Delhi District Court
Sh. Sunil Kinger @ Sunil Kumar vs Sh. Sarabjeet Singh S/O Sh.Gurbachan ... on 5 July, 2012
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IN THE COURT OF MS. PREETI AGRAWAL GUPTA:
JUDGE: MACT (OUTER1): ROHINI: DELHI
AMONGST 20 OLDEST CASES OF THE COURT:
Case No. 1380/08
Unique Case ID No. 02404CO139502006
Sh. Sunil Kinger @ Sunil Kumar
S/o Sh.Goverdhan Dass,
R/o C6/69, Lawrance Road,Delhi.
....Petitioner
Versus
1. Sh. Sarabjeet Singh S/o Sh.Gurbachan Singh
R/o B7/117,Sector3, Rohini,Delhi.
2. Chaudhary Agency,
5A/2C, Tool Sarai,
Malviya Nagar, New Delhi.
3. Hongkongs &Shanghai Banking Corpn. Ltd.
Outer Circle, Connaught Place,
New Delhi.
4. Tata AIG Insurance,
Optima Insurance Solutions,
M4, Basement Greater Kailash
PartII,New Delhi48.
....Respondents.
Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
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DATE OF INSTITUTION: 03.05.2006
JUDGMENT RESERVED ON: 03.07.2012
DATE OF JUDGMENT: 05/07/2012
AWARD:
1. The petitioner has filed the present claim petition by way of the present petition under Section 166 and 140 of the Motor Vehicle Act seeking compensation for the accidental injuries sustained by the petitioner. It is the case of the petitioner that on 27.10.2005 at about 9.00 pm, he was sitting as a pillion rider on his Scooter Registration No. DL2SD8071, which was being driven by his friend Sh. Anil Talwani on the correct side of the road and was going to his residence at Lawrence Road, Delhi and when the petitioner reached near Radha Ki Rasoi, in sector 67 Divider Road, Rohini, Delhi, he was hit by a Car bearing DL3 CQ1807 which was being driven by respondent no. 1, came from the opposite side in a very high speed and without caring for any rules and regulations and hit the petitioner who fell down on the road and sustained grievous injuries. Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:3: As a result of the, petitioner became unconscious and was taken to Ambedkar Hospital, Rohini, Delhi in a PCR. It is the case of the petitioner that the said accident occurred due to rash and negligent driving of respondent no. 1. Due to the said accident, the petitioner sustained multiple compound fracture on his right femur bone, multiple compound fracture on both lower limbs, facture on right hand besides other injuries. The petitioner remained under treatment of various specialist doctors in various hospitals.
2. It is the case of the petitioner that he is a young enterprising person and was working as a Field Sales Executive with Arora Printing Agency for the last four years and he was drawing a sum of Rs.7,000/ per month and in due course of time, his income would have been increased. In view of the nature of job and in view of the injuries which he has sustained in accident in question, future of the petitioner has been completely shattered rendering him unable to resume any field work. The accident took place solely due to the rash and negligent driving of respondent No.1. The petitioner suffered great mental pain, shock, Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:4: mental torture and agony. It is claim that the accident in question has ruined the petitioner, both physically and financially. It is contended that all the respondents are jointly and severally liable to pay compensation to the petitioner. Claim of Rs. 25 lakhs along with interest at the rate of 18% p.a is put forth by the petitioner.
3. The respondents No.1 filed written statement taking preliminary objections about maintainability and negligence of petitioner himself. On merits, the averments of the petition are denied. It is submitted that no accident as alleged took place and the respondent No.1/ driver of the alleged vehicle have been falsely implicated in this case by the petitioner, in order to extort money. However, it is further submitted that the at the time of alleged accident, the alleged offending vehicle of the respondent No.1 was insured with the respondent No.4/Insurance Company, having valid insurance policy and the respondent No.1 (driver) was having valid driving licence. The claim of petitioner is denied as being highly excessive. Further, denying other averments of the petition, it is submitted that the vehicle was duly insured Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:5: with the insurance company and as such the insurance company is liable to pay compensation to the petitioner.
4. A separate written statement has been filed on behalf of respondent no. 2, outrightly denying any responsibility towards the alleged offending vehicle on the ground that it had been sold to one Ravinder Singh on 11.10.05. It is the case of respondent no. 2 that on the day of accident on 27.10.05, he was not the owner of the offending vehicle. The claim is also denied for want of knowledge in respect of the driver of the offending vehicle/Car with the defence that the car may have been driven by the driver of the subsequent purchaser. It is denied that respondent no. 2 had any liability, whatsoever, towards the petitioner.
5. The respondent no.3 has neither put any appearance despite service nor filed any written statement in respect of the present petition. Hence vide orders dated 03.07.2006, R3 has been proceeded exparte. As regards respondent no. 3, it has been impleaded as the bank of hypothecation in respect of the offending vehicle. During the course of enquiry, respondent no. 3 has filed a statement of account Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:6: Ex.C1 whereby the entire loan in respect of the offending vehicle has been paid to respondent no.3 by way of demand draft of Rs. 75,000/ dt. 10.10.2005. There is no other averment or defence, on merits.
6. The insurance company/respondent no. 4 has filed written statement wherein it is submitted that the petition is false , frivolous and without any merits as the same is not supported by any documentary evidence. It is further alleged that the Insurance Company is not liable to pay any amount of compensation as respondent no. 2 was not having a valid permit to ply the said offending vehicle in Delhi i.e. place of accident. It is further submitted that the insurance company is not liable to pay any compensation, in case, the driver of the offending vehicle does not hold any valid and effective Driving Licence at the time of the alleged accident or any other breach. The insurance company has also disputed the present claim on merits calling for strict proof of averments upon the petitioner and that the amount of compensation claimed is very exorbitant. Further, denying other averments of the petition , it is prayed that the petition be dismissed Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:7: with costs.
7. From the pleadings of the parties, following issues were framed by my learned predecessor vide order dated 21.04.07:
1. Whether on 27.10.05 Scooter NO. DL2SD8071 was hit by Car No. DL3CQ1807 on dividing road between Sector 6 & 7 Rohini and caused injuries to petitioner?OPP.
2. Whether or not driver of the offending vehicle hold valid DL?OPR 1 & 4.
3. Whether R2 had sold the offending vehicle to Ravinder Singh on 11.10.05 if so, its effect? OPR2.
4. Whether petitioner is entitled to compensation as prayed for, if so, from which of the respondent? OPP
5. Relief.
8. The petitioner has appeared in the witness box as PW1 and has deposed in his chief examination duly corroborating the averments in the petition as regards the facts of the alleged road accident in question. He also tendered affidavit Ex.PW1/A. PW1 has tendered original Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:8: prescription slip is Ex.PW1/2, all the medical bills claiming an expenditure of Rs. 3,28,956/, discharge slip, description report, medical record and FIR etc. are Ex.PW1/3 ( running into 3 to 82 pages). PW1 has tendered his original salary certificate as Ex.PW1/1and has deposed that he suffered loss of earning to the tune of Rs. 1 lakh for inability to earn for period of one year. The petitioner has further claimed by his deposition for travelling expenditure of Rs.25,000/ and special diet expenses of Rs.30,000/. The petitioner has testified that the accident was caused due to the rash and negligent driving of respondent No.1 and also deposed that owing to the injuries sustained in the accident, he was walking with the help of stick.
9. The petitioner/PW1 has been crossexamined by respondents at length. In crossexamination by counsel for respondent no. 2, it is admitted that he has not filed the copy of MLC. Petitioner has denied any knowledge of alleged sale of offending vehicle by respondent no. 2 to Sh. Ravinder Singh, prior to the accident. The petitioner has been crossexamined regarding his income. It is denied that Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:9: the injuries suffered by the petitioner were due to any subsequent accident. It is admitted that the petitioner has consumed alcohal before the accident with further deposition that his friend Anil Talwani was driving the victim scooter at the time of accident in question. The petitioner denied the suggestion that the injuries were sustained due to his own negligence or that Anil Talwani was not driving the scooter as alleged.
10. The witness has also been crossexamined by ld. Counsel for respondent no. 4/insurance company, on all the material facts. He has deposed that his job in the said Arora Printing Agency was to sell the printing material in the market, though, he was not issued any appointment letter . The witness has deposed that he was wearing a helmet at the time of accident. The petitioner as PW1 has further deposed that there was no documentary proof to show his expenditure on special diet and conveyance and further denied that he was not been paid any commission by his employer in addition to salary.
11. PW1 has been re examined to testify on further Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:10: treatment received by him wherein he has filed the discharge slip of Vinayak Hospital, receipt and medical reports ( running into 22 sheets) as Ex.PW1/X. The petitioner was crossexamined to suggest that the petitioner was consuming the medicines without prescription from the doctor and for the period not mentioned. The petitioner denied that these bills were false and fabricated. Thereafter, petitioner closed his evidence.
12. R2W1 Sh. Ranbir Singh, Record Keeper from Transport Deptt. has deposed that the vehicle bearing no. DL3CQ1807 was registered in the name of M/s Choudhary Agencies on 31.03.2000 and remained in the name of M/s Choudhary Agencies till 26.06.2006. R2W1 has further deposed that on 26.06.2006, the said vehicle was transferred in the name of Ravinder Singh S/o Sh. Hukum Singh R/o 1574, 2nd Floor, Chiranjan Park, New Delhi. The witness has proved the certificate issued by Transport Authority, Sheikh Sarai which is Ex.R2W1/A. The witness has brought the insurance policy of vehicle in question for the period 24.02.06 to 23.02.07 which was in the name of Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:11: insured Ravinder Singh and insurer i.e. New India Assurance Company. The witness has not been crossexamined by any of the counsels.
13. R2W2 Pradeep Dabas has been examined as R2W2 who is Asstt. Ahlmad from the court of Sh. Vishal Singh , Ld. MM, Rohini Courts. The witness has proved the summoned record i.e. Complete case file of FIR No. 1054/05, PS Rohini, photocopy of charge sheet U/s 173 Cr.P.C. alongwith list of witnesses. Statement of Ravinder Singh U/s 161 CR.P.C. , seizure memo of RC of Car NO. DL3CQ1807, copy of superdarinama, copy of driving licence, order dt. 11.11.05 of Ld. MM releasing the aforesaid vehicle on superdari, application for release of superdari of vehicle and authority letter vide Ex.R2W2/A ( collectively running into 11 pages). The witness has not been cross examined by any of the counsels.
14. R4W1 Sh. Sanjay Bhardwaj. Asstt. Manager , TATA AIG General Insurance Company has proved a notice U/o 12 rule 8 CPC which was sent to the owner/insured through registered post and the office coy of Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:12: the notice and registered postal receipt are Ex.R4W1/A & Ex.R4W1/B but the notice was returned with remarks "left without address". R4W1 has proved the original registered postal cover alongwith AD card Ex.R4W1/C. Witness has deposed that company sent the notice at the last known address of owner/insured. R4W1 has produced the certified copy of insurance policy which is Ex. R4W1/D and deposed that as per their record, the driver was not having any driving licence on the date of accident and owner /insured is guilty of violation of terms and condition of the insurance policy. The witness has been crossexamined by ld. Counsel for respondent no. 2 regarding any subsequent renewal of insurance policy, any driving licence of the driver in the insurance record or any knowledge regarding the alleged sale of the offending vehicle by the insured /owner/respondent no. 2 to one Ravinder Singh. It was suggested that the offending vehicle was got released on superdari by Ravinder Singh, knowledge of which has been denied by the insurance witness. ( This suggestion is contrary to court record which shows that the offending vehicle was released on superdari Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:13: vide orders of the concerned MM in favour of the attorney of registered owner who , at the relevant time, was respondent no. 2.) He also denied any knowledge or intimation to the company regarding any alleged sale of the offending vehicle.
15. The court has thereafter, heard arguments addressed by respective counsel for parties and duly appreciated the pleadings as well as the relevant material on record. After due appreciation of the aforesaid material and arguments in light of the evidence on record and the law applicable to the facts of the case, the issue wise findings are being determined as under:
My findings on the above mentioned issues are as follows:
ISSUE NO 1: Whether on 27.10.05 Scooter NO. DL2SD8071 was hit by Car No. DL3CQ1807 on dividing road between Sector 6 & 7 Rohini and caused injuries to petitioner?OPP.
16. It is the case of the petitioner that the respondent No.1 was driving the car bearing No. DL3CQ1807 at a very high speed in a rash and negligent manner and thereby hit the Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:14: petitioner on 27.10.2005 when he was going on two wheeler scooter as a pillion rider which was being driven by his friend Anil Talwani and reached near Radha Ki Rasoi, in Sector 67, Divider Road, Rohini, Delhi. The petitioner fell down and sustained serious/grievous injuries and was first taken to Ambedkar hospital, Rohini, Delhi. Due to the said accident, the petitioner sustained multiple compound fractures on his right femur bone, multiple compound fractures on both lower limbs, fracture on right hand and other injuries. The petitioner has produced medical treatment record of Max Hospital and Vinayak Hospital where he was given hospitalised during intervening period for various medical procedures underwent by him due to injuries sustained by him in the road accident. FIR was registered against the respondent No.1/driver of the offending vehicle. The petitioner has tendered his affidavit as Ex. PW1/A and his testimony is consistent and supporting the averments in the claim petition. He has been crossexamined at length but no contradicting or inconsistent deposition could be brought forth in the testimony of the petitioner as PW1 as regards the accident in question. It is, evident from the facts Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:15: and circumstances of the case and from the evidence on record that the accident in question was caused by respondent No. 1/driver of car bearing no. DL3CQ1807 by his driving the offending car in a rash and negligent manner, thereby hitting the two wheeler scooter bearing registration no. DL2SD8071 on which, the petitioner was travelling as a pillion rider. The respondent no. 1/ accused has been charged sheeted in the criminal case where in the complainant is Anil Talwani who is stated to be the driver of the scooter on which the injured was travelling. The charge sheet has been filed duly implicating respondent no. 1 as the driver of the offending car. The perusal of the criminal case record Ex.R2W2/A clearly establishes the involvement of the offending vehicle /car which was seized during investigation and released on superdari. Therefore, there is sufficient believeable material and evidence on record to prove that the respondent no. 1 was the driver of the offending vehicle and also to prove the involvement of the offending vehicle/car in causing the accident which injured the petitioner. The testimony of PW1 is duly supported by criminal case record to prove that the offending car was being driven by respondent Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:16: no. 1 in a rash and negligent manner at the time of accident.
17. Further, perusal of medical papers Ex. PW1/3 (collectively) reveals that the petitioner was first taken to Ambedkar Hospital immediately after the road accident from where he shifted to Max Hospital Pitampura on 28.10.05, i.e, the next day of the accident and remained there for treatment and discharged on 01.11.2005. Thereafter on 27.03.2006, he was admitted for treatment at Vinayak Hospital and discharged on 28.03.2006 and thereafter, again admitted at Vinayak Hospital for two days from 07.06.06 to 09.06.06. The petitioner has further proved that he admitted at Vinayak Hospital from 25.09.07 to 26.09.2007 for removal of implants. Careful appreciation of medical record reveals detailed Orthopaedic investigation of the injured. There is no contradiction in this regard or anything to raise any suspicion over the genuineness of record of medical treatment of the petitioner.
18. In view of the afore discussed facts and reasons, It is duly proved and established that the petitioner sustained injuries from the road accident caused by the offending car in Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:17: question, which was being driven rashly and negligently by the respondent No.1. It is further evident from the medical record that grievous injuries had resulted to the petitioner, therefore issue is disposed of in favour of the petitioner. ISSUE NO 2: Whether or not driver of the offending vehicle hold valid DL?OPR 1 & 4.
19. The onus to prove this issue lies upon the respondent no. 1/driver and respondent no. 4 who is the insurer of the offending vehicle which is Car bearing No. DL3CQ1807. Respondent no. 1 / driver has filed his written statement denying the allegations and averments in the petition which are not relevant to this issue. As regards the driving licence of respondent no. 1, it is the case of the respondent no. 1 that he was holding driving licence as on the date of accident. The insurance company/respondent no. 4 has taken objections U/o 149 (2) of M.V. Act denying its liability towards the petitioner in respect of the insurance cover of the offending vehicle on the ground that there was a material breach and violation of the terms and conditions of Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:18: the insurance policy. It has been alleged by the insurer that the offending vehicle was being driven by respondent no. 1 without any valid driving licence.
20. Herein, we need not go in to the detailed legal position in respect of the liability of the insurer towards "the third party " in case of breach of the driving licence of the driver of the offending vehicle as the same is unnecessary in the facts of the case. In the present case, the respondent no. 4 has examined its witness R4W1 to prove the service of notice U/o 12 rule 8 CPC upon the owner/insurer who is respondent no. 2. As such, respondent no. 2 is also participating in the present proceedings and has filed a detailed written statement. However, it is the case of respondent no. 2 that he was not the actual owner of the offending vehicle as on the date of accident and has hence denied any knowledge in respect of the driver of the offending vehicle. The question pertaining to the claim of respondent no. 2 regarding the sale of the offending vehicle as on the date of accident shall be examined in the issue no.3 to be adjudicated separately hereinunder. For the purpose Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:19: of this issue, it is sufficiently established on record that respondent no. 1 was driver of the offending vehicle and, therefore, the question shall rest upon the actual status of driving licence of respondent no. 1.
21. The witness of insurer/respondent no. 4 in respect of notice U/0 12 rule 8 CPC was examined on 19.09.08. The insurance witness has been crossexamined whereby it has been admitted that the deposing witness did not have any record pertaining to the driving licence of the driver. It is deposed by the insurance witness R4W1 that his testimony stating that the driver/ respondent no. 1 was not holding any driving licence, as on the day of accident, was made on the basis of internal investigation report which was not filed.
22. While the present case was pending disposal at the final stage, during the course of hearing, copy of driving licence of respondent no. 1 was produced before the court on 15.04.2011. On request of counsel for insurance company/respondent no. 4, the Investigating Officer of the criminal case was directed to submit a report after Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:20: verification of driving licence of respondent no. 1. Although, the investigating officer did not comply, the compliance was obtained through the office of DCP ( Outer District) Delhi. On 20.09.2011, as per judicial record, verification report of driving licence of respondent no. 1 was filed. The appreciation of verification report issued by the Licencing Authority concerned revealed that the driving licence of respondent no. 1 was duly authorised and valid as on the date of accident on 27.10.2005. The verification report of the driving licence of respondent no. 1 has been re appreciated and the same reveals that the respondent no. 1 was holding a valid driving licence to drive the offending vehicle which is a car as on the date of accident. Despite opportunity, the insurance company /respondent no. 4 has not submitted any challenge to the verification report of the driving licence of respondent no. 1 and, therefore, from the entirety of facts and material, it stands duly established and proved that respondent no. 1 was having valid and effective driving licence to drive the offending vehicle as on the date of accident. The issue is disposed of accordingly in favour Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:21: of petitioner and respondent no. 1 & 2 and against the respondent no. 4 /insurance company.
ISSUE NO.3:
Whether R2 had sold the offending vehicle to Ravinder Singh on 11.10.05 if so, its effect? OPR2.
23. It is the case of respondent no. 2/registered owner of the offending vehicle that the offending vehicle/Car bearing no. DL3CQ1807 was sold to one Ravinder Singh on 11.10.2005. A detailed written statement has been filed by respondent no. 2 denying the actual ownership and physical possession of the offending vehicle as on the date of accident on 27.10.05. It is claimed that the respondent no. 2 had given physical delivery of the offending car to one Yogesh Batra on 24.07.05 and further claimed that the offending vehicle was sold to one Ravinder Singh by the broker on 11.10.05. The material that has come before the court shall be appreciated in this regard. One witness R2W1 has been produced from the Transport Authority concerned who has testified that the offending vehicle was transferred in the name of Ravinder Singh S/o Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:22: Sh. Hukum Singh on 26.06.2006 on the basis of documents such as Form 29 and Form 30 dt.12.06.2006. The Transport Department Record also comprises of an insurance policy in respect of the offending vehicle for the period from 24.02.06 to 23.02.07 in the name of insured Ravinder Singh with some other insurance company. The official record has not been challenged. The other witness produced by respondent no. 2 is R2W2 whereby the criminal case record has been produced and exhibited.
24. The testimony of both the witnesses produced by respondent no. 2 and the relevant record perused and have been duly appreciated. There is also one more document relevant in this regard. One of the respondent in the array of the parties is respondent no. 3 which is Hongkong & Shanghai Banking Corporation /respondent no. 3 and has been, probably, impleaded in the array of respondents being the financier of the offending vehicle having hypothecation of the ownership of the offending vehicle in its favour. However, on notice from the court, respondent no. 3/ Hongkong & Shanghai Banking Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:23: Corporation has filed the account statement Ex.C1 showing that the entire payment was received by the bank against bank draft drawn on 10.10.05. Copy of NOC dt. 12.09.05 issued by Hongkong & Shanghai Banking Corporation /respondent no. 3 which has been annexed with the written statement of respondent no. 2.
25. As on the date of accident on 27.10.05, the claim and defence of respondent no. 2 is not supported by material facts. Although, it is claimed by respondent no. 2 that the delivery of the car in question was given to one broker on 24.07.2005 and was thereafter sold to Ravinder Singh on 11.10.05 which is prior to the date of accident, the judicial record of the court of the concerned MM pertaining to the release of vehicle on superdari has been appreciated. As on 11.11.05, the superdari of the offending vehicle has been taken by one Sunil Kumar Singh as authorised representative of respondent no. 2. In this regard, an authority letter issued by one of the partner of respondent no. 2 also form part of the criminal case record, copy of which is filed before the court. However, statement U/s 161 Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:24: CPC recorded by IO also form part of the criminal case record whereby statement of Ravinder Singh has been recorded during investigation.
26. After duly appreciated the entire facts of record, as per law, respondent no. 2 continued to be registered as well as constructive owner of the offending vehicle as admittedly he was also the superdar of the vehicle as per superdaginama before the concerned Ld. MM. As per record of the transport authority, the vehicle was transferred in the name of Ravinder Singh, much later from the date of accident i.e. on 26.06.06. The insurance cover in the name of Ravinder Singh in respect of Car also commenced from 24.02.06 which is overlapping the insurance cover in question though, not relevant. It is, therefore, not established that the offending vehicle had been transferred and sold to said Ravinder Singh as on the date of accident on 27.10.2005. The issue is accordingly decided against respondent no. 2.
ISSUE NO 4: Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:25: Whether petitioner is entitled to compensation as prayed for, if so from which of the respondent? OPP
27. The petitioner has suffered grievous injuries in the accident. Chargesheet has been filed against the respondent No.1 under Section 279/338 IPC and 3/181 & 185 Motor Vehicle Act. As already discussed, it has been established later during the course of enquiry, that respondent no. 1 was having a valid driving licence to drive the offending vehicle as on the date of accident. Careful appreciation of medical record Ex. PW1/3 (collectively running into 2 to 82 sheets) and Ex.PW1/X reveals that the injured suffered multiple compound fractures on his right femur bone, multiple compound fractures on both lower limbs and fractures on right hand besides other injuries. It is adequately proved on record that the injured/petitioner suffered grievous injuries with fractures. It is also evidently clear that the injured was repeatedly hospitalised for various requisite surgical procedures in different hospitals. The petitioner first remained hospitalised at Max Hospital after he was shifted from Ambedkar hospital, very next date of the Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:26: accident for about 5 days and thereafter, underwent hospitalization of two days in March 2006 and again for three days in June 2006 at Vinayak Hospital. Petitioner also underwent the operation for removal of implants after about two years of the accident. Accordingly, the petitioner is entitled to just and reasonable compensation for the damages suffered by him.
28. The petitioner has claimed expenditure on medical treatment and medicines to the tune of Rs. 3,28,956/ and has also subsequently placed additional bills for Rs. 12,050/ vide Ex.PW1/X on reexamination. The medical treatment record and bills have been carefully appreciated and medical bills are strongly opposed on the ground that they are not supported by medical prescription. As already discussed in issue no. 1, the petitioner was repeatedly hospitalised and underwent various necessary medical procedures owing to injuries sustained by him, in the road accident in question. The medical bills filed by the petitioner have been found to be worthy of credit. However, the claim of the petitioner towards medical expenses is highly Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:27: excessive as computation includes provisional bills which have been taken care in the respective final bills of respective hospitals. After duly taking into the account of voluminous medical record, it has been found adequate and reasonable to allow the compensation on account of medical expenses of Rs. 2,00,000/ in favour of the petitioner and against the respondents. There is no evidence put forth by the petitioner to show the requirement of incurring exorbitant conveyance expenditure to the tune of Rs. 25,000/ and special diet to the tune of Rs. 30,000/. However, keeping into consideration the long period of treatment underwent by the petitioner for almost one year, a composite amount of Rs. 25,000/ is granted towards conveyance and special diet.
29. The petitioner has stated in his evidence of affidavit that at the time of accident, he was working as a Field Sales Executive and was earning Rs. 6,900/ per month. PW1 has tendered his original salary certificate as Ex.PW1/1 and has deposed that he suffered loss of earning to the tune of Rs. 1 lakh for inability to earn for period of one Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:28: year and due to accident in question, he could not do his field work and hence, suffered present and future financial losses. In the facts and circumstances of this case, the salary of the petitioner is duly proved vide Ex.PW1/1 . The claim of commission as part of the salary of the petitioner has been challenged as the same was based on actual sales by the petitioner. However, it is reasonable and prudent for a person working as Sales Executive to earn the minimum commission as his salary package as that was the least amount of output, he would be given to his employer. Therefore, the income of the petitioner is assessed @ Rs. 6,700/ per month (fixed amount Rs. 4500/ plus commission Rs. 2200/) and the same is assessed for a period of one year as the petitioner would not have been able to resume his work for one year from the date of accident as he underwent third hospitalization in June 2006 and also underwent for removal of implants after about one year three months therefrom. The loss of income for one year is calculated as Rs. 80,400/ (6700x12). The petitioner has underwent pain and agony during the period of treatment and recovery after Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:29: he suffered multiple compound fractures, therefore, a sum of Rs. 50,000/ is granted to the petitioner towards pain and sufferings.
Thus, the total compensation payable to petitioner is detailed as below:
1. Medical Expenses Rs. 2,00,000/
2. Conveyance & Special diet Rs. 25,000/
3. Loss of Income Rs. 80,400/
4. Pain & sufferings Rs. 50,000/ Total Compensation Rs. 3,55,400/
30. It is well settled law as laid down by the Hon'ble Supreme Court in AIR 2004 SC 1531 in the case titled National Insurance Company Limited Vs. Swaran Singh and Others, after taking into due consideration catena of precedents and law that the liability of the Insurance Company to satisfy the degree at the first instance and to recover the award amount from the owner/driver thereof and is the binding law of land. It was further held that in case, when the driver of the offending vehicle had a Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:30: Driving Licence, which was otherwise in proper in the facts of the case, the Insurance Company shall be liable to fulfill their statutory obligation under SubSection (1) o Section 149 of the Motor Vehicle Act.
31. It has already been discussed herein above, in issue no. 2 that respondent no. 1 was holding a valid driving licence in respect of driving the offending vehicle in question as on the date of accident. Therefore, in light of the above discussed binding law of the land, respondent no. 3, being insurer shall be vicariously liable to pay the compensation to the petitioner as the offending vehicle in the name of respondent no.2 was duly insured for third party risks at the time of accident. Compensation is payable by respondent no. 3 being insurer. The issue is disposed off accordingly.
RELIEF.
32. In view of the aforesaid discussions, the petitioner is entitled to an award in the sum of Rs. 3,55,400/ as compensation along with interest @ 9 % per annum from Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:31: the date of filing of present petition till its realization. Respondent no. 3 is directed to deposit the cheques in the name of the claimants within 30 days before this Tribunal. Petition is disposed off accordingly. File be consigned to Record Room.
ANNOUNCED IN THE (PREETI AGRAWAL GUPTA)
OPEN COURT JUDGE, MACT (OUTER1)
ON 5th day of July, 2012 ROHINI : DELHI
Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:32:
Suit no. 1380/08
05.07.2012:
Present: None.
Vide separate judgment, award is passed in favour of petitioner to a sum of Rs. 3,55,400/ as compensation along with interest @ 9% per annum from the date of filing of present petition till its realization. Respondent no. 3 is directed to deposit the cheques in the name of the claimant within 30 days before this Tribunal. Petition is disposed off accordingly.
File be consigned to Record Room.
(PREETI AGRAWAL GUPTA) JUDGE, MACT (OUTER1) ROHINI : DELHI Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.
:33: Case No. 1380/08 Sunil Kinger Vs. Sarabjeet Singh & Ors.