Delhi District Court
Mukesh vs Sahil Verma on 20 October, 2018
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
D-37/16
Unique Case I.D No.: MACT/1861/2016
Mukesh
S/o Sh. Raj Singh
R/o C-18, T Huts, Kamla Nehru Camp,
Kirti Nagar, Delhi-110015.
..... Petitioner
VERSUS
1. Sahil Verma
S/o Sh. Sunil Verma
R/o H. No. 38/37, 3rd Floor,
Gali No. 14, East Azad Nagar,
Jain Mandir, Krishna Nagar,
Delhi
..... Driver
2. M/s Rameshwar Dass
Through its partner:
Sh. Mahesh Chand Goyal
R/o H. No. 208, Dayanand Vihar,
Delhi-110092
..... Registered owner
3. The Oriental Insurance Co. Ltd.
F-14 & 20, United India Life Building,
Connaught Circle, New Delhi-110001
..... Insurer
..... Respondents
Date of Institution : 23.01.2016
Date of reserving : 09.10.2018
Date of Judgment : 20.10.2018
JUDGEMENT
D37/16 Mukesh vs Sahil Verma & Ors. 1 of 14 PLEADINGS:
1. Mr. Mukesh, (the petitioner), suffered 'grievous' injury in form of 'fracture left femur, fracture right fibular neck and fracture right inferior ischiopubic ramus' in a motor vehicular accident that occurred at 9.00 p.m. on 07.10.2015 near Bharat Furniture, Mahila Colony, Godown No. 43, Gandhi Nagar, Delhi, while he was unloading furniture from Mahindra Champion, when the car make 'Hyundai Santro' bearing registration No. DL-2C AD 2628 (the car), allegedly driven in a rash and negligent manner by the respondent No. 1, had hit him from behind. The petitioner instituted an accident claim case in wake of Detailed Accident Report (DAR) submitted by IO HC Punit Anand under section 166 (4) of the Motor Vehicles Act, 1988 (MV Act) on the basis of evidence collected during investigation of criminal case vide FIR No. 646/15, initially, registered under section 279/337 of the Indian Penal Code, 1860 (IPC) at PS Gandhi Nagar impleading, inter alia, the driver, registered owner and insurer of car as the respondents.
2. The respondent No. 1, in his reply, denied having caused any accident. He contended that he was not driving the car. He claimed false implication.
3. The respondent No. 2, in its written statement, contended that the respondent No. 1 had taken key of the car from drawer of the office and taken the car without permission.
It denied liability to pay compensation to the petitioner.
D37/16 Mukesh vs Sahil Verma & Ors. 2 of 14
4. The respondent No. 3 / insurer, in its written statement, conceded that the car was insured with it in the name of the respondent No. 2 for the period in question. It pleaded breach of terms and conditions of insurance policy on the ground that the respondent No. 1 was not holding driving license to drive the car. It denied liability to pay compensation to the petitioner.
ISSUES:
5. On the pleadings, following issues were framed:
(i) Whether the claimant has suffered injuries in road side accident on 07.10.2015 involving vehicle i.e. Silver Colour Santro Car bearing registration No. DL-2C AD 2628 being driven allegedly in a rash and negligent manner by the respondent No. 1?
(ii) To what amount of compensation, if any, the petitioner is entitled to and from whom?
(iii) Relief.
PETITIONER'S EVIDENCE:
6. PW-1 Rakesh Kumar, O.T. Technician, Mahajan Hospital, Adarsh Nagar, Opp. Azadpur Mandi, Delhi relied on authorization letter Ex.PX. He brought discharge summary and treatment record Ex.PW1/1 (colly), and medical bills Ex.PW1/2.
7. The petitioner appeared as PW-2. He filed evidence by way of affidavit Ex.PW2/A. He relied on his driving license Ex.PW2/1 and copy of detailed accident report (DAR) Ex.PW2/2.
8. PW-3 Dr. Hemant Sharma, Specialist (Orthopedics), Dr. Hedgewar Hospital, Delhi proved disability certificate Ex.PW3/A. D37/16 Mukesh vs Sahil Verma & Ors. 3 of 14 RESPONDENT'S EVIDENCE:
9. The respondent No. 1 appeared as R1W1. He denied that he had written letter dated 28.10.2015 Ex.R1W1/1 to SHO, PS Gandhi Nagar.
10. R2W1 HC Puneet Anand, SHD, PS Gandhi Nagar, Delhi brought complaint dated 24.10.2015 Ex.R2W1/A, DD No. 34B dated 08.10.2015 and DD No. 39B dated 24.10.2015 Ex.R2W1/B and Ex.R2W1/C respectively, and complaint dated 07.10.2015 Ex.R2W1/D.
11. Sh. Mahesh Chand Goyal, partner of the respondent No. 2 appeared as R2W2. He substantiated the defence taken by the respondent No. 2 that the respondent No. 1 had taken key of the car without permission.
12. The respondent No. 3 / insurer examined its administrative officer Beena as R3W1. She relied on insurance policy Ex.R3W1/1, Notice under Order 12 Rule 8 CPC issued to the respondent No. 1 and 2 Ex.R3W1/2 and Ex.R3W1/3, and postal receipts Ex.R3W1/4 and Ex.R3W1/5, detailed accident report (DAR) Ex.R3W1/6 and charge-sheet Ex.R3W1/7. FINAL ARGUMENTS:
13. I have heard arguments of Sh. Roshan Kumar, Advocate for the petitioner, Sh. M.K. Gupta, Advocate for the respondent No. 1, Sh. Rajeev Saraswat, Advocate for the respondent No. 2, and Sh. Upender Kumar, Advocate for the respondent No. 3 / insurer and examined the evidence on the file of the tribunal.
D37/16 Mukesh vs Sahil Verma & Ors. 4 of 14 ISSUE NO. 1:
14. The petitioner, in order to prove rash and negligent driving of the car, appeared as PW-2. He deposed, on strength of affidavit Ex.PW2/A, sequence of events leading to accident. In his evidence, he deposed that on 07.10.2015 at about 9.00 p.m., he was unloading furniture from his vehicle in front of Bharat Furniture, Gandhi Nagar, Delhi, when Santro Car bearing registration No. DL-2C AD 2628 had hit him from behind with considerable force. It may be noted that counsel for the respondent No. 1 cross-examined him. In his cross- examination, he reaffirmed that at the time of accident, he was unloading furniture from his vehicle. He deposed that the car was parked at the gate of Bharat Furniture. The respondent No. 1 had key of the car and he started it. He deposed that when he was unloading furniture, the respondent No. 1 rammed car into his left leg. He deposed that incident had taken place at the moment when he opened rear gate of his vehicle to unload furniture. It is relevant to note that the respondent No. 1 did not confront him with his case that he was not driving the car at the time of accident. The respondent No. 2 did not cross-examine him. The respondent No. 3 / insurer did not ask any question on the aspect of rash and negligent driving of the car.
15. At this juncture, it would be relevant to advert to the evidence of the respondent No. 1. In his evidence, he deposed that he was employed as a help for cleaning of shop and vehicle of the respondent No. 2.
D37/16 Mukesh vs Sahil Verma & Ors. 5 of 14
16. The respondent No. 1 deposed that he was not driving Santro Car bearing registration No. DL-2C AD 2628 and caused accident. He denied having written letter dated 28.10.2015 Ex.R1W1/1 to SHO, PS Gandhi Nagar. He deposed that at the time of accident, he was present. He deposed that he does not know as to how the car met with an accident and had hit the petitioner. According to him, he went to keep vegetables in the said car under the instruction of the respondent No. 2. He deposed that key of the car was with the respondent No. 2 who had opened the car and taken key with him. He deposed that when he returned with the respondent No. 2, the accident had already taken place. It is evident from vacillating of evidence of the respondent No. 1 in light of evidence of the petitioner, R2W2 Mahesh Chand Goyal and contemporary documents that he has given false evidence.
17. R2W2 Mahesh Chand Goyal categorically deposed that he had taken out keys of the car from the drawer and kept it on the table. He deposed that when he was busy in showing the samples, he was informed that the respondent No. 1 had caused an accident. He deposed that the respondent No. 1 told him that he was asked to park the car in one side and therefore, he had brought key from the table. The respondent No. 1, in his statement recorded under section 165 of the Evidence Act on 23.01.2016, stated that he was driving the car and he was not having driving license. It is, therefore, evident that the respondent No. 1 was driving the car in rash and negligent manner and caused the accident.
D37/16 Mukesh vs Sahil Verma & Ors. 6 of 14
18. The petitioner was admitted at 10.25 p.m. on 07.10.2015 in SDN Hospital, Dilshad Garden, Delhi as a case of road traffic accident (RTA). He had injuries on left leg. The nature of injury is 'grievous'.
19. Therefore, it is proved that the petitioner suffered grievous injuries in the motor vehicular accident caused by rash and negligent driving of the car by the respondent No. 1. Accordingly, issue No. 1 is decided in favour of the petitioner and against the respondents.
ISSUE NO. 2:
20. The petitioner suffered 'grievous' injury and consequent, permanent disability in accident arising out of rash and negligent driving of car by the respondent No. 1. He is entitled to just and reasonable compensation. PAIN AND SUFFERING:
21. According to MLC, the petitioner was admitted at 10.25 p.m. on 07.10.2015 in SDN Hospital, Dilshad Garden, Delhi as case of road traffic accident (RTA). He was examined to have suffered 'tenderness over left thigh / knee and tenderness over left knee / right knee'. As noted in discharge summary issued by Mahajan Hospital Ex.PW1/1, the petitioner was diagnosed to have suffered 'fracture left femur, fracture right fibular neck and fracture right inferior ischiopubic ramus'. He underwent close intramedullary nailing. He was eventually assessed to have suffered 16% permanent disability in relation to left lower limb. In view of nature of injury, nature of surgical procedure and period of treatment, the petitioner is awarded an amount of Rs. 75,000/- under the head of 'pain and suffering'.
D37/16 Mukesh vs Sahil Verma & Ors. 7 of 14 MEDICAL EXPENSES:
22. The petitioner proved medical expenses in the sum of Rs. 68,347/- vide medical bills Ex.PW1/2. Accordingly, he is awarded an amount of Rs. 70,000/- under the head of 'medical expenses'.
LOSS OF INCOME:
23. The petitioner claimed that he was working as 'driver' with Sh. Ram Dayal Mahto at salary of Rs. 14,000/- per month.
He deposed that he could not work for a long period and his employer removed him from service. However, he has not led any evidence to prove his employment and income. He has not led any evidence to prove the period during which he could not work or engage in any gainful activity. According to discharge summary Ex.PW1/1, the petitioner received treatment as an indoor patient for the period from 08.10.2015 to 13.10.2015 in Mahajan Hospital, Delhi. He suffered 'fracture left femur, fracture right fibular neck and fracture right inferior ischiopubic ramus'. There is no medical document on the file of the tribunal pertaining to further treatment of the petitioner. In view of nature of injuries, surgical intervention and period of treatment, he is awarded loss of income for three months on benchmark of prevalent minimum wages for unskilled workers in Delhi. Accordingly, the petitioner is awarded (9,178 x 3) = Rs. 27,534/- (rounded of) Rs. 28,000/- under the head of 'loss of income for three months'.
D37/16 Mukesh vs Sahil Verma & Ors. 8 of 14 LOSS OF FUTURE INCOME:
24. The petitioner is seeking loss of future income on functional disability to the extent of 16% in relation to left lower limb. Ld. Counsel for the petitioner submitted that the petitioner's efficiency and capacity curtailed due to the disability suffered by him and he must be compensated for that. Ld. Counsel for the respondent No. 3 / insurer submitted that efficiency and capacity of the petitioner is not affected in any manner. He submitted that the petitioner is not entitled to loss of future income.
25. Medical board constituted at Dr. Hedgewar Arogya Sansthan, Karkardooma, Delhi-110032 examined the petitioner.
It assessed permanent physical disability of the petitioner to the extent of 16% vide disability certificate Ex.PW3/A in relation to left lower limb. Besides deposing that he could not work for a long period, he has not stated as to how the disability suffered by him affected his capacity and efficiency to engage in any gainful employment or avocation.
26. PW-3 Dr. Hemant Sharma, Specialist (Orthopedic), Dr. Hedgewar Arogya Sansthan, Karkardooma, Delhi-110032 proved disability certificate Ex.PW3/A. He deposed that the restriction of joint at hip and knee are unlikely to have much effect. He deposed that the petitioner can lift, carry and move alongwith heavy items. He deposed that the disability suffered by the petitioner would have no affect on his capacity to work. It is, therefore, evident that the disability suffered by the petitioner would have no effect on his efficiency and capacity to work. Therefore, the petitioner is not entitled to loss of future income.
D37/16 Mukesh vs Sahil Verma & Ors. 9 of 14 LOSS OF AMENITIES:
27. PW-3 Dr. Hemant Sharma categorically stated that besides squatting and cross leg sitting, the petitioner will be able to enjoy all amenities of life. He deposed that the petitioner may have pain, if he stands for long hours. It is, therefore, evident that the disability would prevent the petitioner from enjoying ordinary comforts of life. Accordingly, the petitioner is awarded an amount of Rs. 25,000/- under the head of 'loss of amenities'. SPECIAL DIET AND CONVEYANCE:
28. The petitioner has claimed Rs. 20,000 to 25,000/- each towards special diet and conveyance. The petitioner has not led any evidence to prove that he was prescribed any special diet or incurred any expense on protein rich or nutritious diet. He has not led any evidence to prove that he engaged any conveyance or incurred any expense thereon. In view of the nature of injury and nature of the treatment, he is awarded an amount of Rs. 5,000/- each under the head of 'special diet and conveyance'.
29. The compensation awarded to the petitioner is computed, as under:
Sl. No. Head of compensation Amount
1. Pain and suffering Rs. 75,000/-
2. Medical expenses Rs. 70,000/-
3. Loss of Income for 3 months Rs. 28,000/-
4. Loss of amenities Rs. 25,000/-
5. Special diet and conveyance Rs. 10,000/-
TOTAL Rs. 2,08,000/-
D37/16 Mukesh vs Sahil Verma & Ors. 10 of 14
LIABILITY:
30. The respondent No. 3 / insurer, in its written statement, contended that the respondent No. 1 was not holding any driving license to drive car. It may be noted that the respondent No. 1 has not produced any driving license authorizing him to drive car during the inquiry. He has been charge-sheeted under section 3/181 M.V. Act for driving car without driving license. The respondent No. 1, in his statement recorded under section 165 of Indian Evidence Act on 23.01.2016, stated that he was driving car and he was not having any driving license at that time. R3W1 Ms. Beena, Administrate Officer, Oriental Insurance Co. proved a copy of insurance policy Ex.R3W1/1, Notice under Order 12 Rule 8 CPC issued to the respondent No. 1 and 2 Ex.R3W1/2 and Ex.R3W1/3. The respondent No. 1 and 2 have not produced the driving license of the respondent No. 1 in response to the said notices. They have not produced the driving license of the respondent No. 1 during the inquiry. It is, therefore, proved that the respondent No. 1 was driving the car without driving license. Driving a car without driving license is breach of fundamental term of insurance policy.
31. The case of the respondent No. 2 is that the respondent No. 1 had driven the car without his permission. He deposed that he had kept key of the car on table after taking it out from drawer and in the meanwhile, one customer came and he started showing samples to him. According to him, while he was busy in showing samples, someone informed him that the respondent No. 1 caused the accident.
D37/16 Mukesh vs Sahil Verma & Ors. 11 of 14
32. The tribunal does not find any merit in his contention. The respondent No. 2 should have displayed diligence in ensuring that key of the car should not come to the hand of an unauthorized person.
33. In Mahender Singh Rawat & Anr. versus Ram Kishan & Anr., MAC APP. 564/2010 decided on 17.11.2014, the tribunal rejected the contention of the owner that the motorcycle was taken behind his back and without his consent or knowledge. The owner preferred an appeal contending that he was not liable as the driver had, without consent of the owner of the motorcycle, taken the keys of the motorcycle. Hon'ble High Court dismissed the appeal. It was held as under:
"4. In my opinion there is no reason to differ with the view of the tribunal. This Court in a recent judgment dated 14.10.2014 in the case MAC APP. No. 339/2005 in the case of National Insurance Company Ltd. versus Sanjay Singharia & Ors. Relied upon the judgments of the Supreme Court in the case of Jawahar Singh versus Bala Jain & Others, AIR 2011 SC 2436 and United India Insurance Co. Ltd. versus Rakesh Kumar Arora & Ors., (2008) 13 SCC 298 to hold that where a minor is driving a vehicle without a license there is a breach of the terms and conditions of the insurance policy. This Court had noted the case of Jawahar Singh versus Bala Jain (supra). This was a case where the motorcycle was driven by one Jatin. As per the owner of the motorcycle, the said Jatin, his nephew had taken the motorcycle without his knowledge and consent and had taken the keys of the motorcycle without his permission. The said Jatin did not even have a valid license and he was a minor at the time of accident. The Supreme Court upheld the liability settled down on the owner of the motorcycle."
34. The respondent No. 3 shall pay compensation to the petitioner. However, the respondent No. 3 / insurer is granted recovery rights against the respondent No. 1 and 2.
D37/16 Mukesh vs Sahil Verma & Ors. 12 of 14 AWARD
35. The petitioner is awarded compensation in the sum of Rs. 2,08,000/- alongwith interest @ 9% per annum from the date of filing of the petition till the date of award. The respondent No. 3 / insurer shall deposit the award amount with the tribunal within 30 days and otherwise, the award amount will carry interest @ 9% per annum from the date of filing of the petition till realization.
MODE OF DISBURSAL:
36. Amount of Rs. 1,08,000, out of Rs. 2,08,000, will be released to the petitioner and balance amount of Rs. 1,00,000/- alongwith accrued interest, will be secured in the form of fixed deposit receipts for the period, as under:
Sl. No. Amount Period of FDR
1. Rs. 25,000/- 2 months
2. Rs. 25,000/- 3 months
3. Rs. 25,000/- 4 months
4. Rs. 25,000/- 5 months
5. Interest component 6 months
The respondent No. 3 / insurer is granted recovery rights against the respondent No. 1 and 2 for recovery of the award amount alongwith up to date interest by way of appropriate proceedings and liability of the respondent No. 1 and 2 shall be joint and several. Copy of award be supplied to the respondents for compliance. File be consigned to record room.
SANJAY Digitally signed by SANJAY SHARMA
Location: East District, Karkardooma
SHARMA Courts, Delhi
Date: 2018.10.20 16:34:11 +0530
Announced in the open Court Sh. Sanjay Sharma
Dated: 20th October, 2018 Presiding Officer MACT (East)
Karkardooma Court, Delhi
D37/16 Mukesh vs Sahil Verma & Ors. 13 of 14
DAR No. 37/16
20.10.2018
Present : Sh. Roshan Kumar, Advocate for the petitioner.
Sh. M.K. Gupta, Advocate with R1 / driver. Sh. Rajeev Saraswat, Advocate with R2 / owner. Sh. Upender Kumar, Advocate for R3 / Insurance Co.
Vide separate judgment, award is passed. To come up for compliance on 19.11.2018.
Sanjay Sharma PO MACT (East)/KKD Delhi/20.10.2018 D37/16 Mukesh vs Sahil Verma & Ors. 14 of 14