Delhi District Court
Jagdev Singh vs . Jagjeet Singh on 10 October, 2012
-:1:-
Jagdev Singh Vs. Jagjeet Singh
IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
TRIBUNAL01, DWARKA COURTS, NEW DELHI
MACP No.: 951/07
Sh. Jagdev Singh
S/o Sh. Jagphool Singh
R/o RZ200, Dharampura,1,
Near Kakrola Road,
Hanuman Mandir,
Najafgarh, New Delhi.
........Petitioner
Versus
1 Sh. Jagjeet Singh
S/o Late S. Jaspal Singh.
R/o Nazir Bagan, Kolkata, (West Bengal)
2 M/s Tata Motors Ltd.
Jamshedpur831010 (Jharkhand)
3 New India Assurance Co. Ltd.
5th Floor, TowerII, Jeevan Bharti Bldg,
124, Connaught Place, New Delhi.
.......Respondents
1. Date of institution : 14/09/2005
2. Date of framing of issues : 25/03/2008
3. Date of hearing arguments : 28/09/2012 MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:2:- Jagdev Singh Vs. Jagjeet Singh
4. Date of decision : 10/10/1012 AWARD/ JUDGMENT:
(INJURY CASE) 1 Brief facts of the case are that on 12.03.2005 Sh. Jagdev Singh (Petitioner herein) was a pedestrian. At about 6.30 p.m on that day when he reached near Krishna Dhaba NH2 road under the P.S Chhata (Mathura), he was hit by a Truck/Chasis bearing registration no. JH05A/4544/Q/05 (hereinafter offending vehicle) which was being driven by Respondent no.1(in short R1) with fast speed in rash and negligent manner after coming from behind, owned by respondent no. 2 (in short R2) and the same was insured with respondent no. 3 (in short R3). As a result of which, he fell down on the road and sustained multiple injuries including grievous . He was removed to Mangla Hospital, Arya Nagar, Koshi Kalan, Mathura (U.P) for treatment from the place of accident and later he was shifted to GTB Hospital, Shahadra, Delhi for further management. 2 Pursuant to the service of the notice of the claim petition, R1 & R2 did not appear therefore, they were proceeded ex parte vide order dated 29.10.2007 and 28.02.2006 respectively, however, R2 was allowed to file his WS after recalling the order of exparte vide order MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:3:- Jagdev Singh Vs. Jagjeet Singh dated 06.02.2010. R2 in its WS had denied the factum and manner of the accident pleading that he has no concern whatsoever with the alleged accident or the claim petition in any manner. An imaginary amount has been claimed without any basis.
3. This petition had been resisted by the R3/Insurance company after filing a separate written statement stating therein that insurance company is not liable to pay any amount of compensation until and unless it is proved that R1 of the offending vehicle was holding a valid and effective driving licence at the time of the accident. However, it has been admitted that the offending vehicle was insured with R3 vide Policy no. 121400/31/04/10/0000527 which was valid during the period 01.01.2005 to 31.12.2005 in the name of R2 subject to the terms and conditions of the policy . An exorbitant amount of compensation is alleged to have been claimed without any justification.
4 On the basis of pleadings of the parties, issues were framed on 25/03/2008.
5 Having heard the rival contentions advanced on behalf of both the sides and after perusal the material including evidence on record, my issue wise findings are as under: ISSUE NO 1:
MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:4:- Jagdev Singh Vs. Jagjeet Singh Whether the petitioner sustained injury in the road accident on 12.03.05 involving motor vehicle no. JH 05A/4544/Q/05 Temporary Registration Chesis number, being driven by R1 in rash and negligent manner, owned by R2 and insured with R3?
....OPP 6 The onus to prove this issue was on the petitioner. PW 1 Jagdev Singh in order to discharge the same had narrated the sequence of the accident on oath in paragraph 1 of his affidavit Ex.
PW 1/A to show the manner of the accident. His deposition has not been controverted by the R1 & R2 as they chose to stay away from the proceedings and no question was put to him on the aspect of negligence. However, he was crossexamined on behalf of the insurance company but nothing adverse came out so as to discredit his statement on the version given by him regarding the manner of driving the offending vehicle. Even otherwise, he was the natural eye witness being the injured of the accident, therefore I find no reason to disbelieve her testimony.
7 Besides this, he has proved the criminal record viz. FIR Ex. PW1/1, copy of the complaint made to SHO P.S Chhata, Distt,. Mathura Ex PW 1/2. Besides this, certified copy of the charge sheet along with the copy of the complaint are available on record to MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:5:- Jagdev Singh Vs. Jagjeet Singh establish the factum of the accident.
8 In Bimla Devi and others Vs. Himachal Raod Transport Corporation and others (2009) 13 SC 5 13, it has been observed that in a road accident, the strict principles of poof as in a criminal case are not attracted. Relevant portion of the judgment is reproduced as under: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
9 The aforesaid proposition of law has again upheld by the Hon'ble Apex Court in Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No. 1082 of 2011) 10 Having regards to these facts and circumstances, I am of the opinion that petitioner has been able to establish that accident did take place due to negligence of driver of the offending vehicle on the MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:6:- Jagdev Singh Vs. Jagjeet Singh given date, time and place.
11 Issue No.1 is decided in favor of the petitioner accordingly.
12 In view of the above discussion this issue is decided in favour of the petitioner and against the respondents. ISSUE No 2:
Whether the petitioner is entitled for compensation, if so, what amount and from whom?
.....OPP
13 As issue no.1 is decided in favor of the petitioner in affirmative, petitioner is entitled for the compensation. Quantum of the compensation however, is required to be calculated. 14 It has been held in a catena of judgments by Hon'ble Apex Court and various High Courts that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. It has been held in a number of judgments that general principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. In examining the question MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:7:- Jagdev Singh Vs. Jagjeet Singh of damages for personal injury, pecuniary or nonpecuniary damages are required to be taken into account.
15 Before I, calculate the amount of compensation , it would be appropriate to incorporate the observations made by the Hon'ble Supreme court in R.D. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755. It was observed as under :
"In injury cases it is not easy to assess the amount of damages. The same can however be based on some element of guess work and some amount of sympathy linked with the nature of disability. However all such elements are required to be viewed with objective standard. While assessing the damages the court can not base its opinion merely on speculation or fancy though conjectures to some extent are inevitable. Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages.
Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:8:- Jagdev Singh Vs. Jagjeet Singh damages are those which are incapable of being assessed by arithmetical calculations. Pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning or profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of expectation of life, ie. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
16 In view of above, in order to calculate the amount of compensation, the sum is required to be considered under the various heads as delineated above by Hon'ble Apex Court.
(a) MEDICINES & TREATMENT:
17 PW1 deposed that immediately after the accident , he was
MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh
(Pages 1- 21)
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Jagdev Singh Vs. Jagjeet Singh
removed to Mangla hospital, Arya Nagar, Koshi Kalan, Mathura (U.P) for treatment and thereafter he was shifted to GTB Hospital, Shahdara, Delhi on 13.03.2005 where his MLC Ex. PW 1/6 was prepared . In an accident, he was stated to have sustained the following grievous injuries i.e amputation in right fifth little toe, fracture left bone of metacarpal thumbs, Injury on head, fracture backbone & ribs and fracture left hand finger and suffered disability of 30% but no disability certificate has been placed / proved on record to substantiate the said averments. A sum of Rs.60,000/ is stated to have been spent on treatment but he has been able to prove the medical bills with the documentary evidence to the tune of Rs.7373/. Bill stands proved Ex. PW 1/4 .
18 Perusal of record, it reveals that petitioner must have spent over and above the amount of Medical bills on his treatment but I award a sum of Rs.7373/ against the bills actually proved towards medicines and treatment.
(b) LOSS OF INCOME: 19 The petitioner had averred in his affidavit that he was a
driver in Delhi Transport Corporation and getting Rs.10,386/ per month. Due to the injuries, he could not resume his duties for about 6 months. Salary certificate stands proved as Ex. PW 1/12. Since MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:10:- Jagdev Singh Vs. Jagjeet Singh nothing contrary to salary certificate has been shown, produced or proved by the Insurance company therefore, the same has to be acted/relied upon.
20. Considering the facts and circumstances and coupled with the nature of injuries sustained by the petitioner, I am of the considered opinion that he must not have been in a position to attend his working patterns at least for a period of 4 months.
21. I, therefore, award a sum of Rs. 41,544/ to the petitioner towards 'loss of income' for six months.
c) PAIN & SUFFERINGS: 22 Pain and suffering is covered under non pecuniary damages. To calculate the same, nature of injuries sustained by the injured, duration during which he got the medical treatment and was confined to bed, are some of the factors which are required to be taken into account.
23 In the present case it is apparent from the medical record proved by the petitioner that he had sustained grievous injuries and the mental agony which the petitioner might have undergone at the time of accident, cannot be equated or quantified in terms of money. Physical pain which the petitioner must have undergone during the course of treatment would have been immense. It has been specifically averred MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:11:- Jagdev Singh Vs. Jagjeet Singh in the affidavit that the petitioner was unable to work as a driver for considerable long time.
24 To compensate the petitioner under this head, I award a sum of Rs.40,000/ to the petitioner for pain and sufferings.
d) CONVEYANCE & SPECIAL DIET : 25 PW1 during the course of his deposition has failed to
substantiate the amount spent by him on conveyance and special diet with documentary evidence, however considering the nature of injuries sustained by him, he would have paid repeated visits to the hospital / doctor for his follow up treatment incurring expenses on conveyance. He must have required to take special diet to recover from the injuries sustained by him.
26 I, therefore, award a sum of Rs 20,000/ to the petitioner towards Conveyance and special diet.
27 Keeping in view the nature of injuries and evidence available on record, following amount shall be just compensation: 1 Medicines & Treatment : Rs. 7,373/ 2 Pain and Sufferings : Rs. 40,000/ 3 Loss of Amenities : Rs. 20,000/ 4 Conveyance & Special Diet : Rs. 20,000/ 5 For Loss of income : Rs. 41,544/ ________________________________________________________ MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:12:- Jagdev Singh Vs. Jagjeet Singh Total = Rs. 1,28,917/ (Rupees One Lac, twenty eight Thousand, nine hundred and seventeen only) INTEREST 28 The petitioner is awarded interest @ of Rs 7.5 % from the date of filing of the petition i.e. 14/9/2005 till realization. LIABILITY 29 Ld. counsel for the insurance company laid much stress while contending that since the insured has failed to produce the original license of the driver (R1) despite the service of notice u/s 12 rule 8 CPC, thus, the court can presume that the driver of the offending vehicle did not have a valid and effective licence on the date of accident. To support his contention, he relied upon the statements of Sh. Charandeep Singh, Administrative Officer of M/s. New India Assurance Company Ltd., R3W1, Sh. V.K. Grover Senior Manager Auto Risk Management Services Pvt. Ltd. as R3W2 and Sh. Sibajit Ghosh Investigator from Distt. 24 Pargana North, West Bengal as R3W3. During the course of deposition of R3W1 had stated that D/L of R1 was handed over to the investigator to find out its genuineness. He proved the report of the Investigator vide letter dated 27.11.2006 as Ex.R3W1/A. He further stated that a notice U/o 12 Rule 8 CPC was MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:13:- Jagdev Singh Vs. Jagjeet Singh sent to R1 and R2 through registered post. Copy of the notice sent to R1 is Ex. R3W1/B. Postal receipts of the notice sent to R1 are Ex. R3W1/C and Ex. R3W1/D. The undelivered register letters are Ex. R3W1/E and Ex. R3W1/F. Copy of the notice U/o 12 Rule 8 CPC sent to R2 is Ex. R3W1/G. Postal receipts of the same is Ex. R3W1/H. R2 was duly served with the notice vide AD Card Ex. R3W1/I. Copy of the policy is Ex. R3W1/J. Notice was neither replied nor responded by R2. During the deposition of R3W2, he stated that D/L of R1 was got verified through Kolkata Office. He proved the authority letter issued in his favour Ex. R3W2/A and copy of letter dated 12.07.2010 received by his company is Ex. R3W2/B. R3W3 Sh. Sibajit Ghosh had stated that on receipt of the letter from the Insurance company he went to the office of licensing authority, Kolkata to verify the D/L bearing no. WB4079/99/LMV/HMV in the name of Jagjit Singh. He further stated that he was informed by the officials of the licensing department that they had started issuing computerized number of the Driving licenses after 1994 with computerized first code number such as WB01 and the issuance of the manual Driving licenses were stopped thereafter. He further stated that he had got the verification report of the D/L of R1 already Ex. R3W1/A. He proved the copy of the application dated 15.09.2010 moved to the licensing authority MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:14:- Jagdev Singh Vs. Jagjeet Singh Kolkata as Ex. R3W3/A. He proved the photocopy of the D/L of Jagjit Singh Ex. R3W3/B. He also stated that presently authority is processing Smart Card Number. He also proved his hand written report dated 17.09.2010 as Ex. R3W3/C. Ld. Counsel for the Insurance company has argued that since the offending vehicle was being driven in breach of the terms and conditions of the Insurance Policy and accordingly the insurance company cannot be held liable to make the payment of any amount of compensation.
30. The onus rests upon the insurance company to prove the breach of the terms of the policy in order to avoid its liability. Though three witnesses had been examined to substantiate the breach of the policy but the same requires close scrutiny. On carefully scrutinizing the evidence led on behalf of the insurance company, it makes clear that neither any verification report with regard to the D/L of R1 duly signed by the competent officer of the licensing authority Kolkata along with stamp filed nor any official from the office of the Kolkata Licensing Authority has been examined. Rule 7 of the Delhi Motor Accident Claims Tribunal Rules 2008 stipulates that verification report would be per se admissible in evidence, if the same is sent directly to the Tribunal on the request of either of the party. On reading of the testimony of the investigator Sibajit Ghosh R3W3, it MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:15:- Jagdev Singh Vs. Jagjeet Singh appears that his report with regard to D/L of R1 is based upon oral conversation between him and the official of the authority which is inadmissible in evidence being hearsay. I am of the considered opinion that the insurance company has failed to establish its defence sought to be raised U/S 149 of the Motor Vehicle Act and as such, it cannot avoid its liability. MAC Appeal no. 727/2011 Bajaj Alliance General Insurance Co. Ltd. vs. Bhikari Yadav & Ors decided on 03.01.2012 by our own Hon'ble High Court is relied upon. Relevant paragraph 19 is reproduced as under : "A similar question came up for consideration before the Supreme Court in Kamala Mangalal Vayani & Ors. V. United India Insurance Co. Ltd. & Ors., (2010) 12 SCC 488, it was held that it was open to the insurer to apply to the Transport Authority concerned for a certificate to show the date on which the permit was granted and that on the date of the accident the vehicle did not have a valid permit. Paras 6, 7 and 8 of the report are extracted hereunder :
6. As noticed above, the ownercumdriver had remained ex parte. Once it was established that the vehicle was comprehensively insured with the insurer to cover the passenger risk, the burden to prove that it was not liable in spite of such a policy, shifted to the insurer. The claimants are not expected to prove that the vehicle had a valid permit, nor prove that the owner of the vehicle did not commit MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:16:- Jagdev Singh Vs. Jagjeet Singh breach of any of the terms of the policy. It is for the insurer who denies its liability under the policy, to establish that in spite of the comprehensive insurance policy issued by it, it is not liable on account of the requirements of the policy not being fulfilled.
7. In this case, the insurer produced a certified copy of the proceedings of the Registering Authority and Assistant Regional Transport Authority, Bangalore, dated 7.7.1990 to show that the application for registration of the vehicle filed by the third respondent was rejected with an observation that it was open to the applicant to apply for registration in the appropriate class. But that only proved that on 7.7.1990, the vehicle did not have a permit. But that does not prove that the vehicle did not have a permit on 27.7.1990, when the accident occured. It was open to the insurer to apply to the concerned transport authority for a certificate to show the date on which the permit was granted and that as on the date of the accident, the vehicle did not have a permit, and produce the same as evidence. It failed to do so.
8. The High Court committed an error in MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:17:- Jagdev Singh Vs. Jagjeet Singh expecting the claimants to prove that the vehicle possessed a valid permit. We are of the view that there was no justification for the High Court to interfere with the judgment and awards of the Tribunal in the absence of relevant evidence."
20. For the aforesaid reasons, it is clear that the Insurance Company has failed to prove that there was breach of the policy conditions. The Insurance Company, therefore, could not avoid liability."
MAC Appeal no. 648/2012 The New India Assurance Co. Ltd. vs. Suresh Kumar & Ors decided on 01.06.2012 is also relied upon vide which the appeal was dismissed in limine. Relevant paragraph is reproduced as under : " 5. While holding that the Appellant failed to prove the breach of the terms of the policy, the Claims Tribunal observed as under : "60. No witness was examined from District Transport Authority, Amritsar to show that the license was fake. No one was examined who had been District Transport officer sign the report of investigator to prove signatures of District Transport Authority.
61. Reliance can be placed on Bajaj Allianz General Insurance Company Ltd. vs. Bhikhari MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:18:- Jagdev Singh Vs. Jagjeet Singh Yadav, MAC APP. no. 727/2011 dated 3.1.2010 in this regard. In that judgment Hon'ble High Court of Delhi has held in para 6 as under : "It is settled that in order to avoid the liability the onus on the Insurance Company to prove that there is breach of the policy conditions by the insured. The breach committed by the insured will be willful e.g where the insured entrusted a vehicle to a duly licensed driver and it is unlawfully driven by any other person not holding a valid and effective driving license, it cannot be said that the owner is guilty of willful breach. Similarly, where a vehicle is stolen by a thief holding no license and meets with an accident, it cannot be said that the insured is guilty of a willful breach. Rather, the insured himself is a victim."
62. In para no.18, it was held as under : " In any case, the contents of the certificates can be presumed to be genuine it has to be proved that it is signed by the District Transport Officer, Gawahati. That having not been done, the certificate was not of any value and the same was not rightly taken into consideration by the Tribunal. Since the insurance MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:19:- Jagdev Singh Vs. Jagjeet Singh company failed to discharge the onus that the driving license held by the first Respondent was fake, it cannot avoid its liability."
31. Admittedly the offending vehicle was being driven by R1 which was owned by R2 and the same was insured with R3 and hence, R1 is the principal tort feasor and R2 and R3 are vicariously liable. All the respondents are held jointly and severally liable to pay the awarded amount. Since the offending vehicle was insured with the R3, therefore it shall pay the awarded amount.
32. In view of the above discussions, issue no. 2 is decided in favour of the petitioners and against the respondents. ISSUE No. 3.
Relief.
33 In view of findings on issues no. 1 and 2, this issue is also decided in favour of the petitioner and against the respondents . The petitioner is awarded Rs. 1,28,917// (Rupees One lac twenty eight thousand nine hundred seventeen only) with interest @ 7.5% annum from the date of filing of the petition till realization.
34. The awarded amount be deposited by R3 with State Bank of India, Dwarka Court Complex Branch, Sector10, New Delhi within MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:20:- Jagdev Singh Vs. Jagjeet Singh 30 days from today. Upon the aforesaid amount being deposited, SBI Branch is directed to release half of the amount with interest to the petitioner by transferring the same to his Saving Bank Account after keeping the remaining amount in a fixed deposit for one year in his name.
35. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Account of the beneficiary.
36. Withdrawal from the aforesaid account shall be permitted to the beneficiary after due verification and the Bank shall issue photo Identity Card to the beneficiary to facilitate identity.
37. No cheque book shall be issued to the beneficiary without the permission of this Court.
38. The original fixed deposit receipts shall be retained by the Bank in the safe custody. However, the original Pass Book shall be given to the beneficiary along with the photocopy of the FDRs. Upon the expiry of the period of each FDR, the Bank shall automatically credit the maturity amount in the Savings Account of the beneficiary.
39. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court.
40. On the request of the beneficiary, Bank shall transfer the MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21) -:21:- Jagdev Singh Vs. Jagjeet Singh Savings Account to any other branch according to his convenience.
41. The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account.
42. R3 shall inform the petitioner through registered post that the cheque of the awarded amount are being deposited so as to facilitate the petitioner to collect his cheque.
43. Copy of the award be supplied to both the parties at free of cost.
44. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT DATED: 10/10/2012 (AMAR NATH) PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL, DWARKA COURTS, NEW DELHI.
ALL PAGES SIGNED MACP No. 951/07 Sh. Jagdev Singh Vs Jagjeet Singh (Pages 1- 21)