Delhi District Court
Mohd. Abdullah Sheikh vs Guddu on 27 January, 2007
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IN THE COURT OF SH. A.S. YADAV, PO-MACT,
PATIALA HOUSE COURTS, NEW DELHI.
PETITION NO.:- 579/04 (Old Petition No. 1077/2000)
DATE OF INSTITUTION:-15.4.99
IN THE MATTER OF:-
Mohd. Abdullah Sheikh,
S/o Mohd. Farooq Sheikh,
R/o H. No. 408, Block F-2,
Sangam Vihar, New Delhi-62.
...Petitioner
Versus
1. Guddu,
S/o Babu Ram,
R/o H. No. 217-A, Ram Nagar,
Dehradun (UP).
2. Jasvinder Singh,
S/o 7/20, Masjid Road,
Bhogal, New Delhi-14.
3. The oriental Insurance Company Ltd.,
Head Office at: A-25/27, Asaf Ali Road,
New Delhi-2.
...Respondents
Arguments heard on : 24.1.2007 Date of decision: 27.1.2007 AWARD This claim petition is filed by Mohd. Abdullah Sheikh in respect of the injuries sustained by him in an accident which took place on 17.4.98.
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2. In brief the case of the petitioner is that on 17.4.98 at about 11PM, he was travelling in a Maruti car bearing no.DAQ- 6274. He was sitting in the dicky of the car and when he reached near Sarai Kale Khan bus stand, the car was hit on the back side by a dumper/truck bearing no. DIG-4894. At that time, the car was stationary at red light signal. As a result of forceful impact, he sustained injuries. The other occupants of the car also sustained injuries. It is further averred that in the accident he suffered fracture shaft femur ( L ) and fracture both the bones of left leg, which ultimately resulted into 40% permanent disability. He has claimed compensation of Rs.25,50,000/-.
3. R1 is the driver, R2 is the owner and R3 is the insurer. R1 and R2 in the WS has not disputed the factum of accident. However, they took a plea that accident was caused due to the negligence of petitioner himself who alongwith other persons was sitting in the dicky of the Maruti car and the dicky was kept open. The driver of the car applied the brakes all of a sudden, as a result the truck touched the Maruti car. It is further averred that had the petitioner not been sitting in the dicky he would not have received the injuries. R3 has not disputed the fact that offending truck was duly insured with it at the time of accident.
4. NEGLIGENCE In order to prove negligence on the part of R1, petitioner 3 testified that the car was hit on the back side by truck bearing no. DIG- 4894. The same was driven rashly and negligently. All the occupants of the car received injuries. He was taken to Holy Family hospital and after first aid , he was transferred to Pentamed hospital, Gujrawala Town. He proved that a case FIR no. 162/98 was registered against the driver of the offending truck on the statement of driver of the Maruti car. In the FIR, it is specifically stated that Rakesh Kumar was driving the Maruti car and in the Maruti car , Alam, Raees, Hussain and Abdullah were sitting. Abdullah was sitting in the dicky of the car. Meaning thereby that only Five persons were going in the car. Ld. Counsel for insurance company submitted that accident was caused due to the negligence of petitioner. Had he not been sitting in the dicky of the car the accident would not have taken place. He further submitted that in fact four persons were sitting in the dicky of the car besides the other persons sitting in the car, which is solely responsible for the accident. He has referred to the statement of the driver of truck, Guddu (R3W1), who testified that there were 6 persons in the Maruti car and then stated that four persons were sitting in the dicky and other persons were sitting inside the car. He further testified that he did not notice if any goods were loaded in the car. Even from his statement only six persons were sitting in the car. It is next to impossible that four persons were sitting in the dicky of the car. It is specifically mentioned in the FIR that only petitioner was sitting in the dicky of the car and had four persons sitting in the dicky with their legs hanging outside , then all of 4 them would have received the injuries on the their legs as has been received by the petitioner. Only the petitioner was sitting in the dicky. It is submitted by Ld. Counsel for Insurance company that in the Maruti car besides driver, only four persons can sit but in this case, six persons were sitting including the one in the dicky which is the sole cause for the accident. I do not find any force in the submission of Ld. Counsel for insurance company. The Maruti car was hit when the same was stationary. It has nothing to do with the petitioner sitting in the dicky of the car.
5. Reference is placed on the case of Saroj vs. New India Assurance Co. Ltd., 2005 ACJ 906. In that case 8 persons were travelling in the vehicle whereas the carrying capacity was of four persons plus driver. Insurance company was held liable as there was no evidence on record that accident took place on account of overloading. It is also useful to refer to the case of National Insurance Co. Ltd. vs. Hansi Bisht, 2005 ACJ 794. In that case, the bus was insured for 25 passengers and 51 passengers were travelling but insurance company was held liable. Reference is also placed on the case of National Insurance Co. Ltd. vs. Reena Devi, 2005 ACJ 1306 wherein insurance company took the defence that the bus was carrying passengers more than the prescribed or permitted seating capacity is available to the insurance company. It was held that it might be a 5 breach of condition of registration certificate or route permit only. The insurance company was held liable. The para 9 of the judgment is reproduced as under:
"9. Whether carrying of passengers more than the prescribed or permitted seating capacity is a ground, which can be taken by an insurer to absolve itself of its liability to pay has to be decided only with reference to the conditions finding a mention in clauses (a) and (b) of sub- section (2) of Section 149 of the Act. The legislature has very advisedly limited the grounds of defences only to such breaches of specified conditions of the policy which the legislature itself has mentioned in clauses (a) and (b) of sub- section (2) of Section 149 of the Act. In clause
(a), there are as many as four situations which are related to a condition excluding the use of vehicle as well as the condition excluding the driving of the vehicle by an unauthorised person or a condition excluding liability for the injury caused or contributed by conditions of war, civil war, riot or civil commotion. Similarly, in clause
(b), the legislature has advisedly laid down and prescribed that an insurer is entitled to defend the action if the policy of insurance is avoid on the ground that it was obtained by non-
disclosure of a material fact for by a representation of a fact which was false in any material particular. It is, therefore, manifestly clear that the overloading of a bus even though it might be a breach of a condition of the registration certificate or the route permit, yet cannot be made the basis of a defence by an insurer because such a breach does not find any mention in either clause (a) or clause (b) of Sub- Section (2) of Section 149 of the Act. By now, through a catena of pronouncements of law by various judgments of the Apex Court it has conclusively been established that an insurer is entitled to avoid its liability to pay only it its defences fall within the ambit of Sub-section (2) of Section 149 of the Act and that an insurer, otherwise than by Section 170 of the Act, cannot be permitted to traverse beyond these limited 6 defence available to it under section 149 (2) of the Act."
It is proved that ultimately a charge sheet was filed against the driver of the offending truck for committing an offence U/s 279/337/338 IPC. The fact that petitioner was sitting in the dicky which is not meant for the purpose of sitting has contributed towards the injuries sustained by him. In my opinion, there was contributory negligence on the part of petitioner to the extent of 30%. It is proved from the disability certificate, Ex. PW1/B that petitioner suffered 40% permanent physical impairment.
6. COMPENSATION It is well settled law that in case of injuries the damages are to be assessed as pecuniary damages and as non-pecuniary damages.
7. It is proved on record that in the accident petitioner suffered fracture of shaft femur (L) and also the fracture in both the bones of his left lower leg which resulted into the shortening of left leg. He suffered 40% permanent disability. Petitioner in his affidavit stated that earlier he used to earn Rs. 3000/- per month but after the accident on account of shortening of his leg he is unable to stand properly on his feet. He further testified that he spent approximately a sum of Rs. 7 58,924/- on medicines. He also stated that doctor has given an estimate of Rs. 30,000/- for future operation for removal of nails which are still in place at two places in his leg vide certificate dated 5.9.05. The same is Ex. PW1/C. Petitioner has failed to prove any document to show that he was earning Rs. 3000/-per month. In the absence of that, the income of the petitioner is to be seen as per minimum rates of wages prevalent at the relevant time. At the relevant time, the minimum rates of wags used to be Rs. 1937/-per month. Since, he has suffered 40% disability, the loss on account of disability comes out to be Rs.774/- per month. He was 20 years of age at the time of accident. As per second schedule, the appropriate multiplier is 16. Hence, the loss on account of disability comes out to be Rs. 774X12X16=148608/-.
8. The petitioner has proved on record the bills amounting to Rs.58,924/-. I award the petitioner a sum of Rs.59,000/- for medicines/treatment. I also award the petitioner a sum of Rs.3000/- towards conveyance and a sum of Rs.5000/- towards special diet.
9. The left leg of the petitioner is shortened. Naturally all throughout the life he will have to walk with a limp. I award the petitioner a sum of Rs.30,000/- towards pain and sufferings.
10. The total compensation amount comes out to be 8 Rs.245608/-. Since petitioner is responsible for contributory negligence to the extent of 30%, hence I award a sum of Rs.171906/-(inclusive of interim award of Rs.25,000/-passed on 15.2.01) with interest @ 6% p.a from the date of filing of the petition i.e 15.4.99 till realisation in favour of the petitioner and against respondents on account of their liability being joint and several.
11. Since the vehicle in question was duly insured with R-3, The Oriental Insurance Co. Ltd., R-3 is directed to deposit compensation amount within one month and in case of delay future interest will be deducted from the salary of the employee of respondent no.3, who will be responsible for the delay.
Order dictated and announced (A.S. YADAV) in the open court on 27th January, 2007 Judge/MACT/ New Delhi