Delhi District Court
Vijay Singh vs Sh. Sunil Katyal on 28 May, 2012
IN THE COURT OF MS. VINEETA GOYAL: PO-MACT (SOUTH-01)
SAKET COURTS, NEW DELHI
INJURY CASE
Suit no. : 399/08
Unique Case ID no. : 02403C0360172007
IN THE MATTER OF :-
1. Vijay Singh
S/o Sh. Rewati
2. Smt. Kamlesh
W/o. Vijay Singh
Both residence of
3/182,Dakshinpuri
New Delhi.
-------------------- Petitioner
Versus
1. Sh. Sunil Katyal
S/o Sh. Chandan Lal Katyal,
R/o. A-226, Defence Colony
New Delhi ----Driver cum owner
2. The Tata AIG Insurance Co. Ltd.
1st Floor, Lotus Tower
Near Defence Colony Police Station
New Delhi ---------Insurer
--------------Respondents
Date of institution : 25.04.2007 Date of institution in the present court : 18.11.2008 Date of arguments : 07.05.2012 Date of order : 28.05.2012
Appearance:Sh. Vinay Sharma, counsel for petitioner.
R1 ex-pare.
Ms. Vandana Kahlon, counsel for insurance company/R2.
JUDGEMENT/AWARD
1. This award shall dispose off claim petition filed initially by Sh. Chander Chauhan petitioner/claimant for claiming compensation for injuries sustained motor vehicular Suit no.399/08 Page no. 1/8 accident. However, during pendency of claim petition Sh. Chander Chauhan claimant/injured subsequently died and legal representative of deceased have brought on record.
2. Brief facts of the accident are that on 08.01.2007 at about 09.30 pm, the petitioner was going on motorcycle no. DL-6SX-9535 dominose pizza, Defence Colony, since he was working in the field to supply pizza when he was returning to C blcik Defence Colony, suddenly a car bearing no. DL-3CAK-3045 being driven by its driver in rash and negligent manner came from ring road side and hit the victim. Due to this sudden and forceful impact, petitioner sustained grievous injuries. He was removed to AIIMS Hospital where his MLC No.CS-2496-2007 was drawn. An FIR no.16/2007 was registered with police station Defence Colony for this accident u/s 279/338 IPC against Sunil Katyal respondent no.1.
3. In response to notice of petition, respondents appeared. Respondent no.1 driver cum owner inter alia denied the occurrence of accident and his liability to pay compensation to petitioner.
4. The insurer/respondent no.2 admitted the validity of the insurance policy for the offending vehicle in the name of R1 vide policy no.0150086804 from 02.07.2006 to 01.07.2007.
5. From the pleadings on record the following issues were framed, by the then Ld. Presiding Officer on 17.05.08:-
Issues:
1. Whether petitioner sustained injuries on his person in the road accident on 08.01.2007 by the vehicle DL-3CAK-3055 (Honda City) was being driven by R1 in rash and negligent manner being the owner also and was insured with respondent no.2?OPP
2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP
3. Relief
6. In order to prove his case, claimants petitioner nos.1 and 2 parents of victim (now deceased) appeared as PW1 and PW2 respectively and stated that their son met Suit no.399/08 Page no. 2/8 with an accident on 08.01.2007 at about 9.30 pm with car bearing no.DL-3CAK-3055 which was being driven by respondent no.1 in rash and negligent manner and hit the motorcycle from behind and due to which their son along with motorcycle fell down and received grievous injuries over his right leg. These witnesses also stated that their son remained admitted in the hospital (AIIMS) from 08.01.2007 to 10.01.2007 and prior to his accident their son was quit healthy and free from all kind of ailments but after accident there was a regular pain in neck and stomach. Their son had been taking regular medical treatment and could not recover completely and died on 28.02.2009. the petitioner produced copy of FIR, chargesheet, driving licence, medical legal report, medical bills and other relevant documents. The petitioner also examined Sh. Sandeep Dithar, Assistant Manager from Dominoz Pizza as PW3. This witness produced salary slip of victim/petitioner Chander Chauhan for July 2006 to January 2007, PF statement for the year 2007- 2008, return of contribution of ESI in the form -5.
7. Insurance company in its defence choose not to lead any evidence and closed the same.
8. I have heard the arguments advanced by the counsel for parties and gone through the case file and my findings on the issues are as under:-
Issue Nos. 19. The burden of proof of this issue was upon the petitioners. In order to prove this fact, petitioners while stepping into witness box as PW1 and 2 respectively by virtue of their affidavits made statement inconsonance with the averments made in the petition. They deposed on oath that accident in question was a result of rash and negligent driving of respondent No.1 and that the respondent No.1 was responsible for the accident which occurred on 08.01.2007 at about 9.30 pm and FIR No.16/2007 was registered with police station Defence Colony Delhi. Here in the present case, no evidence whatsoever has been adduced by either of respondents to rebut the evidence adduced by petitioner nor they have been cross examined by respondent no.1 driver and as such adverse inference is liable to be drawn against him. From unrebutted oral and documentary evidence, it is established from record that petitioner sustained grievous injuries on account of negligent driving of respondent No.1. Hence, issue no. 1 is decided in favour of petitioner.
Suit no.399/08 Page no. 3/8Issue no. 2:
10. The ld. counsel for insurance company argued that as per the MLC dated 08.01.2007 the petitioner (now deceased) was advised only x-ray of right leg and knee and no other injuries were sustained on any other part of body. The petitioner has not placed on record any documents to prove injuries pertaining to any fracture in the right leg as claimed. The petitioner (now deceased) died on 28.02.2009 after a period of two years. No certificate of Doctor and postmortem report has been filed by the claimants certifying that death was resulted due to injuries suffered in the right leg or knee on 08.01.2007. The counsel further contended that no discharge summary has been placed on record to show the hospitalization in the AIIMS from 08.01.2007 to 10.01.2007. The petitioner has not produced any treatment/prescription slip to prove that victim was advised bed rest and his treatment continued for a sufficient long period as alleged by them. It was next argued that as per treatment record placed by the petitioner there are certain bills which shows that victim took treatment for CRF i.e. chronic renal failure and kidney problem and no injuries were sustained in the aforesaid part at the time of accident and the subsequent medical record has no nexuses with the injury sustained in the accident. It was next argued that the maxim actio personalis moritur cum persona is applicable as a personal right of action dies with the person. When an injury has been done to any person for which recovery of damages would have been the remedy, the action extinguishes with the death of the person wrong or that of wrong doer. The claimants are not entitled for compensation being the legal heirs of injured Chander Chauhan.
11. On the other hand counsel for petitioners claimed that in motor accident cases, the right to sue in case of death survive to the legal representative of deceased to the extent of loss of dependency including loss of estate of deceased and to the extent of loss of estate of the deceased in case of personal injury and equally survives against the legal representative of respondents. The paramount principle as enunciated under rule 1 of order 22 of Civil Procedure Code, is that the right to sue survive, the death of the plaintiff or defendant shall not cause the suit to abate. The applicability of maxim actio personalis moritur cum persona being confined only to the claim of personal injury, without affecting the claim towards loss of estate of deceased, the effect of doctrine in motor accident cases brings out only a partial abatement as distinguished Suit no.399/08 Page no. 4/8 from total abatement of claim. The total abatement results where the legal representative of deceased had not brought on record. It was next argued that victim died because of injuries sustained in the accident and the petitioners are entitled for compensation.
12. I have heard arguments advanced by ld. counsels for the parties and gone through the material available on record. In order to prove its case, it is imperative duty upon petitioners to lead positive evidence as to the nature of injuries and its effect and cause. The medical record produced by the claimant transpires that after the accident, injured though suffered grievous injuries reported in MLC in following terms:
Patient gives alleged history fall of bike on his right leg on 08.01.2007 at about ½ hour back No H/O LOC, vomiting, ENT bleed, seizures.
O/E Patient conscious and well oriented to time place and person Advised x-ray right knee with leg AP and lateral Injection - voveron- tenderness seen in right knee and right leg. R/V by S/R ortho.
but it is averred that hospitalization was only for two days following by two months of bed rest . The petitioner has neither supported hospitalization nor two months bed rest with any documentary evidence in the form of discharge summary and follow up documents of the injury mentioned in MLC. After a lapse of period of two years i.e. in the month of January 2009, another set of medical records have been placed on record indicating that injured victim suffered from Chronic Renal Failure. This ailment was treated in Pushpawati Singhani Research Institute Seikh Sarai New Delhi and Jeevan Hospital New Delhi. After brief treatment, the injured/victim died on 28.02.2009. The petitioner claimant parent of victim claimed that their son died because of injuries suffered in the road accident and expired in year 2009 and referred towards the treatment taken from aforesaid hospitals. However, the treatment records of Pushpawati Singhani Research Institute Seikh Sarai New Delhi and Jeevan Hospital New Delhi shows that case of the petitioner was chronic renal failure. There is nothing on record to suggest that renal ailment has resulted from the accident injuries which were fractures as alleged. Moreover undisputedly, there is no postmortem report or death certificate connecting subsequent treatment under gone by victim causing his Suit no.399/08 Page no. 5/8 death. The vital links of death with the reported injuries in MLC sustained in the accident are missing. The medical record transpires that Sh. Chander Chauhan (now deceased) died in natural course of probabilities and not due to motor vehicular accident.
13. It is settled law that Motor Accident Claim Tribunal can award compensation only in connection with the liability of insurance on the insured which arises out of vehicular accident and not for any remote cause.
14. In so far as medical expenses incurred by the claimants are concerned, there are two sets of bills, one set is related to the injuries suffered a year 2007 being injuries treated in year 2007 which are approximately of Rs.10,530.52/- and these bills undoubtedly connected with road accident and allowed. The other set of bills relating to the treatment of Chronic Failure are held to be unconnected with the accident are disallowed. The petitioners are entitled for Rs.10,530.52 (rounded off to Rs.10,531/-) towards medical expenses incurred during treatment.
15. In the case of Muni Devi Vs. New India Assurance Co. Ltd. 2004ACJ-974 (Delhi ). The injured claimant having its right hand imputed as a result of injury had died a natural course. It was observed that the claim did not wholly abate and his parents, as partially dependent on deceased were entitled to pursue the matter and received amount awarded and award able in the shape of loss to the estate of deceased.
16. In the case of Legal Representatives of Om Prakash: Maya and others vs. Mahendra Pal and others 1989 ACJ 1114 the learned Single Judge of the Rajasthan High Court observed in Para 6 as under:-
I have heard both the learned Counsel and have also perused the record. It is true that personal action dies with the person, this principle of actio personalis moritur cum persona has been recognized by the Indian courts also. But the exception is contained in section 306 of the Indian Succession Act which saves the action to the extent of loss to the estate of the deceased. This has been laid down by this court in Sampati Lal v. Hari Singh, 1985 ACJ 539 Suit no.399/08 Page no. 6/8 (Rajasthan). Therefore, the view taken by the learned Tribunal that all the actions pertaining to the person prior to his death die with the person is not correct. Thus, the contention of Mr. Parihar that except item Nos. (a) and (c) other claims mentioned in the claim petition can still survive and it can be still tried by the learned Tribunal, appears to be correct. Thus, I uphold the contention of Mr. Parihar and hold that the claims raised by the legal representatives of the deceased in the claim petition mentioned therein except item Nos.,
(a) and (c) can be tried by the learned Tribunal."
17. In case of Jenabai V. Gujarat State Road Transport Corporation, the claimant injured died natural death during pendency of claim. It was held that the claim does not abate in toto but survives to the extent of loss caused to estate of deceased and to that extent, the legal representatives of deceased can pursue the action initiated by deceased and can claim compensation to that extent. Where the claim was made regarding loss to property as well as for pain, suffering and mental agony caused to injured personally and the claimant died during pendency of claim proceedings, the claim in respect of loss to estate would survive to the legal representative of the deceased who can be substituted to that extent, but the claim in respect of pain suffering and agony abates.
18. Applying the settled principles as discussed above on the present case in hand Sh. Chander Chauhan (injured) had died in natural course during pendency of claim petition, the surviving petitioners are entitled to compensation and as such petitioners are awarded Rs.70,000/- inclusive of expenses incurred towards treatment (Rs.10531) and finally towards funeral which are incidents of loss of estate of deceased.
Relief
19. Petitioners are awarded to Rs.70,000/- with interest @ 7.5% per annum from the date of filing of petition i.e. 25.04.2006 till its realisation.
LIABILITY:-
20. In this case, R1 is the driver cum owner. Sh.Chander Chauhan had sustained injuries on account of negligent driving of R1. R2 is insurer of R1, therefore, R2 is liable Suit no.399/08 Page no. 7/8 to indemnify R1 regarding compensation to be payable to the petitioners.
21. Respondent no.2/insurance company is directed to directly deposit the cheques with SBI, Saket Court branch within 30 days from today and in case of default, penal interest @ 12 % per annum shall be given from the date of filing of delay till deposit of the awarded amount on the account of petitioners. This award amount has to be equally apportioned between all the claimants.
22. Let for the identification of the petitioners, the first copy of the petition wherein photograph of the petitioners are affixed, be annexed with the award.
23. Award is passed accordingly.
24. File be consigned to record room only after compliance by insurance company by depositing the award in the manner as stated above. Be awaited for compliance for 30.07.2012.
Pronounced in the open court
on 28.05.2012 VINEETA GOYAL
PO : MACT (SOUTH-01)
28.05.2012
Suit no.399/08 Page no. 8/8