Delhi District Court
Sh.Shivam vs Sh.Ranjeet Kumar Yadav on 13 December, 2014
1
IN THE COURT OF SH. HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.409/13
DATE OF INSTITUTION:22.03.2013
Sh.Shivam
S/o Sh.Suresh
R/o Village Naryan Pur,
PS & Dist. Main Puri, Uttar Pradesh ..................Petitioner
Versus
1. Sh.Ranjeet Kumar Yadav
S/o Sh. Dukha Yadav,
R/o Village Shyam Pur Jally,
Muzzafarpur, Bihar
2. Sh.Mohd. Babllu
S/o Sh.Ibrahim
R/o 14/55/2, Village Satbari, Delhi
3. The Oriental Insurance Company Ltd.
D80, Malviya Nagar, Main Road,
Lower Upper Ground, New Delhi110017 ........Respondents
Final Arguments heard on : 04.12.2014
Award reserved for : 13.12.2014
Date of Award : 13.12.2014
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AWARD
1. Vide this judgment cum award I proceed to decide the petition filed U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 06.02.2013 the petitioner reached Vasant Kunj in vehicle no.HR55N3723 which was being driven by Sh.Husain Mohd to deliver the dust and at about 00.10 hours they parked their vehicle on the side of road near Kusum nursery and the injured got down from the vehicle in order to enquire the place where the dust was to be delivered and when he was crossing the road in the meantime the vehicle no.DL1LK8967 being driven by respondent no.1 in a rash and negligent manner came and hit the petitioner as a result of which the petitioner sustained injuries and he was taken to Safdarjung Hospital.
3. It is stated that the petitioner was 20 years of age at the time of accident and he was working as Condutor and was earning a sum of Rs.10,000/ per month. It is stated that the accident occurred due to rash and negligent driving of the offending vehicle by respondent no.1, owned by respondent no.2 and insured with respondent no.3 and as such all the respondents are jointly and severally liable to pay compensation. It is 3 prayed that Rs.Fifteen lacs alongwith interest @ 18% per annum be awarded as compensation in favour of petitioner against the respondents.
4. Respondents no.1 and 2 have not filed reply despite opportunities and they were proceeded exparte.
5. Respondent no.3 the insurance company has filed reply to the DAR and has contested the petition on various grounds. It is stated that the driver of offending vehicle was holding fake driving licence at the time of accident. It is stated that the vehicle no.DL01K8967 was insured with respondent no.3 vide policy no.215201/31/20133703 valid for the period from 17.08.2012 to 16.08.2013. It is denied that the insurance company is liable to pay compensation.
6. Vide order dated 25.04.2013 case was fixed for evidence of injured on the question of negligence and quantum of compensation.
7. In support of his claim petitioner examined himself as PW1. PW1 adduced evidence by way of affidavit Ex.PW1/A and proved the copy of his election identity card Ex.PW1/1, discharge summaries and prescriptions Ex.PW1/2(colly) and medical bills Ex.PW1/3(colly). Petitioner thereafter closed his evidence.
8. On the other hand respondent no.3 examined Ms. Pallavi Thakral, Administrative Officer of the insurance company as R3W1. R3W1 adduced evidence by way of affidavit Ex.R3W1/A. R3W1 proved the copy 4 of insurance policy Ex.R3W1/1, copy of notice under Order 12 Rule 8 CPC Ex.R3W1/2, postal receipts Ex.R3W1/3(colly) and stated that they are relying on the report of IO regarding verification of driving licence of respondent no.1 and stated that the insurance company is not liable to indemnify the insured as the driver of offending vehicle was found driving the vehicle on the basis of fake driving licence. Respondent no.3 thereafter closed its evidence.
9. I have heard the Ld. counsel for the parties and perused the record.
10.For succeeding in this claim petition, petitioner is required to prove negligence on the part of the driver of the offending vehicle and that he is entitled to the quantum of compensation as claimed.
11.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to rash and negligent driving by respondent no.1, the driver of offending vehicle no.DL1LK8967.
12.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental 5 Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
13. The case of the petitioner is that on 06.02.2013 the petitioner reached Vasant Kunj in vehicle no.HR55N3723 which was being driven by Sh.Husain Mohd to deliver the dust and at about 00.10 hours they parked their vehicle on the side of road near Kusum nursery and the injured got down from the vehicle in order to enquire the place where the dust was to be delivered and when he was crossing the road in the meantime the vehicle no.DL1LK8967 being driven by respondent no.1 in a rash and negligent manner came and hit the petitioner as a result of which the petitioner sustained injuries and he was taken to Safdarjung Hospital. It is 6 stated that the case vide FIR no. 40/13, under Section 279/337 IPC was registered at PS Vasant Kunj(South). The petitioner appeared in witness box as PW1 and adduced evidence by way of affidavit Ex.PW1/A. In the affidavit Ex.PW1/A the petitioner has reiterated the manner of accident as stated in claim petition. Driver and owner/respondents no 1 and 2 have preferred to remain exparte and have not crossexamined petitioner/PW1. In the crossexamination of petitioner/PW1 respondent no.3 has given suggestion to the effect that the accident took place due to negligence of petitioner which was denied by petitioner. Apart from giving suggestion to the effect that the accident took place due to negligence of petitioner, respondent no.3 has not adduced any evidence to substantiate its contention. Police has filed Accident Information Report(AIR) in this case and alongwith AIR police has filed copies of final report under Section 173 Cr. PC, copy of FIR no.40/13, under Section 279/337 IPC, PS Vasant Kunj(South), copy of MLC of petitioner prepared at Safdarjung Hospital, copy of site plan, copy of insurance policy of offending vehicle, copy of driving licence of respondent no.1, copy of RC of offending vehicle, copy of RC particulars of offending vehicle, copy of seizure memo of offending vehicle, copy of seizure memo of driving licence of respondent no. 1 and documents of offending vehicle, copy of arrest memo of respondent no.1, copy of mechanical inspection report of offending vehicle. As per FIR 7 case was registered on the basis of complaint of Sh.Husain Mohd. driver of vehicle bearing no. HR55N3723 in which the petitioner came to the spot of accident for delivery of dust in which he has reiterated the manner of accident as stated in the claim petition. As per charge sheet respondent no.1 has been charge sheeted for the offences under Section 279/338/471 IPC. Thus in view of the testimony of petitioner and documents on record, the negligence of respondent no.1 has been prima facie proved.
14.As the negligence of driver of offending vehicle has been proved the petitioner is entitled to compensation.
COMPENSATION MEDICINES AND MEDICAL TREATMENT
15.The case of the petitioner is that after the accident he was taken to Safdarjung hospital where he was admitted on 06.02.2013 and he underwent surgery on 07.02.2013 and was discharged on 09.02.2013 and thereafter he has undergone subsequent treatment. The petitioner has filed on record the discharge summary prepared at VMMC and Safdarjung Hospital Ex.PW1/2 as per which he was admitted in the said hospital on 06.02.2013 and was discharged on 09.02.2013 and the diagnosis is mentioned as "Grade IV splenic laceration with hemperitenium" and the operative procedure is mentioned as 8 "explorotomy laprotomy with emergency splenectomy with splenic drain insertion under GIA". The petitioner has filed case sheet of Safdarjung Hospital as per which he was admitted in the said hospital on 25.02.2013 and was discharged on 04.03.2013 and the diagnosis is mentioned as splenectomy(post splenic laceration) with fever and UTI. The petitioner has filed his subsequent treatment record. The petitioner has suffered injuries to spleen as a result of which he underwent splenectomy. The petitioner has filed on record the estimate dated 10.02.2013 issued by Safdarjung Medicos. The petitioner has filed on record the bill no.297093 issued by All India Chemist but the same is in the name of one Sh.Rohtash. The petitioner has also filed the bill no.136551 issued by Trade Concepts India Ltd. but the same is in the name of Sh.Vijay. The petitioner is thus awarded a sum of Rs.3472/ towards medicines and medical treatment.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
16.It has been held in Divisional Controller, K. S. R. T. C Vs Mahadeva Shetty and another, AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for less of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal 9 injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver(1969 1 All. E. R. 555) Lords Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monitory assessment."
17.The case of the petitioner is that after the accident he was taken to Safdarjung hospital where he was admitted on 06.02.2013 and he underwent surgery on 07.02.2013 and was discharged on 09.02.2013 and thereafter he has undergone subsequent treatment. The petitioner has filed on record the discharge summary prepared at VMMC and Safdarjung Hospital Ex.PW1/2 as per which he was admitted in the said hospital on 06.02.2013 and was discharged on 09.02.2013 and the diagnosis is mentioned as "Grade IV splenic laceration with hemperitenium" and the operative procedure is mentioned as "explorotomy laprotomy with emergency splenectomy with splenic drain insertion under GIA". The petitioner has filed case sheet of Safdarjung Hospital as per which he was admitted in the said hospital on 25.02.2013 and was discharged on 04.03.2013 and the diagnosis is mentioned as splenectomy(post splenic laceration) with fever and UTI. The petitioner has suffered injuries to spleen as a result of which he underwent splenectomy. The petitioner has filed his subsequent treatment record. 10 Looking at the nature of injuries, period of hospitalization, extent of treatment and that the petitioner has undergone emergency splenectomy the petitioner is awarded a sum of Rs.50,000/(Rs.Fifty Thousand only)for pain and suffering.
18. It is stated that petitioner was 20 years of age at the time of accident. As per discharge summary Ex.PW1/2 of VMMC and Safdarjung Hospital the petitioner suffered from grade IV splenic laceration and had to undergo emergency splenectomy. Looking at the nature of injuries notice can be taken of the fact that on account of injuries sustained, the petitioner might have not been able to move and perform day to day duties for his family and may not have been able to enjoy the amenities of life. Hence, petitioner is awarded Rs.20,000/ towards loss of amenities of life. CONVEYANCE AND SPECIAL DIET
19. In para 6 of affidavit Ex.PW1/A the petitioner has stated that he spent Rs.10,000/ on conveyance. In the crossexamination the petitioner/PW1 stated that he has not filed any bill regarding expenditure on conveyance and special diet. The contention of counsel for respondent no.3 is that the petitioner has not proved that he has incurred any expenditure on conveyance. Although the petitioner has not filed documents regarding expenditure on conveyance, however notice can be taken of the fact that as per case of petitioner after the accident he was admitted in RML 11 hospital and thereafter he has taken subsequent treatment also. Looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that petitioner may not have been able to drive of his own or to use public conveyance and might have have hired services of private conveyance for treatment and might have incurred expenditure on the same. In the circumstances a sum of Rs.5,000/(Rs.Five Thousand only) would be just and proper for conveyance and is awarded accordingly.
20. In para 6 of affidavit Ex. PW1/A the petitioner has stated that he spent Rs.15,000/ on special diet. In the crossexamination the petitioner/PW1 stated that he has not filed any document of expenditure on conveyance and special diet. The contention of counsel for respondent no.3 is that the petitioner has not proved that he was advised special diet. Although the petitioner has not proved the expenditure on special diet, however, looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein,vitamins and minerals for speedy recovery and might have incurred expenses on the same. Thus, the petitioner is awarded a sum of Rs.10,000/(Rs.Ten Thousand) for special diet.
LOSS OF INCOME
21.In the claim petition the petitioner has stated that at the time of accident he was 20 years of age and was working as conductor/helper and was 12 earning a sum of Rs.10,000/ per month. In para 8 of affidavit Ex.PW1/A the petitioner has stated that he was working as driver in private transport company and was earning a sum of Rs.10,000/ per month. In the cross examination the petitioner/PW1 stated that he has not filed any document of his income at the time of accident. In the absence of any document of income, the income of the petitioner shall be taken as per his educational qualifications/avocation. The petitioner has not filed any document of his educational qualification. As per claim petition the petitioner was working as conductor/helper and in his affidavit Ex.PW1/A the petitioner has tried to improve his case by stating that he was working as driver. As per FIR also the petitioner had come in vehicle no.HR55N3723 as helper/conductor. In the circumstances the income of the petitioner shall be taken as Rs.7254/ per month which were the minimum wages of an unskilled worker w.e.f. 01.10.2012.
22. In the affidavit Ex.PW1/A the petitioner has not mentioned the period for which he was advised rest and for which duration he could not attend his avocation and consequently suffered loss of income. The petitioner has not filed any advise from any doctor by which he was advised rest for any specific period. The petitioner has filed his treatment record Ex.PW1/2(colly) in which the last document of treatment filed is case sheet as per which he was admitted in Safdarjung Hospital from 13 25.02.2013 to 04.03.2013. The petitioner has not proved that he was advised rest for any specific period. However, looking at the nature of injuries notice can be taken of the fact that on account of injuries sustained the petitioner may not have been able to attend his avocation for a period of 3 months and might have suffered loss of income on that account. Consequently the petitioner is awarded a sum of Rs.21,762/ (Rs.7254x3) towards loss of income.
23. The petitioner has not proved that he has suffered any disability in this accident. In the crossexamination the petitioner stated that he has not suffered any disability. The petitioner has not proved that he has suffered any permanent disability or the nature of injuries sustained by him were such that on account of said injuries, he may not be able to perform his avocation in future or his efficiency will be reduced and his capacity to earn will be affected. In the circumstance, no amount is being awarded on account of future loss of income.
The total compensation is assessed as under:
Medicines and Medical treatment : Rs.3472/
Pain and suffering and loss of
Amenities of life : Rs.70,000/
Conveyance and Special Diet : Rs.15,000/
Loss of Income : Rs.21,762/
TOTAL : Rs.1,10,234/
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RELIEF
24.The petitioner is awarded a sum of Rs.1,10,234/(Rs. One Lac Ten Thousand Two Hundred Thirty Four) with interest @ 7.5% per annum from the date of filing of petition till its realisation including, interim award, if any already passed against the respondents and in favour of the petitioner. The entire amount be released to the petitioner.
25.The respondent no.3 shall deposit the award amount directly in the bank account of the claimant at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
26.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount. 15
27.The respondent no.3 shall deposit the award amount alongwith notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 27.02.2015.
APPORTIONMENT OF LIABILITY:
28. The contention of counsel for respondent no.3 is that at the time of accident respondent no.1 was found driving the offending vehicle without possessing valid driving licence and on that account insurance company is not liable to indemnify the insured. Respondent no.3 examined Ms.Pallavi Thakral, Administrative Officer of the insurance company as R3W1 who adduced evidence by way of affidavit Ex.R3W1/A. In para 3 of affidavit Ex.R3W1/A, R3W1 has stated that as per report of IO the driver was holding fake driving licence and the IO has verified the driving licence no.5123/08 from Licencing Authority Muzaffarpur. R3W1 further stated that notice under Order 12 Rule 8 CPC was issued to respondents no.1 and 2 vide postal receipts Ex.R3W1/3 but despite notice respondents no.1 and 2 have not produced any valid driving licence possessed by respondent no.1 at the time of accident. Alongwith AIR police has filed verification report of driving licence no.5123/08 Ex.R3W1/4 as per which the said licence has not been issued in the 16 name of respondent no.1. Respondents no.1 and 2 have preferred to remain exparte and have not crossexamined the R3W1. Testimony of R3W1 to the effect that the respondents no.1 and 2 have failed to produce valid driving licence possessed by respondent no.1 on the day of accident has remained unrebutted. Police has filed AIR in this case and alongwith AIR police has filed copy of final report u/s 173CrPC as per which respondent no.1 has been chargesheeted for the offences u/s 279/338/471 IPC. Hence respondent no.1 has been chargesheeted for driving the offending vehicle at the time of accident without valid driving license.
29. Rule 7 of Delhi MACT Rules, 2008 provides:
"The contents of reports submitted to the Claims Tribunal in Form "A" and Form "D" by investigating police officer and concerned registering authority respectively, and confirmation under clause (b) of rule 5 by the insurance company shall be presumed to be correct, and shall be read in evidence without formal proof, till proved to the contrary".
30. Respondent no.1&2 have not proved that respondent no.1 possessed any valid driving license at the time of accident and no license possessed by respondent no.1 at the time of accident was produced by respondent no.1. Thus respondent no.3 has succeeded in proving that respondents no. 2 has committed conscious and willful breach of terms and conditions of insurance policy by permitting respondent no.1 to drive the offending 17 vehicle without holding a valid driving license.
31. In National Insurance Co.Ltd. Vs Swaran Singh and Others ,AIR 2004 SC 1531 it was held that:
"71.We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving license. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle admittedly did not hold any license and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid driving license or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving license."
32. It was further held in National Insurance Co.Ltd. Vs Swaran Singh and Others that :
"It is a one thing to say that the insurer will be entitled to avoid its liability owing to breach of terms of a contract of insurance but it is another 18 thing to say that the vehicle is not insured at all. It was further held that Subsection(5) of Section 149 which imposes a liability on the insurer must also be given its full effect. The Insurance Company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if the Insurance Company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of the assured."
33. Accordingly,respondent no. 3 being the insurer is directed to satisfy the award and is directed to deposit the award amount within a period of 30 days in UCO Bank, Patiala House Court Branch, New Delhi with interest at the rate of 7.5% per annum from the date of filing of petition till its realisation with right of recovery from respondent no. 1 and 2 i.e. driver and owner. In case of delay, it shall be liable to pay interest @ 12 % per annum. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
34. An attested copy of the award be given to the parties free of cost.
35. File be consigned to Record Room.
Announced in the open court (Harish Dudani) on 13.12.2014. Judge: MACT1 : New Delhi