Delhi District Court
Sh. Rajesh Kumar S/O Lt. Sh. Hira Lal vs Nidhi Verma D/O Sh. N.S. Verma on 4 October, 2007
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IN THE COURT OF SH. PRADEEP CHADDAH :JUDGE:MACT
ROHINI: DELHI
PETITION NO: 124/06
DATE OF INSTITUTION: 04.04.05
DATE OF ARGUMENTS: 22.09.07
DATE OF JUDGMENT: 04.10.07
1. Sh. Rajesh Kumar S/o Lt. Sh. Hira Lal
R/o B-53, Nehru Vihar,
Delhi-54. .....Petitioner
VERSUS
1. Nidhi Verma D/o Sh. N.S. Verma
R/o C-2/116-A, Lawrance Road,
Delhi.
2. Dr. N.S. Verma
R/o C-2/116-A, Lawrance Road,
Delhi.
3. United India Insurance Co. Ltd.
A-1 , Tagore Market, Kirti Place
Kirti Nagar, Delhi-15. .......Respondents
AWARD
1. Petitioner Sh. Rajesh Kumar instituted the present Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 1 Of 15 : 2 : petition seeking compensation for the injuries caused to him in a roadside accident against Ms. Nidhi Verma, Dr. N.S. Verma and United India Insurance Co. Ltd.
2. The present petition was filed u/s 166 and 140 of the M.V. Act. Subsequently it was amended to section 163-A of the M.V. Act . Case of the petitioner as per the petition is that on 25.09.04 at about 2 pm , petitioner was going towards Kingsway Camp Chowk. He saw a girl standing near car no. DL-8CB-8646. Smoke was coming out of the car. Suddenly there was a blast and car caught fire. Petitioner tried to escape, but his face, chest and hand got burnt. His left hand was fractured. The accident had occurred due to rash and negligent driving of the vehicle by Respondent no. 1 who did not keep the car in proper condition. The car was fitted with CNG illegally. He had suffered great pain and mental agony. He sought compensation amounting to Rs. 5 lacs from the three respondents who were owner, driver and insurer of the offending car.
Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 2 Of 15 : 3 :
3. Respondent no. 1 and 2 in their written statement denied case of the petitioner. They claimed that this tribunal had no jurisdiction to try the petition. Due to short circuit , smoke started coming out of the car on 25.09.04 at about 2 pm. It then caught fire. A passers-by on his own opened the bonnet of the car and suffered burn injuries. So petitioner was not entitled to maintain the present petition. They claimed further that the car was being driven on petrol and was insured with Respondent no. 3. In reply on merits , it was reiterated that car was totally burnt due to short circuit. There was no negligence on the part of Respondent no. 1 in maintaining the car. The car was in proper running condition. The car had not caught fire due to CNG. Dismissal of the petition was prayed for .
4. Respondent no. 3 M/s United India Insurance Company Ltd. in its written statement also denied petitioners case. It claimed that at the time of accident , vehicle was not in motion . It was stationery . It was not liable to pay any compensation. Driver did not hold proper driving licence. However, it admitted that the Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 3 Of 15 : 4 : vehicle was insured in name of Respondent no. 2 from 03.04.04 to 02.04.05 . It prayed for dismissal of the petition.
5. On the basis of the pleadings, my learned Predecessor framed following issues on 24.04.06.
(1) Whether on 25.09.04 at about 2 pm, at Mudrika Bus stop , Kingsway Camp Chowk, petitioner suffered injuries because of negligent driving of Car no. DL-8CB-8646 by R-1?
OPP.
(2) Whether petition is not maintainable as there was no accident arising out of use of motor vehicle? OPR-1&2. (3) Whether petitioner is entitled to compensation as prayed for, if so from which of the Respdt?
(4) Relief.
6. I have heard learned counsels for the parties. My
finding on the issues is as follows:
7. ISSUE NUMBER ONE AND TWO:
Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 4 Of 15
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Since issue number one and two are interrelated , I propose to dispose of them together. Petitioner Rajesh Kumar in support of his case , claimed that on 25.09.04 at about 2 pm, he was going from Mudrika bus stand towards Kingsway Camp. On the way, he saw a car no. DL-8CB-8646. Smoke was coming from its engine. A girl was standing near it. Suddenly there was a blast and the car caught fire. He tried to escape but suffered burn injuries. His left hand was also fractured. He was taken to Hindu Rao hospital. Petitioner also examined record clerk from Hindu Rao hospital who testified about his MLC. The witness claimed that petitioner was admitted in the hospital on 25.09.04 at about 2.30 pm. Respondent no. 1 Nidhi Verma also entered the witness box as RW-1. She also examined her father as RW-2. Nidhi Verma in her testimony claimed that on 25.09.04, she reached near Kingsway Camp in car no. DL-8CB-8646. Due to short circuit smoke started coming out from the car. She stopped the car and it caught fire. At that time, a passer-by on his own, opened the bonnet and sustained some Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 5 Of 15 : 6 : injuries. She is not to be blamed for the injuries caused. Her father Respondent no. 2 testified that he was owner of car no. DL-8CB- 8646. His daughter had taken the vehicle for attending classes in British School of Language.
8. Now, we have before us two conflicting versions. According to the petitioner, while he was going towards Kingsway Camp Chowk , there was blast in a car and it caught fire. In the process , he sustained injuries. According to Respondent no. 1 , there was short circuit in the car and it had caught fire. According to learned counsel for the insurer, petitioner had suffered injuries because of his own negligence. He was not a qualified mechanic. He should not have fiddled with the vehicle while the driver lady stood away at a distance.Petitioner in his cross-examination denied the suggestion that he had forcibly opened the bonnet of the car which was already on fire. I find on record, copy of statement recorded by the IO of the petitioner. In his statement, it has been mentioned that he had voluntarily opened the bonnet and sustained injuries. Petitioner Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 6 Of 15 : 7 : further in his cross-examination claimed that his statement had not properly been recorded and he had filed a complaint in this regard with Commissioner of Police. His statement had not been recorded properly by SI Bakshi Singh. He sought action against police officials who had incorrectly recorded his statement and driver of the vehicle. He also made a complaint to Chief Minister of Delhi and Vigilence Bureau of Delhi Police.
9. As such there is nothing before the court on the basis of which it should come to conclusion that petitioner tried to open bonnet of the car on his own and fiddled with the engine. There is no reason why court should place reliance on the statement recorded by the sub-Inspector and disregard subsequent complaints made by the petitioner to senior police officials and Chief Minister of Delhi. All documents on court file indicate the extent of injuries suffered by the petitioner on 25.09.04.
10. According to learned counsel for respondent, the vehicle at the time of accident was not in use . It was standing Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 7 Of 15 : 8 : stationery. Respondent no. 1 driver of the vehicle had parked the car upon seeing smoke emerging from its engine. So according to learned counsel for the insurer, insurer was not liable to compensate as the vehicle was not in use. I would submit that there are large number of judgments of various superior courts which have held to the contrary. In case titled as Shivaji Dayanu Patil Vs. Vatschala Uttam More (1991) 3 SCC 530, there was collusion between a petrol tanker and truck. The tanker overturned and the petrol leaked out on the spot. After sometime an explosion took place and many people who had assembled nearby sustained injuries and died. Hon'ble Court held that the word "use" has to be construed in a wider sense to include the period when the vehicle is not moving and is stationery, being either parked on the road or is unable to move due to some break down and some mechanical defect. So it could not be said that the tanker was not in use at the time when it was lying on its side after collusion with the truck. In a case, even when death of passenger was caused , when container Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 8 Of 15 : 9 : of petrol caught fire in the bus from a carelessly thrown bidi by some passenger, it had been held that accident had arisen out of use of motor vehicle.
11. Coming back to the facts of the case in hand , Respondent no. 1 had parked the vehicle upon seeing smoke emerging from the engine. It cannot be said that the vehicle was not in use at that time. Petitioner who happened to be passing by suffered injuries because of explosion in the engine.
12. It is a settled law that court can take recourse to section 163A and grant relief in cases of death or permanent disability even if rash and negligent driving is not proved. Here petitioner suffered permanent disability of 30%; so even if Respondent no. 1 driver of the vehicle was not at fault still court is competent to grant relief to the petitioner. I, therefore, hold that petitioner suffered injuries on 25.09.04 at about 2 pm on Kingsway Camp Chowk because of explosion in car no. DL-8CB-8646. I further hold that petition was very much maintainable as the Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 9 Of 15 : 10 : accident had arisen out of use of motor vehicle. The issue is decided accordingly in favour of petitioner and against the respondents.
13. ISSUE NUMBER THREE:
Every victim of roadside accident is entitled to receive compensation in terms of money. The amount of compensation is of help to the victim to avail better medical treatment. It also helps them to recoup their losses and the expenditure which had been incurred . Compensation is granted under three heads:
(I) Compensation for injury and pain;
(II) Compensation for expenses incurred on medical treatment
;
(III) Compensation on account of loss of amenities and general damages.
14. Compensation for injury and pain:
Petitioner suffered fractures and burns. His disability has been Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 10 Of 15 : 11 : assessed as 30%. It would have been very painful and inconvenient to have undergone all this. Let him be paid Rs. 20,000/- for pain and injury.
15. Compensation for expenses incurred on medical treatment:
After the accident, petitioner was taken to Hindu Rao hospital. He had spent money on his treatment. He placed on record certain bills. If we total them up, we find that they are in the sum of Rs. 8,641/-. He also claimed to have spent money on special diet and conveyance amounting to Rs. 25,000/-. There normally are no receipts regarding expenses on special diet and conveyance but it is in common knowledge that people do tend to spend money on special diet after meeting with serious accident. He and his family members would have spent money on conveyance because during his long spell of hospitalization , he would not have been left all alone. Some or the other family member of his, would have remained with him 24 hours of the day. Let him be paid Rs. Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 11 Of 15 : 12 : 10,000/- towards expenditure on special diet and conveyance.
16. Compensation on account of loss of amenities and general damages:
Petitioner suffered 30% permanent disability. He was 35 years old as per disability certificate and so multiplier of 16 shall apply to the facts of the case. He was a three-wheeler driver by profession. As he is a three-wheeler driver by profession, he would not have been rendered total incapable of driving the TSR which he used to. He still would be in a position to drive his vehicle though with some difficulty. While awarding compensation for permanent disability court must bear in mind profession of the claimant as well as nature of injuries. In some cases, even if claimant suffers 50-60% permanent disability, his ability to work can come totally to an end.
In other cases, disability may not be of such nature which may completely disable him from following his vocation. In the present case, though the doctors assessed disability of the petitioner at 30% , he did not become Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 12 Of 15 : 13 : totally incapable of driving TSR and earning his livelihood. For the purpose of awarding compensation, I scale down his disability to 15%. There is nothing on record to substantiate his income or educational qualification. Government of Delhi prescribes minimum wages which are payable from time to time of various categories of workman. As petitioner was a driver by profession, he can be treated as skilled workman. Skilled workman was entitled to minimum wages of Rs. 3318.90 as on 01.08.04. By applying multiplier of 16 , we arrive at figure of Rs. 6,37,228.80. 15% of the said amount comes to Rs. 95,584.32. This can be taken as loss of earning for the petitioner.
17. Now, we have to see upon whom the liability to pay can be fastened. According to learned counsel for Respondent no. 3, Respondent no. 1 and 2 were illegally using CNG fuel in their vehicle. The owner had not paid insurance premium which is normally payable for CNG fitted vehicle. He filed copy of cover note which are issued for vehicles having CNG kit. Additional premium is Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 13 Of 15 : 14 : required to be paid for CNG fitted vehicle. In the case in hand, no additional premium had been paid and in all probabilities, CNG fittings were done illegally by the owner. Learned counsel for respondent no. 3 during course of cross-examination of owner Respondent no. 2 , showed him ten photographs . The photographs clearly indicated that CNG cylinder had been fitted in the car. Owner Respondent no. 2 claimed that he could identify seven photographs and not identify remaining three in which cylinder was visible. This indeed is strange. So it has become a crystal clear that the offending vehicle had been fitted with CNG cylinder illegally and unauthorizely. It is a condition in the insurance policy that insured has to declare value of the CNG kit. In the case in hand, it was never done as the kit was installed illegally. As such insurer Respondent no. 3 cannot be compelled to pay. The liability to pay shall be that of the driver and owner jointly and severally. The issue is decided in favour of petitioner and against the respondents.
Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 14 Of 15 : 15 :
18. RELIEF:
I have already held above that petitioner is entitled to receive compensation of Rs. 1,34,225.32. I direct Respondent no. 1 and 2 driver and owner of the vehicle to pay the compensation within thirty days of today alongwith interest @ 7.5% p.a. to be calculated from date of institution till date of actual deposit.
19. Copy of this order be provided to both the parties for compliance.
Announced in the open court (PRADEEP CHADDAH)
On 4th October, 2007 JUDGE: MACT
ROHINI:DELHI
Extra Two Copies Prepared
Sh. Rajesh Kumar Vs. Nidhi Verma P.No. 15 Of 15