.
Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 7
14. In the light of aforesaid guidelines and parameters, the tribunal has to assess the compensation to be awarded to the claimants/petitioners.
15. Medical Expenses: Petitioner after accident was removed to Sanjay Gandhi Memorial hospital. MLC mark A categorically shows that he suffered grievous injuries on right ankle foot as well as on the dorsal side of right foot, further swelling and deformity of left foot noticed. Though the petitioner neither filed the treatment documents nor discharge summary but the medical bills shows that he remained under treatment with Sanjay Gandhi Memorial hospital for the said injuries. During proceedings, he was also examined for disability. Disability certificate dated 27.12.2012 issued by the medical board of Pandit Madan Mohan Malviya hospital shows 16 % permanent disability in relation to his right lower limb. Nothing came in cross examination to doubt the medical condition of the petitioner. Ld. Counsel for the petitioner during arguments submitted that petitioner incurred a sum of Rs. 4846/ towards medical expenses. In this regard relied upon medical bills Ex. PW1/C collectively. Hence a sum of Rs. 4846/ is granted to the petitioner towards medical expenses.
16. Pain & Sufferings :Petitioner suffered grievous injuries resulting permanent disability to the extent of 16% in right lower limb. Keeping in view the nature of injures, disability suffered, duration of treatment and Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 8 trauma of accident a sum of Rs.75,000/ is granted toward pain and suffering.
17. Loss of Amenities and enjoyment of life: Petitioner with this disability will not be able to do the daily activities effectively, therefore, a sum of Rs. 75,000/ is granted towards loss of amenities and enjoyment of life.
18. Loss of income during treatment: Petitioner in her affidavit of evidence stated that he has suffered a total loss of income of Rs. 4 lacs, however not whispered iota in his affidavit of evidence about what vocation work, he was doing at the time of accident, though in cross examination, stated due to this injury he unable to work as a whitewash labour. Petitioner also not filed any documents to substantiate upto which period he remained on rest. However, keeping in view the nature of injuries and duration of treatment, a lump sum of Rs 25,000/is granted to the petitioner towards loss of income during treatment.
19. Loss of future income: As per disability certificate, the petitioner suffered 16% disability in the right lower limb. In view of the judgment Delhi High Court titled as "Laxmi Narain Vs. Trilochan Singh & Ors., FAO No. 289/99, dated 04.05.2009, Delhi", the total functional Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 9 disability toward whole body is assessed around 08%.
20. Petitioner is found to be working as white wash labour, present disability injuries will certainly hamper his future prospects. Apex court judgment in Raj Kumar Vs. Ajay Kumar 2011(1) SCC 343 mandated the adoption of multiplier method for calculation of compensation for future loss of earning capacity in case of permanent disability. The income is to be assessed on the basis of minimum wages applicable for unskilled labour on the date of accident i.e 06.03.2008. Minimum wages for unskilled labour on 06.03.2008 is Rs. 3633/ per month, hence income of the petitioner is assessed as Rs. 3633/ per month. In the light of above judgment the calculation for loss of future earning will be as follows :
(a) Annual income before the accident = 3633X12= Rs 43596/
(b) loss of future earning per annum (08% of the prior annual income) = Rs 43596/ X 08% = 3487.68
(c) Petitioner as per disability certificate he is found to be aged around 45 years in 2012, therefore he is around 41 years of age at the time of accident. hence, applicable multiplier in accordance to Sarla Verma Case is 14.
(d) Loss of future earnings = Rs.3487.68 X14= Rs. 48827.52/ (round figure as Rs 48,828/).
Thus sum of Rs. 48,828/is granted towards loss of future income.
21. Compensation for Special Diet, Attendant and Conveyance charges:
Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 10 Petitioner has not filed any documentary evidence for claiming expenses under the present head. However keeping in view the nature of injuries and duration of treatment a sum of Rs 10,000/ each is granted towards special diet, attendant and conveyance charges. Thus a total sum of Rs. 30,000/ is granted under this head.
22. Disfigurement: Petitioner suffered disability in his right lower limb which causes disfigurement of the body, therefore Rs. 25,000/ granted to him towards disfigurement.
23. The total compensation is assessed for injured as under; S.No Description Amount 1 Compensation for medical expenses Rs. 4846/ 2 Compensation for pain & suffering Rs. 75,000/ Compensation for special diet and Rs. 30,000/ 3 conveyance Compensation for loss of income during Rs.25,000/ 4 treatment 5 Compensation for loss of future income Rs.48,828/ Compensation for loss of amenities and Rs. 75,000/ 6 enjoyment of life 7 Compensation for disfigurement Rs. 25,000/ Total Rs. 2,83,674/ Relief:
Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 11
24. The petitioner is hereby awarded a sum of Rs. 2,83,674/ (Rupees two lacs eight three thousand six hundred seventy four only) with interest @ 9 % per annum from the date of filing of the present petition till the date of realization of the amount in favour of petitioner and against the respondent on account of their liability being joint and several.
25. The driver R1 is the principal tort feasor whereas R2 being owner vicariously liable and R3 insurance company liable to indemnify R2.
26. Liability: The main plea of the insurance company is that R2 driver is not authorized to drive the offending bus, hence, violated the terms and condition of the policy. In this regard, insurance company examined R3W1 Santosh Kumar, dealing assistant from STA and R3W2 Shreyas Thakur, Legal Executive from the insurance company. Ld. Counsel for the insurance company submitted that as R1 and R2 violated the policy conditions, hence, insurance company is not liable to pay any amount.
27. The main ground of challenge by the insurance company is that R2 is not the authorized person to drive the vehicle, however, it is not case of insurance company that R2 was not holding valid and effective licence.
This contention is directly dealt by Delhi High Court in case title Bajaj Allianz General Insurance company Ltd Vs Vibhishan Mahto @ Vibhishan Prasad and Ors MAC. APP. 756/2010 dated 04.12.2012. In Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 12 this case Hon'ble Delhi High Court held that this is not violation of condition envisaged u/s 149(2) M.V. Act, thus, even if this violation is proved by the insurance company, it can not avoid its liability to indemnify the owner.
28. Underlying principle is that as the insurance company is a creation of statute, therefore not entitled to raise any other defence for avoiding liability except statutory defences as envisaged under section 149 (2) of MV Act. Insurance company can not avoid liability on the ground of other statutory violations or violation of mandatory provisions committed by the insured (relied upon British India General Insurance Company Limited Vs Captain Itbar Singh AIR 1959 SC 331, National Insurance company limited Vs Nicolletta Rohtagi 2002 ACJ 1950 (SC), National Insurance company Vs T.Elumalai & Anr. AIR 1990 Madras 71, Regional Manager, United India Insurance Company Ltd Vs Narayanappa And Ors 2012 ACJ 1805).
29. Hence, the contention of the insurance company that offending vehicle was not driven by the authorized person can not be held to be a ground to avoid liability. Insurance company is liable to indemnify the owner and not entitled for any recovery rights.
30. In view of the above discussion, the insurance company is directed to discharge the liability of the award amount within a period of 30 days Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 13 from today alongwith the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay. Release of award amount:
31. Out of awarded amount of Rs. 2,83,674/ (Rupees two lacs eighty three thousand six hundred seventy four only) a sum of Rs.83,674/ alongwith proportionate interest be immediately released to petitioner and balance sum of Rs. 2 lacs alongwith proportionate interest thereon be kept in form of FDR in the following phased manner :
1. Rs. 1 lacs for period of 1 year
2. Rs. 1 lacs for a period of 2 years
32. Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi
33. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
34. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd. Vs. Ganga Devi & ors. Bearing MAC. App. Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 14 135/2008" as well as in another case titled as "Union of India Vs. Nanisiri" bearing MAC Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
35. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit/ savings account by Hon'ble High Court, insurance company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners. Within a period of 30 days from today, failing which respondent no.3 Insurance company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
36. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "Fixed deposit/saving account" in the following manner:
(i) The interest on the fixed deposit be paid to the petitioner/ claimant by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimant/ petitioner after due verification and the Bank shall issue photo Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 15 identity Card to claimant/ petitioner to facilitate identity.
(iii) No cheque book be issued to claimant/ petitioner without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original pass Book shall be given to the claimant/ petitioner alongwith photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to claimant/ petitioner at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii) Half yearly statement of account be filed by the Bank in this court.
(viii) On the request of claimant/ petitioner, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimant/ petitioner shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, state Bank of India, Saket Courts Complex Branch, New Delhi.
Directions for the respondent No. 3 Insurance company
37. The Respondents3 is directed to file the compliance report of their having deposited the awarded amount with the State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors 16 today.
38. The Respondent No.3 shall intimate to the claimant/ petitioner about it having deposited the cheques in favour of petitioner in terms of the award, at the address of the petitioner mentioned at the title of the award, so as to facilitate them to withdraw the same.
39. Copy of this award/judgment be given to all concerned.
40. Put up the matter for compliance on 15.02.2014.
Announced in open Court ( Ajay Kumar Jain)
Dated : 15.01.2014 PO : MACT02, (SE)
Saket Courts, New Delhi/15.01.2014
Suit No. 98/11/08, Gajanand VS Rajpal Sharma & Ors