Delhi District Court
Judge Mact Delhi vs Shri Sanjay Son Of Shri Shiv Persad @ ... on 9 July, 2007
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IN THE COURT OF MS SHAIL JAIN
JUDGE MACT DELHI
SUIT NO 291/06
DATE OF PETITION : 30.09.05
DATE OF DECISION : 09.07.2007
1 Smt Bimlesh w/o Shri Shiv Prasad @ Rajender
r/o G-2/5, Budh Vihar Phase I Delhi
......... Petitioner
Versus
1. Shri Sanjay son of Shri Shiv Persad @ Rajender
R/oG-2/5, Budh Vihar Phase I Delhi
2. Shri Megh Raj Arora son of Shri Jaggan Nath
r/o A-30, Hari Vihar Kakrola New Delhi
Second Address
F-1368, Vishnu Garden
New Delhi
3 National Insurance Company Limited
Janakpuri Branch Koot no 360302
B-18, Ist Floor Delhi
......... Respondents
2
Suit No : 342/06
DATE OF PETITION : 20.5.06
DATE OF DECISION : 09.07.07
Smt Maha Devi w/o Shri Sumer
c/o Shri Kanwarpal Singh
r/o H-2/30, Budh Vihar Phase I Near Jai Mata Mandir
Delhi
versus
1. Sh. Sanjay
S/o Sh. Shiv Prasad @ Rajender
R/o G-2/5, Budh Vihar,
Phase-I, Delhi.
2. Sh. Meg Raj Arora
S/o Shri Jaggan Nath
R/o A-30, HariVihar
Kakrola, New Delhi
New Address:
F-1368, Vishnu Garden,
New Delhi.
3. National Insurance Co. Ltd.
Branch Janakpuri
Koot No. 360302
B-18, Ist Floor, Delhi
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JUDGMENT
By this judgment I shall dispose of two petitions bearing No. 241/06 and 342 /06 as they have arisen out of the same FIR bearing No: 257/05, Police Station DBG Road.
2. Brief facts leading to the present judgment cum award are that on 22.06.05 at about 4.a.m. the petitioners Smt Bimlesh along with Smt. Mahadevi was going from Budh Vihar to Pahar Ganj in TSR NO.DL I R G-2336 being driven by respondent No.1 in rash and negligent manner, when the TSR reached at Faiz Road crossing, all of a sudden it collided with a truck which was coming from the side of Karol Bagh as a result petitioners Smt Bimlesh and Smt. Mahadevi sustained injuries.
3. Respondent No.1 & 2 have filed the written statement in which it is submitted that when the TSR reached the Faiz Road crossing the truck which was coming from the side of Karol Bagh was being driven rashly and negligently because of which the 4 accident occurred and petitioner Smt. Bimlesh and Smt. Mahadevi sustained injuries. The number of the truck could not be noted because of darkness.
4. Respondent no 3 ie insurance company has filed the written statement. It is stated that the amount claimed by petitioner is excessive, exorbitant. If it is held that driver of the offending vehicle was not holding proper and effective driving license at the time of accident, respondent No.3 is not liable to pay the compensation to the petitioner. The petition is bad for misjoinder of necessary parties and is liable to be dismissed. As per the FIR the accident if any has taken place only because of the rash and negligent driving of a truck the respondent No.3 being the insurer of the TSR is not a necessary party. It is stated that offending vehicle was insured vide policy No: 361801/31/04/670000891 for the period from 26.10.04 to 25.10.05.
5. Out of pleadings of the parties, the following issues were 5 framed by my Ld Predecessor :-
1 Whether petitioners Smt. Bimlesh and Smt. Mahadevi sustained injuries in the road accident on 22.06.05 because of rash and negligent driving of TSR NO: DL-1RG-2336 by respondent No.1?
2. Whether respondents are not liable to pay any compensation to the petitioner for the reasons given by them in their respective written statements?
3. Whether the petitioner is entitled to receive any compensation if so to what amount from whom?
4. Relief.
6. In petition no 291/06 petitioner Mrs Bimlesh has examined herself as PW1 who has narrated the allegations of petition and proved the documents from Ex.PW1/1 to EXPW1/45. PW2 Dr. R.K. Midda from Avantika Hospital has stated that he had treated and operated the petitioner Smt. Bimlesh on 27th June 6 2005. The treatment record of Smt. Bimlesh is Ex. PW2/1 to Ex.PW2/10. The bills are from Ex. PW1/1 to Ex.PW1/13 and Ex. PW1/21. In petition bearing no. 342/06 petitioner Mahadevi has herself appeared as PW1. She has narrated the allegations of petition and relied upon the documents from ExPW1/1 to ExPW1/4. PW2 HC Harvind has proved the copy of the FIR as ExPW2/1.
7. Respondent no 3 has examined one witness SI Parshant from Police Station DBG Road, New Delhi who is Investigating Officer of the FIR No: 257/05. He has further stated that case was sent as untraced and as per the statement the accident had taken place due to sole negligence of unknown truck.
8. Thereafter the matter was listed for final arguments as the evidence of the parties had already been closed. Learned counsel for the parties had advanced arguments.
9. I have considered the evidence led by the parties, 7 arguments advanced by Ld counsel for parties and the other material on record. After considering the same my issue wise findings are as under:
ISSUE NO 1
10. The case of the petitioner is that on 22.06.05 at about
4.a.m. petitioners Smt. Bimlesh and Smt. Mahadevi were going in TSR NO.DL- I R G-2336 and when they reached at Faiz Road all of sudden a truck came from the side of Karol Bagh and hit the TSR due to which both petitioners sustained injuries. As per the FIR the challan has been filed as untraced as details of the truck were not known. The petitioner has stated that TSR driver was equally negligent in driving the vehicle, although petitioner has been silent at the time when the police case was filed and also pleaded before the police in respect of the negligence of the truck driver only. But the fact that case has been registered against unknown truck driver and the TSR driver who is son of Bimlesh 8 has not been made accused in the criminal case does not hold the petitioner's right to claim compensation against the driver, owner and Insurance Company of the other vehicle involved in the accident . As accident was caused due to composite negligence of both the drivers, and the petitioner is at liberty to file the petition for compensation claim against any one or both the vehicles. Therefore, I am of the opinion that both the petitioners sustained injuries due to rash and negligent driving of TSR NO.DL I R G- 2336 driven by respondent no 1. Hence issue no 1 is decided in favour of the petitioners ISSUE NO 2
11. Onus to prove this issue was on the respondents. Respondent no 1 and 2 ie driver and owner of the offending vehicle ie TSR has not led any evidence. However insurance company has examined SI Prashant, IO of the criminal case. By examining the investigating officer insurance company has tried to 9 prove that accident was caused due to sole negligence of unknown truck and only for taking compensation petitioners have wrongly pleaded the TSR which was being driven by Bimlesh son of petitioner .
12. I have carefully considered the evidence as led by the parties. In view of my finding on issue no 1 it is observed by me that merely because the petitioners have not stated anything against the TSR at the time of lodging of FIR, it does not mean that driver of TSR was not negligent. Further it is also to be noted that at the time of recording of FIR both petitioners ie Smt Bimlesh and Smt Mahadevi were declared unfit for the statement by the doctor of Lady Harding Hospital. Since the accident had occurred due to use and involvement of both vehicles ie unknown truck and TSR, petitioners are at liberty to file petition against any one of them. Therefore respondent no 1 and 2 being driver and owner and respondent no 3 being insurer of the offending vehicle 10 are jointly and severally liable to make the payment of compensation to petitioners. The issue no 2 is decided accordingly. ISSUE NO 3 Compensation in petition no. 291/06
13. Petitioner Smt Bimlesh was taken to Lady Harding Hospital at 4a.m on the date of accident. As per the documents petitioner was admitted in Avantika Hospital at 11p.m. on 22.06.05 till 03.07.05. There is overwriting in the date of discharge in discharge summary.
14. From careful perusal of document ExPW2/2 it is clear that in Avantika Hospital there is no Orthopedic doctor at Panel whereas the injuries claimed to have been suffered by the petitioner are fracture of right illiac Blade and fracture of left clavicle and fracture of both bones of right forearm. As per the letter head of the Avantika Hospital document ExPW2/2, on which treatment given to the petitioner has been written, only Dr N 11 Aggarwal is Orthopaedician. But he is not a doctor on Panel of Avantika Hospital, and only a doctor on call. But in the discharge summary name of consultants has been mentioned as Dr R K Midha, Dr Anil Aggarwal and Dr R K Jain. Out of these three doctors none is Orthopaedicians, whereas injury suffered and treatment alleged to have been given to petitioner requires expert knowledge. As per discharge summary ExPW2/1, petitioner has undergone DCP Plating under Brachial Block. This surgery cannot be performed by any doctor other then Orthopedic but no such Orthopedic has treated the petitioner, as is clear from the discharge summary.
15. Further it is important to note that as per discharge summary petitioner Bimlesh has suffered fracture of both bone of forearm whereas the record filed and tried to be proved by petitioner relate to various other injuries which does not find mention in the discharge summary at all. I will discuss each and 12 every document filed by petitioner separately:
The document ExPW2/3 dt 23.6.05 is in respect to the CT Scan of head of petitioner whereas no head injury was alleged by petitioner to have suffered.
The document ExPW2/4 dt 12.07.05 is the report of X- ray but does not mention what fracture or bony injury is being suffered by the petitioner. Further in this document sex of petitioner is mentioned as male whereas petitioner is female. Therefore it appears to be procured document.
ExPW2/5 which is also dt 23.06.05 again the X-ray report in respect to the hip and left shoulder of petitioner, mentions the fracture of right Illiac blade and fracture of left clavicle, although as per discharge summary she has not been treated for these fractures. Even these fractures are not mentioned in the discharge summary ExPW2/1.
The document ExPW2/7 to ExPW2/10 are other 13 investigation reports and Ultrasound abdomen of petitioner but they are all within normal limits.
The document ExPW1/32 is again the CT Scan of head which was conducted on 6.07.04. ie much prior to the accident.
The document ExPW2/2 is OPD card of dt 4.7.05 which is in original and photocopy of the same has been exhibited as ExPW1/31. In this document doctor concerned has not mentioned the history of patient or injury suffered by patient or petitioner. Even the name of the doctor who is giving the prescription is not mentioned.
Again ExPW1/34 dt 3.8.05 is photocopy of the prescription with no details of history/injury of petitioner and the purpose for which the medicines have been prescribed. Other then these documents, no medical record has been placed on record, petitioner has also placed on record various bills of medicines but bills placed on record do not match medicines prescribed by the 14 doctor firstly and secondly since the injury for which medicines have been prescribed to petitioner are not clear , therefore the bills filed on record cannot be believed.
16. The petitioner has filed on record the bill for the sum of Rs39,950/- of Avantika Hospital which appears to be vague as it mentioned the cost of operation of Rs6,000/- per bone and Rs12,000/- for two bones has been charged as surgeon fee. I am of the opinion that this is not the way of charging the operation fee in any hospital in Delhi.
17. After considering the bills and medical record as filed by petitioner it is also important to see that insurance company has examined SI Prashant who is Investigating Officer of the criminal case and Investigating Officer has filed the original file of criminal case record. After perusal of the criminal case record it is clear that Investigating Officer has recorded the statement of Smt Bimlesh on 30.06.05 at her residence in Budh Vihar and not in the 15 Avantika hospital. Whereas as per discharge summary petitioner was admitted in the hospital till 3.7.05. This statement of petitioner recorded by Investigating Officer clearly shows that the medicines bills and the record filed by petitioner are false and bogus.
18. It is also important to note, at this stage, that Investigating Officer has filed along with criminal case record the original MLC wherein the nature of injury mentioned for the petitioner Bimlesh is "SIMPLE". Once the injury suffered by petitioner is opined to be simple by the Lady Harding Hospital, where the petitioner was taken immediately after accident, it is unimaginable how the petitioner had suffered serious injuries like fracture of of right Illiac Blade and fracture of left clavicle and other injuries as tried to be proved by the petitioner.
19. In view of my above discussion I am of the opinion that petitioner has not suffered any injury in this case except some abrasion on body due to the impact of accident but in order to 16 claim higher amount of compensation from the insurance company, petitioner has filed the present case. Since the petitioner has not come to the court with clean hands and has tried to deceive and misled the Tribunal for getting more and more compensation, petitioner does not deserve the concession granted by the social legislation ie Motor Vehicle Act. I am of the opinion that petitioner is not entitled to any compensation under these circumstances. Hence the petition no 291/06 titled as Bimelsh vs Sanjay is dismissed.
Compensation in petition no. 342/06
20. Although it is mentioned in the document ExPW1/2 ie OPD card of Sanjay Gandhi Memorial Hospital that petitioner Maha Devi had suffered fracture of right tibia of lower end but this document is dt 29.06.05 whereas the accident had occurred on 22.06.05. There is no treatment record of petitioner from 22.6.05 till 29.06.05. On 22.06.05 in MLC as prepared by lady Harding 17 Hospital, there is no mention of fracture and MLC as filed in original by the Investigating Officer as ExR3W1/X the nature of injury suffered by petitioner was simple. No contrary evidence to this effect has been led by petitioner. Therefore I have to believe that injuries suffered by petitioner was only simple. No medical bills have been placed on record by petitioner. Although the petitioner has claimed that she has spent more then Rs50,000/- on her treatment. Considering the fact that petitioner Smt MahaDevi has suffered minor injuries in the accident, a token sum of Rs10,000/- is awarded to petitioner.
21. The respondent no 1 and 2 have not examined any witness. Respondent no 3 has examined only Investigating Officer of the case. Respondents have not led any evidence to the effect that they are not liable to pay any compensation to petitioner. Therefore respondent no 1 being driver, respondent no 2 being owner and respondent no 3 being insurer of the offending vehicle 18 are jointly and severally liable to make the payment of compensation to petitioner.
RELIEF
22. In view of my findings the petition titled as Smt Bimlesh vs Sanjay is dismissed. In petition titled as Maha Devi vs Sanjay, the award is passed. Petitioner is granted a sum of Rs10,000/- with interest at the rate of 6% per annum from the date of filing of petition ie 20.5.06 till its realization. Respondent no 3 is directed to place on record the cheque of compensation within 30 days in petition no 342/06. Copy of the order be given dasti to retainer of insurance company for compliance. File be consigned to Record Room.
ANNOUNCED IN (SHAIL JAIN)
OPEN COURT JUDGE MACT DELHI
TODAY
DATED 09.07.07
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