Delhi District Court
Sh.Suraj Gupta vs )Sh.Guddu Kumar on 17 September, 2014
1
IN THE COURT OF SH. HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.348/13
DATE OF INSTITUTION:16.5.2013.
SH.SURAJ GUPTA
S/O SH.SURESH LAL GUPTA
R/O PRESENT ADDRESS:
S46, SCHOOL BLOCK
SHAKARPUR,DELHI92.
PERMANENT ADDRESS
HOUSE NO.114, DHARMSHALA BAZAR
P.S.GORAKH NATH
GORAKHPUR,UP. PETITIONER
Versus
1.)SH.GUDDU KUMAR
S/O SH.SURENDER PRASAD
R/O H.NO.3,MAVI MOHALLA
VILLAGE TEHKHAND
OKHALA INDUSTRIAL AREA
PHASEI,NEW DELHI.
2.)SH.TODAR MAL
S/O SH.SHARDHANAND
R/O H.NO.236, TEHKHAND
OKHLA, NEW DELHI.
3.)THE NEW INDIA ASSURANCE COMPANY LTD.
OFF.:1215,12TH FLOOR
NAURANG HOUSE 21 CO
KASTURBA GANDHI MARG,NEW DELHI. RESPONDENTS
2
Final Arguments heard on : 03.09.2014 Award reserved for : 17.09.2014 Date of Award : 17.09.2014 AWARD
1. Vide this judgment cum award I proceed to decide the claim 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 28.3.2013 the petitioner was driving his motorcycle No.HR99NK5421 and was going from Vasant Kunj to Laxmi Nagar, Delhi and at about 9pm he reached at Prithvi Raj Road, Aurangzeb cut, New Delhi and a Maruti car bearing No.DL1LS0323 being driven by respondent no.1 in rash and negligent manner hit the motorcycle of petitioner as a result of which petitioner fell down and sustained injuries. The petitioner was taken to RML hospital.
3. It is stated that the petitioner was 25 years of age at the time of accident and he was working as Account Assistant with M/s Scorpio Hotelier & Habitat Pvt.Ltd. Off.Building No.9, Local Shopping Centre, SectorB, PocketI, Vasant Kunj, New Delhi110070 and was earning Rs.16,000/ pm. It is stated that the accident occurred due to rash and negligent driving of the offending vehicle by respondent no.1,the driver, the vehicle was owned by respondent no.2 and insured with respondent no.3 and as 3 such all respondents are jointly and severally liable to pay compensation. It is prayed that Rs.Five Lacs alongwith interest @ 12% per annum be awarded as compensation in favour of petitioner and against the respondents.
4. Respondent no.1&2, driver and owner have not filed reply to the claim petition despite opportunities.
2. Respondent no.3, insurance company has filed reply in the DAR and has contested the claim petition. It is admitted that the offending vehicle was insured with respondent no.3. Other averments on merits are denied.
5. From the pleading of the parties following issues were framed on 15.2.2014.
1.Whether the petitioner sustained injuries in the accident which occurred on 28.3.2013 at about 9pm at P.R.Road,Auranzeb Lane cut, New Delhi caused by rash and negligent driving of vehicle no.DL1LS0323 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3?OPP.
2.Whether the petitioner is entitled for compensation?If so, to what amount and from whom?
3.Relief.
6. In support of his claim the petitioner examined himself as PW1. PW1 tendered in evidence his affidavit Ex.PW1/A and proved his PAN card and election identity card Ex.PW1/1(colly.), discharge report and prescriptions Ex.PW1/2(colly.), copy of bills mark A, appointment letter 4 Ex.PW1/3(colly.), termination letter Ex.PW1/4, pay slips Ex.PW1/5(colly.), copies of his education certificates Ex.PW1/6(colly.), his photograph Ex.PW1/7, copy of his D/L Ex.PW1/8 and bills Ex.PW1/9.
7. Respondent no.3 examined Sh.Mahender Kumar, Deputy Manager, New India Assurance Co.Ltd.,1/2, Asaf Ali Road, New Delhi110002 as R3W1. R3W1 tendered in evidence his affidavit Ex.R3W1/A and proved copy of insurance policy Ex.R3W1/A, copy of notice u/o 12 rule 8 CPC alongwith postal receipts Ex.R3W1/B(colly.).
8. I have heard the Ld. counsel for the parties and perused the record. My findings on specific issues are as follows:
ISSUE NO.1
9. As the claim 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.DL1LS0323.
10.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 Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it 5 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."
11.The case of the petitioner is that on 28.3.2013 the petitioner was driving his motorcycle No.HR99NK5421 and was going from Vasant Kunj to Laxmi Nagar, Delhi and at about 9pm he reached at Prithvi Raj Road, Aurangzeb cut, New Delhi and a Maruti car bearing No.DL1LS0323 being driven by respondent no.1 in rash and negligent manner hit the motorcycle of petitioner as a result of which petitioner fell down and sustained injuries. The petitioner was taken to RML hospital. It is stated that case vide FIR No.29/2013, u/s 279/337 IPC was registered at PS Tughlaq Road. The petitioner appeared in the 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 the claim petition. Respondent no.1 and 2 have neither filed reply nor they have preferred to put any question to petitioner/PW1 in the cross 6 examination. In the cross examination by respondent no.3, PW1/petitioner has stated that at the time of accident speed of his motorcycle was about 4050kmph and the offending vehicle had hit on the right side of his motorcycle and he was wearing helmet at the time of accident. PW1/petitioner denied the suggestion of respondent no.3 in the cross examination that the accident took place due to his rash and negligent driving of motorcycle. Although in the cross examination of PW1/petitioner respondent no.3 has given suggestion to the effect that the accident took place due to his rash and negligent driving but apart from giving suggestion, 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 copy of statement of petitioner on the basis of which asal tehrir was prepared,copy of FIR no.29/13, u/s 279/337 IPC, PS Tughlaq Road, copy of site plan, copy of final report u/s 173 CrPC, copy of seizure memo of offending vehicle, copy of seizure memo of motorcycle, copy of seizure memo of registration certificate of offending vehicle, copy of arrest memo of respondent no.1, copy of mechanical inspection report of offending vehicle, copy of mechanical inspection report of motorcycle, copy of MLC of petitioner prepared at RML hospital. As per FIR the case was registered on the basis of complaint of petitioner wherein he has 7 reiterated the manner of accident as stated in the claim petition. As per final report u/s 173 CrPC respondent no.1 has been chargesheeted for the offences u/s 279/337 IPC. Respondents have not proved any other version of the accident. Thus in view of the testimony of petitioner and documents on record, the negligence of respondent no.1has been prima facie proved. Issue no.1 is accordingly decided in favour of the petitioner and against the respondents.
ISSUE NO.2
12.As the negligence of driver of offending vehicle has been proved the petitioner is entitled to compensation.
COMPENSATION MEDICINES AND MEDICAL TREATMENT
13.The case of the petitioner is that after the accident on 28.3.2013 he was taken to RML hospital from where he was discharged on 29.3.2013 and thereafter he has taken further treatment from RML hospital, Som Datt Medical Centre, S524, School Block, Shakarpur, Delhi110092 and Dr.K.B.Tiwari. The petitioner has filed treatment record Ex.PW1/2(colly.) which consists of discharge report prepared at RML hospital, prescription slips of Dr.K.B.Tiwari, OPD cards of RML hospital and medical record of Som Datt Medical Centre. As per diagnosis on the discharge report of RML hospital, the petitioner has suffered soft tissue injury with right 8 shoulder dislocation. The petitioner has filed medical records of Som Datt Medical Centre on which date of registration of petitioner is mentioned as 16.4.2011 and as per the said medical record, the petitioner had taken consultations from orthopedician on 16.4.2011 and was advised xray left elbow and as per the consultation record of 19.4.2011 the petitioner had suffered fracture of radius left and as per the said medical record of Som Datt Medical Centre, the petitioner has taken consultation from eye specialist on 5.11.2011,12.11.2011, 31.12.2011 and on 31.12.2011 the petitioner has taken consultation from physician also and again on 10.1.2012 the petitioner has taken consultation from orthopedician and on 7.11.2012 and 15.11.2012 the petitioner had consulted eye specialist and again on 8.7.2013 the petitioner had consulted orthopedician and he was advised xray and the petitioner has also filed the xray report dated 8.7.2013 which is to the following effect :
XRAY SHOULDER JOINT APRT SIDE Joint space is reduced.
Articular margins are normal.
No other bony lesion is identified.
BOTH WRISTS AP & LAT VIEWS Intercarpel and other joint spaces are mildly reduced. Articular margins are normal.
No other bony lesion is identified.9
14.As per medical record of Som Datt Medical Centre, the petitioner had consulted phsychiatrist on 8.7.2013, 22.7.2013 and physiotherapist on 10.7.2013. As per the discharge report of RML hospital the petitioner has suffered soft tissue injury with right shoulder dislocation. Alongwith AIR police has filed copy of MLC of petitioner prepared at RML hospital on which nature of injuries suffered by petitioner is mentioned as simple. The police has filed copy of final report u/s 173 CrPC as per which respondent no.1 has been chargesheeted for the offences u/s 279/337 IPC i.e. for causing simple injuries on the person of petitioner. The petitioner has not proved that he has suffered any grievous injuries in this accident. As per medical record of Som Datt Medical Centre filed by petitioner, the petitioner had suffered fracture head radius in April 2011 and the present accident had taken place on 28.3.2013. Hence it is not open to the petitioner to plead that he has suffered fracture in this accident. Petitioner has not proved by any cogent evidence that he has suffered grievous injuries in this accident. The petitioner has filed medical bills Ex.PW1/9(colly.).Bill dated 8.7.2013 of Rs.50/ issued by Som Datt Medical Centre is in respect of psychiatrist consultation and it has not been proved that the same is in respect of the injuries sustained in this accident. Petitioner has not filed any other original bills and in the absence of original bills the treatment having being taken free of cost or 10 reimbursement of the medical expenditure by any other insurance or any other authority cannot be ruled out. In the circumstance petitioner is awarded Rs.961/ towards admissible bills.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
15.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 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."
16.The case of the petitioner is that after the accident on 28.3.2013 he was taken to RML hospital from where he was discharged on 29.3.2013 and thereafter he has taken further treatment from RML hospital, Som Datt Medical Centre, S524, School Block, Shakarpur, Delhi110092 and Dr.K.B.Tiwari. The petitioner has filed treatment record Ex.PW1/2(colly.) which consists of discharge report prepared at RML hospital, prescription slips of Dr.K.B.Tiwari, OPD cards of RML hospital and medical record of 11 Som Datt Medical Centre. As per diagnosis on the discharge report of RML hospital, the petitioner has suffered soft tissue injury with right shoulder dislocation. Alongwith AIR police has filed copy of MLC of petitioner prepared at RML hospital on which nature of injuries suffered by petitioner is mentioned as simple. As per final report u/s 173 CrPC driver has been charge sheeted for the offences u/s 279/337 IPC i.e. for causing simple injuries on the person of petitioner. Moreover as per the treatment record of Som Datt Medical Centre filed by petitioner, the petitioner had suffered fracture in April 2011 i.e. much before this accident. The petitioner has not proved that he has sustained any grievous injuries in this accident. Looking at the nature of injuries sustained by the petitioner and extent of treatment the petitioner is awarded a sum of Rs.15,000/for pain and suffering.
17. It is stated that petitioner was a young man of 25 years of age at the time of accident and on account of injuries sustained, he may not have been able to perform his duties towards his family and may not be able to enjoy the amenities of life. Hence, petitioner is awarded Rs.5,000/ towards loss of amenities of life.
12CONVEYANCE AND SPECIAL DIET
18.In para 6 of his affidavit Ex.PW1/A, the petitioner has stated that he has spent about Rs.70,000/on his treatment, medicines, special diet, conveyance etc. The petitioner has not specified the amount spent by him on conveyance. The contention of counsel for respondent no.3 is that the petitioner has not proved that he incurred expenditure on conveyance. Although the petitioner has not adduced any cogent evidence to prove that he spent any specific amount on conveyance, however notice can be taken of the fact that after accident on 28.3.2013 he was taken to RML hospital from where he was discharged on 29.3.2013 and thereafter he has taken further treatment from RML hospital, Som Datt Medical Centre and Dr.K.B.Tiwari and after discharge from the hospital and for subsequent treatment, the petitioner might have hired the services of private conveyance/ambulance as he may not have been able to drive of his own or to use public conveyance and might have incurred expenditure on the same. In the circumstances a sum of Rs.5,000/ would be just and proper for conveyance and is awarded accordingly.
19. In para 6 of his affidavit Ex.PW1/A, the petitioner has stated that he has spent about Rs.70,000/on his treatment, medicines, special diet, conveyance etc. The petitioner has not specified the amount spent by him on special diet. The contention of counsel for respondent no.3 is that the 13 petitioner has not proved that he was advised special diet. Although the petitioner has not proved that he was advised special diet and has incurred expenditure on the same, however, looking at the nature of injuries sustained by 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.5,000/ towards special diet. LOSS OF INCOME
20. In the claim petition the petitioner has stated that at the time of accident he was 25 years of age and was employed as Account Assistant with M/s Scorpio Hoteliers & Habitat Pvt.Ltd. and was earning Rs.16000/pm. In para 7 of affidavit Ex.PW1/A also the petitioner has stated that he was working as Account Assistant with M/s Scorpio Hoteliers & Habitat Pvt.Ltd.and was earning Rs.16,000/pm and due to the accident and displacement of bone at right shoulder he was unable to continue with his job and suffered heavy financial loss. In order to prove his employment, the petitioner has filed on record the appointment letter dated 18.12.2012 Ex.PW1/3 and pay slips for the month of February and March 2013 Ex.PW1/5(colly.). The contention of petitioner is that on account of this accident the petitioner could not continue with his duties and his services were terminated and termination letter dated 29.8.2013 is Ex.PW1/4. The 14 contention of counsel for insurance company is that the petitioner has not proved his employment by summoning any record from his employer and that he was earning Rs.16,000/pm. The petitioner has not summoned any records from M/s Scorpio Hoteliers & Habitat Pvt.Ltd. in order to prove that that appointment letter Ex.PW1/3 was issued by the said organisation and in pursuance of same, the petitioner joined the services of said organisation at the salary of Rs.16,000/pm and the petitioner was paid salary during the period of employment by M/s Scorpio Hoteliers & Habitat Pvt.Ltd. The petitioner/ PW1 admitted in cross examination that in the letter Ex.PW1/4 it is not mentioned that his services were terminated on account of this accident. The accident has taken place on 28.3.2013 and as per letter Ex.PW1/4, the services of petitioner were allegedly terminated on 29.8.2013 i.e. after more than five months of accident and as per MLC of petitioner prepared at RML hospital the petitioner has suffered simple injuries and as per treatment record filed by petitioner Ex.PW1/2(colly.), the petitioner had taken treatment lastly from RML hospital on 23.5.2013 and thereafter he took orthopaedic consultations from Som Datt Medical Centre on 8.7.2013 and subsequently he has taken consultation from psychiatrist on 8.7.2013 and 22.7.2013 and consultation from physiotherapist on 10.7.2013. Petitioner has failed to prove his employment and income by cogent evidence and that his 15 services were allegedly terminated on account of injuries sustained in this accident. In the circumstances the income of petitioner shall be taken as per his qualification. In para 8 of affidavit Ex.PW1/A, the petitioner has stated that he is a graduate. The petitioner has filed on record copy of B.Com.degree issued by Deen Dayal Upadhayay Gorakhpur University, Gorakhpur as per which petitioner passed B.Com. in the year 2007. The income of petitioner shall be taken as Rs.9594/pm which were minimum wages of graduate w.e.f.1.10.2012.
21.In para 7 of affidavit Ex.PW1/A, the petitioner has stated that due to the accident and displacement of bone at right shoulder , he was unable to continue with his job and suffered heavy financial loss. In the aforesaid discussions it has been held that the petitioner has failed to prove his employment and that his services were terminated on account of this accident. The contention of counsel for insurance company is that the petitioner has not proved that he was advised rest for any specific period and suffered financial loss. The petitioner has filed treatment record of RML hospital and as per OPD registration card of RML hospital 11.4.2013, the petitioner was advised rest for two weeks. The petitioner has not proved that thereafter he was advised rest for any specific period. As per OPD card of RML hospital dated 23.5.2013, the petitioner was advised review after two weeks. The petitioner has not proved that after 16 advise of rest for two weeks on 11.4.2013, he was advised further rest for any specific period. However looking at the nature of injuries sustained by the petitioner, it can be presumed that the petitioner might not have been able to attend his avocation for a period of two months. Consequently loss of income of petitioner is assessed as Rs.9594/x2=Rs.19188/.
22.The petitioner has not proved that he has suffered any permanent disability or the nature of injuries sustained by him was 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.961/
Pain and suffering and loss of
Amenities of life : Rs.20,000/
Conveyance and Special Diet : Rs.10,000/
Loss of Income : Rs.19188/
TOTAL : Rs.50149/
RELIEF
23.The petitioner is awarded a sum of Rs.50149/(Rs.Fifty Thousand One Hundred Forty Nine) alongwith 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 17 amount be released to the petitioner.
24.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.
25.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.
26.The respondent no.3 shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimants 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 25.11.2014.
18APPORTIONMENT OF LIABILITY:
27.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 Sh.Mahender Kumar, Deputy Manager of insurance company as R3W1 who adduced evidence by way of affidavit Ex.R3W1/A. In para 3 of affidavit Ex.R3W1/A it is stated that the driver of the offending vehicle was not holding the driving license at the time of accident. R3W1 stated in his examination that notices u/o 12 rule 8 CPC Ex.R3W1/B(colly.) were sent to respondent no.1&2 but despite notices u/o 12 rule 8 CPC, respondent no.1&2 have not produced any valid driving license possessed by respondent no.1 at the time of accident. Respondent no. 1&2 have preferred not to cross examine R3W1. The testimony of R3W1 to the effect that respondent no.1 was not holding valid driving license at the time of accident and respondent no.1&2 failed to produce any valid driving license possessed by respondent no.1 at the time of accident despite notice u/o 12 rule 8 CPC 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 279/337 IPC & 3/181 MVAct. Hence 19 respondent no.1 has been chargesheeted for driving the offending vehicle at the time of accident without effective and valid driving license.
28. 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".
29.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. Respondent no.2 has also not testified that he had seen the valid driving license of respondent no.1 at the time of handing of offending vehicle to respondent no.1 for the purpose of driving. Respondent no.3 has succeeded in proving that respondent no.2 committed willful and conscious breach of terms and conditions of insurance policy by permitting respondent no.1 to drive the offending vehicle who did not possess valid driving license.
30.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 20 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.
31.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.
32. An attested copy of the award be given to the parties free of cost.
33.File be consigned to Record Room.
Announced in the open court (Harish Dudani) on 17.09.2014. Judge: MACT1 : New Delhi