Officer : Mact : Delhi vs Sadiq on 22 September, 2007

[Cites 11, Cited by 0]

Delhi District Court

Officer : Mact : Delhi vs Sadiq on 22 September, 2007

                              -- 1 --

    IN THE COURT OF SH. DILBAG SINGH : PRESIDING
               OFFICER : MACT : DELHI



Petition Nos.                     :      21/04 to 30/04

Date of filing of Petitions       :      04.02.2004


Date of conclusion of final       :      19.09.2007
arguments/Date of reservation
of judgment

Date of Award                     :      22.09.2007


SUIT NO. 21/04


1 Smt. Sagbeera @ Sabra
  W/o Late Sh. Usman,
  R/o WZ-143, Gali No.3,
  Gujjar Market, Village Tihar,
  New Delhi.

2 Mohd. Irfan @ Pappu,
  S/o Late Shri Usman,

3 Mohd. Rizwan @ Sonu,
  S/o Late Shri Usman,

4 Ms. Sayema,
  D/o Late Shri Usman,
  Minor aged about 13 years,
  through her mother, natural guardian
  and next friend Smt. Saqgbeera
  @ Sabra,


                                                  Continue.....
                               -- 2 --

   All R/o WZ-143, Gali No.3,
   Gujjar Market, Village Tihar,
   New Delhi.
                                           .... Petitioners
Versus

1 Sadiq,
  S/o Sh. Abdul Yaqub
  R/o H. No. 572, Kucha Tihar,
  Hari Nagar, New Delhi (driver)

2 Shri Krishan Kumar,
  S/o Shri Behari Lal,
  R/o RZ-86, Madanpuri,
  Sagarpur, New Delhi (registered owner)

3 Shri Jamshed,
  S/o Sh. Jailuddin,
  R/o H. No. 572, Kucha Tihar,
  Hari Nagar, New Delhi (factual owner)

4 National Insurance Co. Ltd.
  DO/XI, 6/90, Padam Singh Road,
  Karol Bagh, New Delhi
  Also at : 124, Second Floor,
  Connaught Circus, New Delhi
  with cover note no. 0082015 of
  offending vehicle no. DL-6CA-2508
  (Insurance Company).

5 Sh. Jagjit Singh,
  S/o Sh. Mohinder Singh,
  R/o A-30/A, Double Storey,
  Tagore Garden, New Delhi
  (Factual owner).
                                           .... Respondents.

SUIT NO. 22/04

Continue.....

-- 3 --

Smt. Sagbeera @ Sabra W/o Late Sh. Usman, R/o WZ-143, Gali No.3, Gujjar Market, Village Tihar, New Delhi.

.... Petitioner Versus 1 Sadiq, S/o Sh. Abdul Yaqub R/o H. No. 572, Kucha Tihar, Hari Nagar, New Delhi (driver) 2 Shri Krishan Kumar, S/o Shri Behari Lal, R/o RZ-86, Madanpuri, Sagarpur, New Delhi (registered owner) 3 Shri Jamshed, S/o Sh. Jailuddin, R/o H. No. 572, Kucha Tihar, Hari Nagar, New Delhi (factual owner) 4 National Insurance Co. Ltd.

DO/XI, 6/00, Padam Singh Road, Karol Bagh, New Delhi Also at : 124, Second Floor, Connaught Circus, New Delhi with cover note no. 0082015 of offending vehicle no. DL-6CA-2508 (Insurance Company).

5 Sh. Jagjit Singh, S/o Sh. Mohinder Singh, R/o A-30/A, Double Storey, Tagore Garden, New Delhi (Factual owner).

Continue.....

-- 4 --

.... Respondents SUIT NO. 23/04 Mohd. Rizwan @ Sonu, S/o Late Sh. Usman, R/o WZ-143, Gali No.3, Gujjar Market, Village Tihar, New Delhi.

DO/XI, 6/00, Padam Singh Road, Karol Bagh, New Delhi Also at : 124, Second Floor, Connaught Circus, New Delhi with cover note no. 0082015 of offending vehicle no. DL-6CA-2508 (Insurance Company).

Continue.....

-- 5 --

5 Sh. Jagjit Singh, S/o Sh. Mohinder Singh, R/o A-30/A, Double Storey, Tagore Garden, New Delhi (Factual owner).

.... Respondents SUIT NO. 24/04 Mohd. Irfan @ Pappu S/o Late Sh. Usman, R/o WZ-143, Gali No.3, Gujjar Market, Village Tihar, New Delhi.

DO/XI, 6/00, Padam Singh Road, Karol Bagh, New Delhi Also at : 124, Second Floor, Continue.....

-- 6 --

Connaught Circus, New Delhi with cover note no. 0082015 of offending vehicle no. DL-6CA-2508 (Insurance Company).

5 Sh. Jagjit Singh, S/o Sh. Mohinder Singh, R/o A-30/A, Double Storey, Tagore Garden, New Delhi (Factual owner).

.... Respondents SUIT NO. 25/04 Ali Ahmad, S/o Sh. Akhtar Khan, R/o WZ-572, Village Tihar, New Delhi.

-- 7 --

4 National Insurance Co. Ltd.

DO/XI, 6/00, Padam Singh Road, Karol Bagh, New Delhi Also at : 124, Second Floor, Connaught Circus, New Delhi with cover note no. 0082015 of offending vehicle no. DL-6CA-2508 (Insurance Company).

5 Sh. Jagjit Singh, S/o Sh. Mohinder Singh, R/o A-30/A, Double Storey, Tagore Garden, New Delhi (Factual owner).

.... Respondents SUIT NO. 26/04 Sh. Israr Ahmad, S/o Late Sh. Mustaq Ahmad, R/o WZ-607, Village Kacha Tihar, New Delhi.

-- 8 --

S/o Sh. Jailuddin, R/o H. No. 572, Kucha Tihar, Hari Nagar, New Delhi (factual owner) 4 National Insurance Co. Ltd.

DO/XI, 6/00, Padam Singh Road, Karol Bagh, New Delhi Also at : 124, Second Floor, Connaught Circus, New Delhi with cover note no. 0082015 of offending vehicle no. DL-6CA-2508 (Insurance Company).

5 Sh. Jagjit Singh, S/o Sh. Mohinder Singh, R/o A-30/A, Double Storey, Tagore Garden, New Delhi (Factual owner).

.... Respondents SUIT NO.27/04 Kumari Farheen D/o Sh. Israr Ahmad, Minor aged about 8 years through her father/natural guardian and next friend Sh. Israr Ahmad R/o WZ-607, Village Kacha Tihar, New Delhi .

.... Petitioner Versus 1 Sadiq, S/o Sh. Abdul Yaqub R/o H. No. 572, Kucha Tihar, Hari Nagar, New Delhi (driver) Continue.....

-- 9 --

2 Shri Krishan Kumar, S/o Shri Behari Lal, R/o RZ-86, Madanpuri, Sagarpur, New Delhi (registered owner) 3 Shri Jamshed, S/o Sh. Jailuddin, R/o H. No. 572, Kucha Tihar, Hari Nagar, New Delhi (factual owner) 4 National Insurance Co. Ltd.

DO/XI, 6/00, Padam Singh Road, Karol Bagh, New Delhi Also at : 124, Second Floor, Connaught Circus, New Delhi with cover note no. 0082015 of offending vehicle no. DL-6CA-2508 (Insurance Company).

5 Sh. Jagjit Singh, S/o Sh. Mohinder Singh, R/o A-30/A, Double Storey, Tagore Garden, New Delhi (Factual owner).

.... Respondents Continue.....

-- 10 --

SUIT NO.28/04 Master Tasdiq Ahmad, S/o Sh. Israr Ahmad, minor aged about 6 years, through his father, natural guardian and next friend Sh. Israr Ahmad, R/o WZ-607, Village Kacha Tihar, New Delhi.

DO/XI, 6/00, Padam Singh Road, Karol Bagh, New Delhi Also at : 124, Second Floor, Connaught Circus, New Delhi with cover note no. 0082015 of offending vehicle no. DL-6CA-2508 (Insurance Company).

5 Sh. Jagjit Singh, Continue.....

-- 11 --

S/o Sh. Mohinder Singh, R/o A-30/A, Double Storey, Tagore Garden, New Delhi (Factual owner).

.... Respondents SUIT NO. 29/04 Master Tohid Ahmad S/o Sh. Israr Ahmad, minor aged about 3 years, through his father, natural guardian and next friend Sh. Israr Ahmad, R/o WZ-607, Village Kacha Tihar, New Delhi.

DO/XI, 6/00, Padam Singh Road, Karol Bagh, New Delhi Also at : 124, Second Floor, Connaught Circus, New Delhi Continue.....

-- 12 --

with cover note no. 0082015 of offending vehicle no. DL-6CA-2508 (Insurance Company).

5 Sh. Jagjit Singh, S/o Sh. Mohinder Singh, R/o A-30/A, Double Storey, Tagore Garden, New Delhi (Factual owner).

.... Respondents SUIT NO. 30/04 Arwaz Khan @ Ashu S/o Sh. Ali Ahmad, minor aged about 5 years, through his father, natural guardian and next friend Sh. Ali Ahmad R/o WZ-572, Village Tihar, New Delhi.

....Petitioner Versus 1 Sadiq, S/o Sh. Abdul Yaqub R/o H. No. 572, Kucha Tihar, Hari Nagar, New Delhi (driver) 2 Shri Krishan Kumar, S/o Shri Behari Lal, R/o RZ-86, Madanpuri, Sagarpur, New Delhi (registered owner) 3 Shri Jamshed, S/o Sh. Jailuddin, R/o H. No. 572, Kucha Tihar, Hari Nagar, New Delhi (factual owner) Continue.....

-- 13 --

4 National Insurance Co. Ltd.

DO/XI, 6/00, Padam Singh Road, Karol Bagh, New Delhi Also at : 124, Second Floor, Connaught Circus, New Delhi with cover note no. 0082015 of offending vehicle no. DL-6CA-2508 (Insurance Company).

5 Sh. Jagjit Singh, S/o Sh. Mohinder Singh, R/o A-30/A, Double Storey, Tagore Garden, New Delhi (Factual owner).

.... Respondents AWARD 1 By this judgment/award I shall dispose of the above mentioned ten petitions filed u/s 166 & 140 of Motor Vehicles Act, 1988, as amended upto date (hereinafter referred to as 'the Act') for grant of compensation wherein compensation has been claimed on account of vehicular accident. Petitions are being disposed of by common award as common questions of facts and law concerning issue of rashness and negligence are involved.

Continue.....

-- 14 --

2 Brief facts as cullable from the records are being stated first : On 15.12.2002 deceased Sh. Usman alongwith his family members namely Sagbeera @ Sabra (wife), Irfan and Rizwan (sons), Sayma (daughter) and other relatives namely Ali Ahmad, Arwaz Khan, Israr Ahmad, Tasdeeq Ahmad, Tohid Ahmad, Kumar Farheen were returning from Bareilly to Delhi by offending vehicle Tata Sumo bearing no. DL-6C-A-2508. When they reached at Quilla Over bridge, Bareilly, UP, the driver of said vehicle i.e. respondent no.1 while driving the aforesaid offending vehicle rashly and negligently could not control the said offending vehicle and the respondent no.1 steered the offending vehicle to left side so much that the offending vehicle fell down on the road from the high bridge after breaking the iron railing of the bridge. It is submitted that this accident was caused due to rash, negligent and careless driving of the offending vehicle at a very fast speed. Due to the accident, deceased Usman received fatal injuries and the relatives namely Ali Ahmad, Arwaz Khan, Israr Ahmad, Tasdeeq Ahmad, Tohid Ahmad, Kumari Farheen Continue.....

-- 15 --

received grievous injuries. Other occupants also received injuries. Sh. Usman was removed to All India Institute of Medical Sciences, New Delhi. He died on 22.12.2002. FIR was lodged at Police Station Ajmari Quilla, Bareilly, UP. A sum of Rs. 10,00,000/- has been claimed by claimants of suit no. 21/04 as compensation. A sum of Rs. 2,50,000/- has been claimed by claimant of suit no. 22/04. A sum of Rs. 10,00,000/- has been claimed by claimant of suit no. 23/04. A sum of Rs. 7,00,000/- has been claimed by claimant of suit no. 24/04. A sum of Rs. 3,00,000/- has been claimed by claimant of suit no. 25/04. A sum of Rs. 3,00,000/- has been claimed by claimant of suit no. 26/04. A sum of Rs. 8,00,000/- has been claimed by claimant of suit no. 27/04. A sum of Rs. 5,00,000/- has been claimed by claimant of suit no. 28/04. A sum of Rs. 5,00,000/- has been claimed by claimant of suit no. 29/04. A sum of Rs. 7,00,000/- has been claimed by claimant of suit no. 30/04. Respondent no.1 is the driver, respondent no.2 is the registered owner, respondent no.3 is the factual owner at the time of accident, respondent no.4 is the insurer and respondent no.5 is the alleged factual owner at the time of accident.

Continue.....

-- 16 --

3 Notices of the petitions were given to the respondents. Respondent no.2, 3 and 4 appeared and contested the case. Respondent no.1 has not appeared and was proceeded exparte on 22.11.2004. Respondent no.2 has filed written statement, wherein allegations of petitioners were controverted and it was submitted that respondent no.2 had already sold out the vehicle/Tata-Sumo bearing registration no. DL-6C-A-2508 to one Sh. Jagjeet Singh S/o Sh. Mohinder Singh on 15.07.2002.

4 Respondent no.3 has filed written statement, wherein he has averred that he is not concerned with the accident as he has no concern with Tata Sumo involved in the accident.

5 Respondent no.4, insurer of the Tata Sumo in its written statement has taken its usual statutory objections as contemplated U/s 149(2) of the Act. It was submitted that driver of the Tata Sumo bearing no. DL-6C-A-3508 was not Continue.....

-- 17 --

holding a valid and effective driving licence at the time of accident. Fact of Tata Sumo being insured in the name of Sh. Krishan Kumar vide policy no. 360500/2002 with validity period from 19.05.2002 to 18.05.2003.

6 On 22.11.2004, my Ld. Predecessor, from the pleadings of parties had framed following issues :

1. Whether deceased Mohd. Usman died and petitioners Sagbeera @ Sabra, Arwaz Khan @ Ashu, Mohd.

Rizwan @ Sonu, Master Tasdiq Ahmad, Ali Ahmad, israr Ahmad, Master Tohid Ahmad, Kumari Farheen, Mohd. Rfan sustained grievous injuries due to rash and negligent driving of Tata Sumo no. DL-6-CA-2508 by respondent no.1?

2. Whether the petitioners are entitled to any compensation? If so, what amount and against whom?

3. Relief.

7 Petitioners in support of their case have examined PW-1 Mst. Sagbeera @ Sabra, PW-2 Sh. Mohd. Rizwan @ Continue.....

-- 18 --

Sonu, PW-3 Sh. Mohd. Irfan @ Pappu, PW-4 Sh. Israr Ahmad, PW-4A Sh. Chander Bhan Saxena, PW-5 Sh. Ali Ahmad, PW- 5A Sh. R.K. Prasad. (Serial Number of PW-4 and PW-5 were repeated and for the sake of convenience they are re- numbered as PW4A and PW5A). PW-6 Sh. S.D. Dhiman, Senior Technical Officer, AIIMS Hospital and PW-7 Constable S.K. Sharma of PS Killa, District Bareilly, UP. 8 PW-1 has proved her affidavit as Ex. PW1/X and documents as Ex. P-1 to P-5 and Mark A and B. PW-2 Sh. Mohd. Rizwan @ Sonu has proved his affidavit as Ex. PW2/XX and documents as Ex. PW2/1 to 43. PW-3 Sh. Mohd. Irfan @ Pappu has proved his affidavit as Ex. PW3/XX and document as Ex. PW3/P-19. PW-4 Sh. Israr Ahmad has proved his affidavit as Ex. PW4/X and documents as Ex. PW4/P-19 to P-

21. PW4A Sh. Chander Bhan Saxena, Clerk Suman Hospital, District Bareilly, UP, has proved the photocopy of admission register as Mark A and certificate of Dr. Tilak Raj Kakkar, Incharge as Ex. PW4/A. 9 PW-5 Sh. Ali Ahmad has proved his affidavit as Ex.

Continue.....

-- 19 --

PW5/Y and documents as Mark X and Y. PW-5A Sh. R.K. Prasad, Chief Pharmacist Maharana Pratap Hospital, District Combined Hospital, Bareilly, UP, has proved the treatment record of Sabra W/o Sh. Usman. Photocopy of medical examination of Sabra dated 15.12.2002, photocopy of x-ray report no. 4227 dated 16.12.2002 and bed head ticket no. 9954 for the period 15.12.2002 to 23.12.2002 have been proved as Ex. PW5/1 to PW5/3. Photocopy of medical examination of Sonu dated 15.12.2002, photocopy of x-ray report no. 4228 dated 16.12.2002 and bed head ticket no. 9955 for the period 15.12.2002 to 23.12.2002 have been proved as Ex. PW5/4 to PW5/6. PW-6 Sh. S.D. Dhiman has proved the postmortem report as Ex. PW6/A. 10 PW7 Constable S.K. Sharma has proved the attested copy of DD No. 23 dated 16.12.2002 as Ex. PW7/A and true copy of application moved by Sh. Jamshed S/o Jamuluddin as Ex. PW7/B. He deposed that Tata Sumo bearing no. DL-6-CA-2508 was released on superdari to Sh. Jamshed in pursuance of application Ex. PW7/B. Continue.....

-- 20 --

11 Per contra respondents have examined R2W1 Sh. Krishan Kumar, R2W2 Sh. Manish Kumar, R3W1 Sh. Jamshad and R4W2 Sh. Jaspal. R2W1 Sh. Krishan Kumar has proved his affidavit as Ex. R2W1/X and proved documents as Ex. R2W1/1 to R2W1/3.

12 R2W2 Sh. Manish Kumar has deposed that Tata Sumo bearing no. DL-6-CA-2508 was sold in his presence and he had signed the delivery receipt as a witness. He deposed that the car was sold on 15.07.2002 by Sh. Krishan Kumar to Sh. Jagjeet Singh and Sh. Jagjeet Singh had signed the delivery receipt Ex. R2W1/1.

13 R3W1 Sh. Jamshad has proved his affidavit as Ex. R3W1/X. R4W2 is UDC Sarai Kale Khan Transport Department, who has proved the computerised record as Ex. R4W2/1 of DL-6C-A-2508. He deposed that on 15.12.2002 Sh. Krishan Kumar was the registered owner of the vehicle no. DL- 6C-A-2508.

Continue.....

-- 21 --

14 Arguments were heard at the bar. Ld. Counsel Sh. Sheetal Tyagi for claimants, Ld. Counsel Sh. B.L. Khurana for respondent no.2, Ld. Counsel Sh. G.S. Kamal for respondent no.3 and Ld. counsel Sh. S.C. Sharma for respondent no.4 were heard at length.

15 I have perused the records of the case and considered the submissions. My issue-wise findings are as follows :

Issue No.1.

16 PW-1 Smt. Sagbeera @ Sabra in her affidavit Ex. PW1/X, has testified that the driver of the Tata Sumo was driving it rashly and negligently. That he steered the Tata Sumo to its extreme left while approaching a bridge and in the process Tata Sumo fell down in a ditch. Above mentioned version of PW-1 in para no.1 of Ex. PW1/X has gone completely unchallenged and uncontroverted. No suggestion Continue.....

-- 22 --

was given to her to the effect that driver of Tata Sumo was not rash and negligent. It was not suggested to her that Tata Sumo was not steered to its extreme left and had not fallen down in a ditch. In the circumstances it can be safely concluded that issue of rashness and negligence stands proved by the petitioners.

17 Assertion of Ld. counsel Sh. S.C. Sharma for Insurance Company, Ld. counsel Sh. B.L. Khurana for registered owner Krishan Kumar and Sh. G.S. Kamal, Ld. counsel for respondent no.3 to the effect that accident has not been proved as the DD Writer from Police Station Killa, Bareilly has not been examined, is of no help in view of the substantial evidence having been led by the petitioners. Assailment of testimony of PW-1 on the basis of disclosure on 25.02.2005, in the cross-examination to the effect that she was not in a position to tell about the exact speed of the Tata Sumo and existence or non-existence of the traffic on the bridge, is of no help. The testimony in this regard cannot be said to be untrustworthy as being an illiterate Mohammedan lady PW-1 Continue.....

-- 23 --

Smt. Sagbeera @ Sabra was not expected to know the speed. Her version that Tata Sumo was at high speed clearly speaks about rashness and negligence. Unawareness about traffic could have been possible for so many reasons which Ld. counsel for respondents failed to elicit from her and cannot be given any benefit on this count.

18 It need not require mention that Ld. counsel for respondents are aware that in a claim case conclusion are to be based on the basis of 'preponderance of probabilities' and not on the basis of 'proof beyond reasonable doubt'. It is also equally true that Tribunal has to conduct an inquiry and not a trial as is done by criminal/civil courts. Parameters applicable at the time of conduct of inquiry and trial are different. On the basis of evidence of PW-1, as a Tribunal, I have no hesitation at all to observe that petitioners have established the issue of rashness and negligence from the testimony of PW-1. 19 PW-2 Sh. Mohd. Rizwan on 25.02.2005 in his affidavit Ex. PW2/X has testified on the lines of PW-1 and has Continue.....

-- 24 --

corroborated PW-1 in material particulars concerning rashness and negligence. This is another reason for holding in favour of the petitioners. Assailment of the testimony of this witness on the ground that PW-1 and PW-2 have differed about distance between the place of accident and place of starting point is of no help as the same is a minor contradiction not going to the root of the case. PW-3 Sh. Mohd. Irfan has corroborated PW-2 with respect to this aspect and there is no need to discuss this point any further as material question is as to whether driver of Tata Sumo was rash and negligent or not. PW-3 Sh. Mohd. Irfan, PW-5 Sh. Israr Ahmad have not been asked any question about rashness and negligence and their testimony have gone completely unchallenged and uncontroverted concerning rashness and negligence. PW-4 Sh. Israr Ahmad and PW-5 Sh. Ali Ahmad have also supported PW-1 to PW-3 and there is no hitch in observing that issue no.1 stands proved by the petitioners.

20 Petitioners have proved the DD by way of testimony of PW-7 Constable S.K. Sharma and driver of Tata Sumo Continue.....

-- 25 --

namely Sh. Sadiq, respondent no.1. has not stepped into the witness box. A presumption is there with respect to official acts having been carried out in a proper manner as envisaged U/s 80 and 114 of the Indian Evidence Act. Adverse inference has to be drawn against Sadiq (driver of Tata Sumo) who has not appeared. So these factors also categorically point out towards rashness and negligence on the part of the driver of Tata Sumo. Postmortem report has been proved as Ex. PW6/A, in which the cause of death is given as antemortem injuries received by blunt force likely to be sustained in a road accident. Sustaining of injuries by other occupants has also been established by medical records, assertions with respect to which, of the petitioners in their affidavits, have gone unchallenged and uncontroverted. Mohd. Sadiq, driver of Tata Sumo has not stepped in the witness box for which an adverse inference has to be drawn. Reliance is placed on New India Assurance Co. Ltd. Vs. Dhanesh Kumar and ors. reported in I (1994) ACC 561.

21 In view of the above going discussion, issue no.1 is Continue.....

-- 26 --

decided in favour of the petitioners and against the respondents.

Issue No.2.

22 Assessment of compensation in injury as well as fatal cases is not easy, if not difficult. It is beset with many difficulties. Every person has his own perceptions, reasoning, view point so on and so forth. In view of this reason Hon'ble Mr. Justice Madan B. Lokur in 2005 ACJ 942 titled as Balwanti Devi and others Vs. Surjit Singh and others, has observed that assessment of compensation will always be subject to criticism by one set of the contestants. Principles of assessment of compensation have been laid down time and again. Advertance to them in detail will amount to burdening of the judgment. I deem it sufficient to make reference to full bench decision of Punjab & Haryana High Court titled as Laxman Singh Vs. Gurmeet Kaur reported in 1979 ACJ 170, Karnataka High Court titled as Ganesh Vs. Sayyed Muneed Continue.....

-- 27 --

Ahmad and others reported in 2002 ACJ 1463 and Hon'ble Delhi High Court titled as B.N. Kumar Vs. Delhi Transport Corporation and others reported in 2006 ACJ 77. I now proceed to assess the compensation. My assessment in individualized cases is as follows : Suit No. 21/04 23 PW-1 Smt. Sagbeera @ Sabra in her affidavit Ex. PW1/X has testified in para no. 6 that her husband was 52 years of age. In the postmortem report, age of Usman has been given as 65 years. In the statement given by Smt. Sagbeera @ Sabra on 04.02.2004 for the purpose of interim compensation, she has given the age of her husband between 60-65 years. She has given her age as 50-55 years. In view of statement on oath before the court on 04.02.2004, coupled with the postmortem report I have no hesitation to observe that deceased Usman was 65 years of age at the time of accident/death. So the age has been ascertained.

Continue.....

-- 28 --

24 In para no. 4 of Ex. PW1/X Smt. Sagbeera has testified that her husband was working as Tailor Master with M/s Nancy Crocks Pvt. Ltd. and was earning about Rs. 5,000/- per month. She has stated that out of the same Rs. 3,000/- was the salary and Rs. 2,000/- was the over time. No documentary proof with respect to income, educational qualification and skill of the deceased has been proved on record. Accordingly, I have no hesitation to apply the standard of minimum wages. Minimum wages of an uneducated and unskilled worker on the date of accident (15.12.2002) were Rs. 2,679.70 paise (say Rs. 2,700/-). Thus annual income of the deceased was Rs. 32,400/- (2,700 x 12 = 32,400/-). Out of it 1/3rd has to be deducted towards personal expenses. Rs. 32,400 - 10,800 = 21,600/-. As per schedule appended to 163A multiplier applicable with respect to the age of 60 and above is that of 5. Applying the same the total payable compensation comes to Rs. 21,600 x 5 = 1,08,000/-. The submission of Sh. Sheetal Tyagi for award of future prospects as well as for application of higher multiplier cannot be considered for the reason that no evidence what to talk of Continue.....

-- 29 --

proper evidence with respect to income of the petitioner has been led. Another reason is the age of the deceased which was 65 years and it is common knowledge that at this age the income starts taking a reverse trend. 25 To the above mentioned amount of assessed compensation are added a sum of Rs. 10,000/- towards funeral expenses, a sum of Rs. 20,000/- towards loss of consortium and a sum of Rs. 20,000/- towards loss of love and affection. A sum of Rs. 5,000/- on account of medical bills is also being awarded for the reason that deceased had received indoor treatment in between date of accident and death (15.12.2002 to 22.12.2002).

26 Apportionment of the amount awarded is as follows:

1 Smt. Sagbeera @ Sabra Rs. 1,13,000/- 2 Ms. Sayema, Rs. 50,000/-

Continue.....

-- 30 --

27 Smt. Sagneera @ Sabra is directed to keep a sum of Rs. 50,000/- in Fixed Deposit in a nationalized bank for a period of three years from today with no facility of loan, premature withdrawal, mortgage etc. She shall, however, be entitled to draw interest. It is directed that the share of compensation awarded to the claimant no.4 Ms. Sayema be invested in Fixed Deposits with any Nationalized Bank till the time of her attaining the age of majority or in the alternative in Monthly Income Scheme of Post and Telegraphs till the time of her attaining the age of majority without any facility of loan, advance or withdrawal etc. No amount is being awarded to Mohd. Irfan and Mohd. Rizwan, claimant nos. 2 and 3, as they are major, have filed separate petitions and were not dependent on the deceased.

Continue.....

-- 31 --

Suit No. 22/04 28 PW-1 in her affidavit Ex. PW1/X, in para no.7 has given the extent of expenses on treatment, medicines, conveyance, good diet and doctor fees etc. as Rs. 70,000/-. 29 After the medical records of Smt. Sagbeera @ Sabra are adverted to, it is revealed that she had sustained fracture of right thigh. She was treated at Maharana Partap District Combined Hospital, Bareilly. Discharge slip Ex. P-1 shows that she was admitted on 15.12.2002 and was discharged on 23.12.2002. She has also proved Ex. P-2, which is an out patient ticket dated 12.06.2003, which makes a mention that Smt. Sagbeera @ Sabra had an history of operation of right femur shaft. She was advised some investigations and she visited the hospital on 19.06.2003 also. On 19.06.2003 investigations were reported to be normal and status of operation conducted by District Hospital, Bareilly was found to be O.K. Ex. P-5 is a slip of Gopi Poly Clinic dated 12.03.2003, which shows that some medicines were taken by Continue.....

-- 32 --

Smt. Sagbeera @ Sabra.

30 Except the above mentioned three documents no other medical record is there. No bills of medicines, conveyance and doctor fees have been placed on record by the petitioner. No prescription for special diet has been brought to my notice. Ld. counsel for the respondents have vehemently argued that the treatment being free was the reason for non- production of medical bills. The assertions on account of expenses of diet, conveyance etc. were also challenged. It was argued by the respondents that Smt. Sagbeera @ Sabra had not sustained any expenses. Assertion of Smt. Sagbeera @ Sabra in para no.12 concerning her working as a maid servant in different kothies was also challenged on the ground that no proof in this regard was placed on record. It was argued that she could not have been paid at the rate of Rs. 3,000/- per month for working as a maid servant in various kothies. Her assertion concerning she being disabled has also been challenged on the ground that no disability certificate has been produced and medical records indicate to the contrary. It Continue.....

-- 33 --

is admitted case of petitioner that disability not being there, certificate cannot be produced.

31 I have considered the respective submissions and have given my anxious consideration to the evidence led by the petitioner. Keeping into view all the facts and circumstances including the fact that Smt. Sagbeera had sustained # of right femur shaft, treatment having been obtained in Government Hospital, recovery being complete on 19.06.2003 etc., as discussed above, I deem it expedient to award a consolidated sum of Rs. 45,000/- towards pecuniary and non-pecuniary heads viz a viz medical bills, special diet, conveyance, attendant charges, loss of earning and pain & sufferings etc. etc. In my considered view a sum of Rs. 45,000/- will be a just compensation.

Suit No. 23/04 32 Petitioner in affidavit Ex. PW2/X, in para no.4 has testified that he remained admitted from 15.12.2002 to 23.12.2002 at District Hospital, Bareilly. That he also obtained Continue.....

-- 34 --

treatment at Gopi Clinic, where he was operated for the compound fractures of left leg. That a steel plate was inserted and fitted in his thigh. It has been further testified that a sum of Rs. 60,000/- was spent on treatment, medicines, good diet, conveyance etc. That he has also suffered on account of marriage prospects. He has also testified that at the time of accident he was earning Rs. 4,000/- (Rs. 2,500/- as salary and Rs. 1,500/- as over time) and has now become jobless on account of injuries and permanent disability. 33 Assertions of the petitioner have been vehemently refuted by Ld. counsel for the respondents for the same reasons on which the same were challenged with respect to Smt. Sagbeera @ Sabra. It was submitted that in the absence of documentary evidence, this Court should not believe the self serving assertions of the petitioner as the same will amount to setting of a bad precedent and actuate other persons to get involved in false accidents only for the purpose of getting compensation. It was argued that Indian situations be kept in mind while assessing compensation.

Continue.....

-- 35 --

34 In order to award just compensation, I am having a look at the medical records of the petitioner as the same are the proper guide for arrival of a just conclusion. Ex. PW2/P-6 is the discharge slip of Maharana Partap District Combined Hospital, Bareilly. It shows that Sonu was admitted on 15.12.2002 and was discharged on 23.12.2002 for treatment of fracture of left thigh. Ex. PW2/P-7 is a slip of x-ray department dated 01.04.2003. Ex. PW2/P-8 is out patient ticket of Deen Dayal Upadhayay Hospital. In the same it is mentioned that Sonu was operated on 28.12.2002 for left thigh. It appears that some complication arose and that is why Sonu went to Deen Dayal Upadhayay Hospital. Medical prescription of 10th of April, 2003 shows that some medicines were provided. There is a mention of four months old fracture of femur shaft for which plating was done. There is another slip dated 08.05.2003 which also shows that some medicines were prescribed. Reverse of the same shows that knee mobilization was advised. Ex. PW2/P-10 is the prescription slip of Gopi Clinic. This mentions about medicines and does not mention about Continue.....

-- 36 --

indoor treatment as put forth in 4th and 5th line of para no.4 of Ex. PW2/X. No disability certificate is there. 35 During the course of arguments it was categorically conceded that no disability certificate was there or could be produced. I have perused the medical records carefully and considered the submissions. The reasons and analogy of Sagbeera's case applies equally to the present case. Fracture is that of thigh. Although there will be some loss on account of marriage prospects, but the same cannot be said to be of substantial nature as sustaining of injuries may take place with any one and healed fracture of thigh does not come much in the way of marriage.

36 I have considered the respective submissions and have given my anxious consideration to the evidence led by the petitioner. Keeping into view all the facts and circumstances of the case discussed above, I deem it expedient to award a consolidated sum of Rs. 60,000/- towards pecuniary and non- pecuniary heads viz a viz medical bills, special diet, Continue.....

-- 37 --

conveyance, attendant charges, loss of earning, pain & sufferings and marriage prospects. In my considered view a sum of Rs. 60,000/- will be a just compensation. Suit No. 24/04 37 Petitioner in Ex. PW3/X, in para no.2 has testified that he received compound fracture in right hand, grievous injuries on left hand and multiple injuries all over the body. In para no.3, it has been testified that he was admitted at District Hospital, Bareilly on 15.12.2002 and was discharged on the same day. That he had to be admitted on 16.12.2002 at AIIMS Hospital and remained admitted at AIIMS Hospital till 17.12.2002. That after 24.12.2002 he received treatment as a outdoor patient. In para no.4, a sum of Rs. 25,000/- has been testified, as having been spent on treatment, medicines, conveyance, doctor fees, good diet etc. In para no.15, income has been asserted at the time of accident, to be Rs. 4,000/- (Rs. 3,000/- as salary and Rs. 1,000/- as over time). It has been asserted that petitioner has become disabled and jobless.

Continue.....

-- 38 --

On the lines of his brother loss of marriage prospects has also been testified as having been suffered. 38 Ld. counsel for the respondents has assailed the assertions on the similar lines of the cases referred above and I am not reproducing the same for the sake of brevity and the same be read as part of this para. Suffice to say that in this case also there is no disability and another difference is that petitioner has given pecuniary damages loss as Rs. 25,000/- whereas it was given as Rs. 60,000/- with respect to Mohd. Rizwan.

39 For the purpose of assessment of just compensation medical records are the best guidance factor, in an injury case. Petitioner has not proved his record with respect to District Hospital, Bareilly. He has also not proved the record of AIIMS Hospital. Ex. PW3/P-11 is out patient ticket of Deen Dayal Upadyayay Hospital. Perusal of the same goes to show that fracture of humorous shaft right was sustained and plaster of paris was applied on 24.12.2002. Ex. PW3/P-12 also shows that treatment was obtained on 13.03.2003 at Deen Dayal Continue.....

-- 39 --

Upadhayay Hospital as an out patient and petitioner was advised shoulder mobilization exercises. X-ray shoulder was done on 8th of May, 2003. As per Ex. PW3/P-12, plaster of paris was removed on 14.01.2003. On 11.02.2003 it was noticed that fracture had knitted. No pain was found at the site of fracture. However, some abnormality in mobilization was noticed. Ex. PW3/P-13, PW3/P-14, PW3/P-15 and PW3/P-16 are the investigation slips. X-ray chest was found normal. Report of x-ray shoulder done on 05.02.2003, has been placed on record. As per Ex. PW3/P-18 clinical diagnosis was fracture dislocation of right shoulder. As per examination dated 28.01.2003 patient was declared as provisionally fit subject to confirmation of mobility. Ex. PW3/P-17 is a slip with respect to taking of x-ray on 10.05.2003. Further treatment records in pursuance of the same have not been placed on record, meaning thereby that everything became normal thereafter. No disability has been sustained admittedly. 40 Keeping into view all the facts and circumstances of the case discussed above, I deem it expedient to award a consolidated sum of Rs. 45,000/- towards pecuniary and non-

Continue.....

-- 40 --

pecuniary heads viz a viz medical bills, special diet, conveyance, attendant charges, loss of earning, pain & sufferings and marriage prospects. The reasons for awarding less than Mohd. Rizwan are that petitioner failed to prove the records, healed earlier than Mohd. Rizwan, was treated conservatively and suffered less pecuniary damages as per pleadings.

Suit No. 25/04 41 Petitioner in Ex. PW5/X has testified in para no.2 that he received grievous injuries in left ear, head injury and multiple injuries. In para no.3, it was testified that he was removed to District Hospital, Bareilly and was discharged on the same day. That he got treatment from private doctor from 16.12.2002 to 14.02.2003. In para no.4 a sum of Rs. 30,000/- has been testified to have been spent under different heads of treatment, medicines, good diet etc. In para no.5, income of the petitioner has been shown as Rs. 7,000/- per month and it has been asserted that after the accident the petitioner has Continue.....

-- 41 --

become disabled and jobless.

42 Let documents be perused. Mark D is a prescription of Janta Clinic dated 05.04.2003. It mentions about wound of head and dillenm. A sum of Rs. 4,950/- has been shown. This is a photocopy and Ld. counsel for the respondents have vehemently argued that it should not be considered. It has also been assailed on the ground that it is of much much later date than the date of accident and should not be considered in the absence of proving of record of District Hospital, Bareilly (Government Hospital).

43 Another document is that of Krishna Hospital, Bareilly and is dated 15.12.2002. This is assailed by the Ld. counsel for respondents on the ground that why this petitioner did not went to Government District Hospital, Bareilly where other injured persons went. In Ex. PW5/22, no history of accident has been given. Mark D is not connected with Ex. PW5/22 and possibility of injury which is subject matter of Mark D being sustained independently cannot be ruled out. This is Continue.....

-- 42 --

another reason for respondent for assailment. 44 I have considered the submissions. Non-proving of records of Hospital has to go against the petitioner and it has to be observed that sustaining of grievous injuries has not been proved. It has also to be observed that Mark D has not been connected with Ex. PW5/22. However, travelling of petitioner in the Tata Sumo at the time of accident is not disputed. It has also come on record that Tata Sumo had fallen down from a bridge. In view of this fact situation some injury may be of very simple nature must have been sustained by the petitioner for which he requires to be compensated. Keeping in view the facts and circumstances explained above including failure of the petitioner to prove Mark D, its connectivity with Ex. PW5/22, failure to prove grievous injury etc., a sum of Rs. 7,000/- will be just compensation under all probable and possible heads for a simple injury. I deem it pertinent to mention that in Ex. PW5/22 the medicines prescribed are bicasul, ibumax and cipton and no diagnose is there.

Continue.....

-- 43 --

Suit No. 26/04 45 Sh. Israr Ahmad in his petition, in para no.13, has stated that a sum of Rs. 4,000/- was spent on 15.12.2002 in Krishna Hospital. That a further sum of Rs. 5,000/- was spent at Suman Hospital. He has also pleaded that a total sum of Rs. 25,000/- has been spent on his treatment, medicines, Doctor fees, good diet, conveyance etc. In the affidavit Ex. PW4/X, in para no.4 a sum of Rs. 25,000/- has been testified as having been spent. In para no.9 original prescriptions of Krishna Hospital and Suman Hospital have been proved as PW4/18 and PW4/19, original x-ray report dated 15.12.2002 has been proved as Ex. PW4/20, OPD Card dated 13.03.2003 issued by Deen Dayal Upadhayay Hospital has been proved as Ex. PW4/21. X-ray report of Deen Dayal Upadhayay Hospital has been proved as Ex. PW4/22. Salary slip has been proved as Ex. PW4/23.

46 In order to assess the amount of compensation, a perusal of medical documents is required. Ex. PW4/18 is a slip Continue.....

-- 44 --

of Krishna Hospital, in which it stands mentioned that petitioner sustained fracture of clavicle left. On the reverse of PW4/18 it stands mentioned about clavicle brucetel of medium size of Mehta Surgicals. In Ex. PW4/20 x-ray of left shoulder and left arm have been reported to be normal, whereas fracture with respect to clavicle has been mentioned. Slip dated 17.12.2002 Ex. PW4/19A shows that Israr Ahmad had sustained fracture of clavicle left. It also shows that bandage for a period of three weeks was prescribed in order to treat the fracture of clavicle conservatively. Ex. PW4/21 is a follow up slip of out patient Department of Deen Dayal Upadhayay Hospital. Date of injury has been given as 15.02.2002 (it should have been 15.12.2002). This is of 13th March, 2003. Petitioner felt some pain and that is why he went to Deen Dayal Upadhayay Hospital. He was kept on antibiotics and pain killers. Except the above mentioned documents there are no medical bills. 47 No bills for purchase of medicines have been proved on records of this case. Petitioner has preferred not to place on record the receipts with respect to Rs. 4,000/- and Rs.

Continue.....

-- 45 --

5,000/- of District Hospital Bareilly, Krishna Hospital and Suman Hospital as pleaded in para no.13 of the petition. No prescription about treatment still being continuing has been proved in evidence. No disability certificate is admittedly there. No documentary proof with respect to special diet and conveyance has been brought to my notice. Medical prescriptions do not disclose that special diet was prescribed. Salary slip as testified in the last line as Ex. PW4/23 is not the pay slip and on the other hand is a detail with respect to EPF Account of the petitioner.

48 Ld. Counsel for Insurance Company has vehemently argued that petitioner has not spent the amount of Rs. 25,000/- as testified. He has submitted that had it been so, then petitioner would have shown the bills. He has also argued that concerned doctor who treated the petitioner as an outdoor patient has not been examined and in the circumstances no amount should be paid to the petitioner. Ld. counsel Sh. Sheetal Tyagi for the petitioner on the other hand has argued that petitioner sustained fracture of clavicle and even if he had Continue.....

-- 46 --

not produced on record the treatment bills, petitioner must have suffered pecuniary as well as non-pecuniary damages. He submitted that let the petitioner be paid just compensation by way of estimation corresponding the same with the nature of injury.

49 I have considered the above mentioned respective submissions and have considered all the facts and circumstances of the case. I have taken into consideration the nature of injury, nature of treatment, period of treatment, evidence led by the petitioner in support of his assertions, arguments advanced and I am of the considered view that a sum of Rs. 45,000/- will be a just compensation under all the probable heads of treatment expenses, good diet, doctor fees, loss of earning and pain and sufferings etc. Suit No. 27/04 50 Petitioner in his affidavit Ex. PW4/Y has testified that Kumari Farheen received grievous head injury and she received eight stitches. That she also received multiple injuries Continue.....

-- 47 --

all over her body. In para no.4, it was testified that she was admitted on 15.12.2002 and discharged on the same date. That a sum of Rs. 15,000/- has been spent and treatment is still going on. That Kumari Farheen has suffered mentally as well as physically on account of the accident. Ld. counsel for the Insurance Company has argued that Kumari Farheen has not sustained any injury in this case and case has been filed only for the sake of filing and for availing compensation for which Kumari Farheen is not entitled. He has submitted that petitioner has failed to prove the medical record with respect to Kumari Farheen and in the absence of the same no amount can be awarded.

51 I have considered the submissions made by Ld. counsel for the Insurance Company. I have found that no medical record has been proved by the petitioner by virtue of which it can be said that Kumari Farheen sustained injuries as put forth by Israr Ahmad in affidavit Ex. PW4/Y. Careful perusal of the record has led me to a slip of Krishna Hospital of Kumar Farheen. In this it has been mentioned that Kumari Continue.....

-- 48 --

Farheen sustained CLW in scalp on front temporal left. She was prescribed some medicines on 15.12.2002. On the reverse of the same it is revealed that she was given some medicines and was advised to treat the injury with ice. The slip no where mentions that eight stitches were given to Kumari Farheen on her head as averred by the petitioner. The size of the wound has not been mentioned which means that the wound was small and of un-measurable small length. Doctor from Krishna Hospital who examined Kumari Farheen has not been examined who could have testified about the exact nature of injury. This has to go against the petitioner. In view of the above discussion, I have no hesitation in holding that petitioner has failed to prove that Kumari Farheen received any serious injury. Keeping in view the above going discussion, I am of the considered view that a sum of Rs. 8,000/- will be a just compensation under all the probable possible heads with respect to simple injury.

Suit No. 28/04

Continue.....

-- 49 --

52 Petitioner in para no.13 of the petition has asserted that a sum of Rs. 4,000/- was spent in Krishna Hospital. That treatment is still continuing. That Master Tasdiq Ahmad was admitted in Suman Hospital, Bareilly on 17.12.2002 and was discharged on 20.12.2002. That a sum of Rs. 6,000/- has been spent in the treatment which is still continuing. Total expenses are stated to be Rs. 20,000/- consisting of treatment, conveyance, medicines, doctor fees, good diet etc. In the affidavit Ex. PW4/Y, in para no. 12, it has been submitted that Master Tasdiq Ahmad was aged about seven years. In para no.13 it has been submitted that Master Tasdiq received compound fractures in left shoulder, head injuries and multiple injuries all over his body. That he was taken to Krishna Hospital. That he was admitted in Suman Hospital on 17.12.2002 and was discharged on 20.12.2002. That Tasdiq Ahmad was treated by various doctors of private hospitals and treatment is still continuing. In para no.15, a sum of Rs. 20,000/- is stated to have been spent on treatment, medicines, good diet, conveyance etc. and that expenditure is Continue.....

-- 50 --

still going on. That he has sustained loss of studies. Prescription slip has been proved as Ex. PW4/24. 53 Ld. counsel for the Insurance Company has vehemently argued that petitioner is not entitled to any amount as the injuries have not been proved. He has also argued that petition is filed only in order to receive unjust compensation. 54 In order to make the assessment of just compensation to be paid, a glance on medical records is a must. Petitioner has not proved the medical slip of Krishna Hospital and this actuated the Ld. counsel for Insurance Company to argue that petition be dismissed. I have perused the unproved slip of Krishna Hospital of Tasdiq. The same goes to show that he was advised x-ray of left hand and x-ray of left elbow. He was also prescribed some medicines. Sh. Sheetal Tyagi, Ld. counsel for petitioner during the course of arguments did not bring to my notice any slip except the slip of Krishna Hospital. A perusal of slip of Krishna Hospital reveals that there is no mention about the nature of injury. Records of Continue.....

-- 51 --

criminal case concerning nature of injury of Tasdiq have not been produced. In the circumstances I have no hesitation to observe that injury sustained by Master Tasdiq Ahmad must be a simple injury. In view of no proper evidence having been led with respect to treatment expenses, good diet, doctor fees, conveyance etc. I am of the considered view that a sum of Rs. 7,000/- will be a just compensation, as I find force in the argument of Ld. counsel for the Insurance Company to the effect that award of higher compensation in case of a simple injury where the petitioner has remained contended by non- proving of medical records will amount to setting of a bad precedent as the sustaining of simple injury is very easy and possibility of misuse of provisions of Motor Vehicle Act should be vouchsafed. Medical papers (i.e. slip of Krishna Hospital of Tasdiq) do not show that petitioner was admitted in Krishna Hospital on 15.12.2002 and was discharged on the same day. Rather in the same even the date has not been given. The slip has not been proved. No diagnosis is there in the slip. All these reasons justify payment of Rs. 7,000/- only.

Continue.....

-- 52 --

Suit No. 29/04 55 Petitioner in para no.13 has asserted that Master Tohid Ahmad was admitted in Krishna Hospital and was discharged on the same date. That a sum of Rs. 3,500/- was spent at Krishna Hospital. That on 17.12.2002 he was admitted in Suman Hospital and was discharged on 20.12.2002. That a sum of Rs. 7,000/- was spent in Suman Hospital. That a total amount of Rs. 20,000/- stands spent on treatment, medicines, doctor fees, good diet and conveyance. In the evidence led by way of affidavit mere assertions have been reiterated.

56 For coming to a proper conclusion concerning compensation in an injury case advertence to medical records is a must. So I am adverting to the medical records. Ex. PW4/A is a certificate sent by post by Dr. Tilak Raj Kakkar to my Ld. Predecessor, wherein it has been mentioned that records are not maintained by Dr. Tilak Raj Kakkar of Suman Hospital with respect to OPD patients. He has mentioned that Continue.....

-- 53 --

treatment and disease can be told to the Court after seeing the OPD slips. It has been mentioned that Mr. Israr Ahmad and Tasdiq Ahmad were not admitted in Suman Hospital. It has been mentioned that Tohid Ahmad was admitted on 17.12.2002 and discharged on 20.12.2002. It also stands mentioned in Ex. PW4/A that all the records were given to the patient and further details can be given only after seeing the records. Petitioner has not summoned Dr. Tilak Raj Kakkar again who would have helped the court to come to a more appropriate conclusion. Only fact which can be said to be impliedly proved by Dak version Dr. Tilak Raj Kakkar is the admission of Tohid from 17.12.2002 to 20.12.2002. Slip of Krishna Hospital is not decipherable and shows only to the effect that x-ray left shoulder was advised. Another slip of Krishna Hospital is dated 15.12.2002. This also mentions about x-ray of shoulder. Another slip also mentions about x-ray of elbow and left wrist. Slip dated 17.12.2002 of Suman Hospital mentions in it about having of x-ray done of left shoulder including upper arm. It also mentions that x-ray of left hip joint thigh was also advised. This slip shows the diagnosis Continue.....

-- 54 --

as closed spinal fracture of shaft femur left with STI. Patient was applied plaster of paris slab. He was also advised limb elevation and active toe movements. No other document is there. What were the expenses are not decipherable. A mid path approach has to be adopted in this case with respect to grievous injury having been received but having not been proved. Keeping in view the aove discussion including the nature of injury, period of treatment, nature of treatment etc., I deem it expedient to award a consolidated sum of Rs. 30,000/- under all probable possible heads.

Suit No. 30/04 57 Father of Master Arwaz Khan, namely Sh. Ali Ahmad, has testified in his affidavit Ex. PW5/Y that his son was removed to Krishna Hospital and was operated upon for the injuries of his head. That his son remained under treatment from 15.12.2002 to 14.03.2003. That his son had received deep head injury and grievous left ear injury. That treatment at Badayuin was also obtained. A sum of Rs. 40,000/- has been Continue.....

-- 55 --

claimed to have been spent on treatment, medicines, doctor fees, conveyance and good diet. Claim on account of loss of studies has also been made. However, the medical records have not been proved by Sh. Ali Ahmad. He has remained contended by placing on record a photocopy of slip of Janta Clinic which is dated 07.04.2003. No connection of this slip Mark Y has been shown with the accidental injuries. In the circumstances the version of Sh. Ali Ahmad becomes open to doubt. Argument of Ld. counsel Sh. S.C. Sharma for Insurance Company gains weight which is to the effect that under the pretext of accidental sympathy, public money should not be wasted. In the absence of evidence concerning injury, I cannot presume that injury sustained was grievous. Only presumption which can be drawn is the sustaining of simple injury that too without any medical records. In case of a simple injury, I am of the considered view that expenses in the present case would not have gone beyond a sum of Rs. 6,000/- and hence I deem it expedient to award a sum of Rs. 6,000/- under all the probable possible heads. Argument of Sh. S.C. Sharma, Ld. counsel for Insurance Company for dismissal of the petition Continue.....

-- 56 --

with costs cannot be allowed as it is the case of the petitioners that Tata Sumo fell in a ditch. When a Tata Sumo falls in a ditch there is every possibility that its occupants sustain simple injuries atleast. Accordingly argument of Sh. S.C. Sharma, Ld. counsel for Insurance Company is rejected. Relief 58 In view of the foregoing discussion the awards to the extents mentioned are being passed : Suit No. 21/04 a sum of Rs. 1,13,000/-, Suit No. 22/04 a sum of Rs. 45,000/-, in Suit No. 23/04 a sum of Rs. 60,000/-, in Suit No. 24/04 a sum of Rs. 45,000/-, in Suit No. 25/04 a sum of Rs. 7,000/-, in Suit No. 26/04 a sum of Rs. 45,000/-, in Suit No. 27/04 a sum of Rs. 8,000/-, in Suit No. 28/04 a sum of Rs. 7,000/-, in Suit No. 29/04 a sum of Rs. 30,000/- and in suit no. 30/04 a sum of Rs. 6,000/-. On the above mentioned awarded amounts, petitioners shall get interest at the rate of 7% p.a. w.e.f. the date of filing of the petition till realisation. As the amounts awarded are small amounts, no orders for keeping the amounts Continue.....

-- 57 --

in Fixed Deposits are being passed except Suit No. 21/04.

Liability to pay 59 Arguments were heard at the bar on liability aspect at length. Counsel for claimant Sh. Sheetal Tyagi has argued that insurance company is liable to make the payment to the claimants as transfer of vehicle will not absolve the insurance company from its liability qua third parties in view of section 147 & 149 of the Act. Counsel Sh. B.L Khurana for respondent no. 2(transferror and registered owner as per records & assertions) argued that in view of sale of Tata Sumo to Sh. Jagjit Singh before the date of accident, R-2 is not liable to make the payment. Counsel Sh. G.S Kamal for Sh. Jamshed argued that no nexus of Sh. Jamshed with Tata Sumo has been proved and therefore responsibility is that of respondent no. 2. Counsel Sh. G.S Kamal argued that Sh. Jamshed had not got the Tata Sumo released on Superdari. He argued that no report was lodged by Mr. Jamshed with the police of P.S Killa . He argued that R-2 has concocted a story of sale of Continue.....

-- 58 --

vehicle by manufacturing documents. Counsel Sh. S.C Sharma for insurance company requested for exoneration of the company on the ground that in view of transfer of the vehicle by R-2 in favour of Sh. Jamshed insurance contract came to an end and insurance policy became null and void. He argued in the alternative that insurance company has been in a position to prove the breach of terms and conditions of insurance policy and hence it is entitled for its exoneration. He further argued that from the testimonies of PWs it emerges over the record that Tata Sumo was used for hire purposes in violation of terms and conditions of insurance policy. He further argued that failure of respondents including Sadiq to furnish particulars of D/L despite notice u/o 12 R 8 CPC entitles the insurance company for an observation to the effect that Mr. Sadiq was not having any D/L. Sh. Sharma argued that non appearance of Mr. Sadiq, his failure to produce D/L, failure of respondents to furnish the particulars of D/L are the acts/omissions proving the breach in a most ostensible manner. 60 Ld counsel Sh. B.L Khurana has placed on reliance Continue.....

-- 59 --

on AIR 1998 Kerala 128 titled as Mathew Thankana V/s Man Mohan & Others. Counsel Sh. G.S Kamal has placed his reliance on following judgments.

1) Imran Ansari V/s Hajrat Ali Ansari & another 2004, ACJ 1956.(DB)(Jharkhand)

2) Nirmal Rani Sibbal; and others V/s Amajit Singh & Others, 2005 ACJ 1370.

3) Rekhi Ram and another V/s Sukhrania & others, 2003 ACJ, 534.(SC)

4) Ashraf V/s Fathima & Others, 2005 ACJ,

275.(Kerala)(DB).

5) Dulichand V/s Kanti Lal & Others, 2006 ACJ,

276.(Rajasthan).

61 Counsel Sh. S.C. Sharma for insurance company has placed his reliance on National Insurance Co. Ltd. V/s Swaran Singh, (2004) 3 S.C.C. 297 & National Insurance Co V/s Kusum Rani & others, 2006 ACJ 1336. During the course of arguments M.P State Road Transport corporation V/s Continue.....

-- 60 --

Wahidan & Others II(2007) ACJ 398(DB), National Insurance Company V/s Kaadamma & Others, 21005 (2) TAC 956 & P.P. Mohammed V/s Rajapparan & Others , 2003 ACJ 1595 were also relied.

62 I have given my anxious consideration to the respective submissions made. I have also perused the documents placed on the record. I have also perused the testimonies from the angle of liability aspect. 63 It is not disputed that Sh. Krishan Kumar is registered as registered owner on the date of accident in the records of R.T.A . It is also not disputed that on the date of accident, there was a valid policy of insurance having been taken by Sh. Krishan Kumar R-2.

64 In view of mandate of section 157, 147 & 149 of the Act, insurance company is liable to make the payment to the claimants, they being third party. It is no more res-integra that insurer and insured cannot impinge upon the rights of the third Continue.....

-- 61 --

party by way of contractual manufacture. Thus arguments of Sh. S.C Sharma for exoneration of insurance company are not tenable.

65 However, arguments of Sh. S.C. Sharma with respect to grant of recovery rights on the ground of breach of terms and conditions are tenable, the reason for which follow in the succeeding discussion.

66 PW-1 Smt. Satbira in her cross examination testified concerning liability aspect as follows:-

"I do not know if owner of Tata Sumo was respondent no. 2 Sh. Krishan Kumar. I cannot admit or deny that R-3 Sh. Shamsher (should have been typed as Jamshed) was not the owner of Tata Sumo at the time of accident".

67 PW-2 Sh. Mohd Rizwan had testified in his cross examination on 08.04.2005 as follows:-

" The Tata Sumo was taken on hire by my father. I Continue.....

-- 62 --

do not know the charges, which were agreed for such hire with the owner of the offending Tata Sumo. It was not our own vehicle nor we had any acquaintance with the driver".

68 PW-3 Mohd Irfan in his cross examination carried out by R-3 testified as follows:-

"I do not know who were the owner of Tata Sumo, in which we were traveling. I had no prior acquaintance with driver either".

69 In the cross examination carried out by Sh. S.C Sharma counsel for insurance company, this witness testified as follows:-

"The Tata Sumo was taken on hire by my father. I do not know what were the charges agreed upon for the hire, as it was negotiated by my father".

70 PW-4 Irsar Ahmad during his cross examination Continue.....

-- 63 --

carried out on 08.04.2005 by respondent no. 3 testified as follows:-

" I do not know who was the owner of Tata Sumo, in which we were traveling, but it was got arranged through Sh. Jamshed. I do not know if Sh. Krishan Kumar was the owner of this vehicle. I had no prior acquaintance with the driver of Tata Sumo either".

71 This witness during cross examination by Sh. S.C Sharma counsel for insurance company(R-4) on that very date testified as follows in this respect.

"The Tata Sumo was taken on hire for a total charges of Rs. 2000/- for to and from Bareilly. Entire payment has been made to Jamshed. We had not taken any receipt".

72 PW-5 Sh. Ali Ahmad during cross examination by R- 3 testified as follows:-

Continue.....

-- 64 --

"I do not know if Sh. Krishan Kumar was the owner of Tata Sumo. Vehicle was arranged by Sh. Jamshed. We were under the impression that Sh. Jamshed was the owner of the same".

73 During cross examination by Sh. S.C Sharma for R- 4, this witness testified as follows:-

"The Tata Sumo was taken on hire by Sh. Jamshed and the deal was negotiated by my father-in-law".

74 The above quoted versions of PWs clearly bring it on the record that Sh. Jamshed was the ostensible (defacto) owner. There is no doubt in my mind that Tata Sumo was in possession of Sh. Jamshed at the time of hire and at the time of accident. No other conclusion about Tata Sumo being in possession of Sh. Jamshed can be drawn. From the perusal of cross examination of PW-1 to PW-5, it has also emerged on the record that Tata Sumo was taken on hire by the deceased Mohd Usman for going to for attending a marriage. In view of Continue.....

-- 65 --

the above discussion it can be safely observed that Sh. Jamshed R-3 was the ostensible owner and he had given the Tata Sumo on hire to Md. Usman. This conclusion is independently drawable from the testimony of PW-1 to PW-5. 75 I have no hesitation to observe that R-3 Sh. Jamshed was the ostensible owner as the same is also proved from testimony of PW-7 Ct. S.K Sharma. This witness has testified on the basis of DD entry no. 23 dated 16.12.2002 EX. PW7/A. He has proved the application moved by Sh. Jamshed as Ex. PW7/B. He has also testified that Tata Sumo was released to Sh. Jamshed in pursuance of Ex. PW7/B. This witness has also proved the report on the reverse of summons for 2.8.2006 and has testified that it was from P.S Killa, District Bareilly. It is worth mentioning that vide orders dated 16.8.2007, I had allowed the application of the claimant for summoning of PW-7, as during the course of final argument this report was challanged by the respondents. This witness was cross examined and during cross examination by R-3, this witness testified that he has no personal knowledge of the Continue.....

-- 66 --

case. During cross examination by R-2, this witness stated that at the time of accident, he was not posted in the P.S. In view of no personal knowledge there with PW-7 of the accident, respondent submitted that his testimony be not considered. I do not agree. The reason for non agreement is that presumption is attached to the official acts u/s 80 and 140 of the evidence act to the effect that the same have been done in the manner as put forth in the records. No doubt the presumption is rebuttable. It is well settled that onus to rebut is on the party, denying the correctness of records. If this presumption would not have been there Govt would have lost so many cases for no fault of it. Onus in this case was on respondent no. 3 Sh. Jamshed to rebut the presumption that he had not moved the application for Superdari. Onus was upon him that DD no. 23 was not lodged by him. Having it not been so done, respondent no. 3 cannot be permitted to take benefit of absence of personal knowledge of PW-7. It was his duty to produce on record his previous handwriting and signatures. Mr. Jamshed has stated that he was not knowing as to how to read and write English. He has testified in his cross examination that Continue.....

-- 67 --

he can sign in English. I am of the considered view that plea of signing in English has been taken in order to avoid the liability. I am of the considered view that Sh. Jamshed is knowing to sign in Hindi and had intentionally deposed falsely in this regard. I am also of the considered view signatures on the application for Superdari are that of Sh. Jamshed. I am also of the considered view that Ex. PW7/A(DD no. 23)was got lodged by Sh. Jamshed and none else. The reasons which have inclined me to observe so are that in the application addressed to S.H.O, Killa Bareilly, it stands mentioned on behalf of Sh. Jamshed that Sadiq s/o Abdul, r/o H.No 572, Kaucha Tihar had gone to Bareilly in the marriage of one of his relative. It has been submitted that Sh. Sadiq could not control the Tata Sumo in the process of saving a jeep coming from the front side and caused the accident. The names of Ali Ahmad, Israr Ahmad and their children have been mentioned as the family members of Jamshed. The time is given as 11.30 A.M. The application mentions about the telephone number of Sh. Jamshed as well as his house number. Sh. Jamshed has not denied in his evidence that telephone numbers were not Continue.....

-- 68 --

belonging to him. He has not produced on record the record of telephone no. 25138269 and 25738218. Sh. Jamshed has not examined, Mr. Ali Ahmad, Mr. Israr Ahamd and their children. Non examination inclines me to observe that in order to avoid the liability, story has been concocted by Sh. Jamshed. 76 Testimony by way of Ex. R3W1/X is not of much help to Sh. Jamshed as he admitted that he was not knowing the contents of Ex. R3W1/X. During cross examination by R-2, he amended his version and submitted that he can sign in Urdu and cannot write Urdu alphabets. This witness very conveniently denied that he was not knowing Sh. Manish Kumar, which version is false, as Sh. Manish Kumar has categorically stated that he was knowing Sh. Jamshed. During cross examination R2W2 stated that possession of Tata Sumo was handed over at the shop of Mr. Jamshed. This witness identified R-3 Sh. Jamshed in the court who is Proprietor of Anmol Motors. Sh. Jamshed admitted that he has a work shop at the address given by Sh. Manish Kumar, but denied that he was knowing Sh. Manish Kumar.

Continue.....

-- 69 --

77 In view of above going discussion, I have no hesitation to observe that Sh. Jamshed has deposed falsely to avoid liability and is the ostensible owner and had given Tata Sumo on hire to Mohd. Usman. This fact entitles the insurance company for grant of recovery rights. 78 Insurance company has proved the insurance policy as Ex. R4W1/1. The same contains the following two important stipulations concerning limitations as to use or class of persons entitled to drive. It will be convenient to reproduce the same herein below:-

"Use only for social, domestic and pleasure purpose and the insured's own business. This policy does not cover, the use for hire and reward or for organized racing and pace making, reliability trial and speed-testing, the carriage of goods other than samples. In connection with any trade or business used with any purpose, in connection with the Motor Trade.

Continue.....

-- 70 --

79 Person entitle to drive clause.

"Any person including the insured provided that the person driving holds an effective D/L at the time of accident and is not disqualified from holding or obtaining such licence. Provided also that a person holding an effective learner licence may also drive the vehicle and such a person satisfy the requirement of rule no. 3 of Central Motor Vehicle Rule 1989".

80 Insurance company has also proved that notices were issued to Sh. Sadiq, Sh. Krishan Kumar, Sh. Manish Kumar and Sh. Jamshed u/o12R8CPC vide Ex. R4W1/2 to Ex. R4W1/9. Company has also proved Ex. R4W1/10 dated 27.2.2006, wherein registered owner from 16.5.2001 to 16.4.2003 has been shown as Sh. Krishan Kumar respondent no. 2. Date of accident in this case is 15.12.2002. This makes the fact situation crystal clear that Sh. Krishan Kumar was registered owner as per records. Ex. R4W1/10 goes to show that subsequent registered owner are Smt. Kanchan Garg and Sh. Vijender from 16.04.2003 to 13.12.2005 and from Continue.....

-- 71 --

13.12.2005 onwards.

81 Insurance company has proved Ex. R4W1/11 and Ex. R4W1/12 concerning Tata Sumo. Reading of the notice goes to show that Sh. Sadiq, Sh. Krishan Kumar, Sh. Manish Kumar and Sh. Jamshed were asked to furnish the particulars with respect to D/L of Sadiq. R4W1 in his testimony on 13.2.2007 categorically testified that the vehicle was used for hire basis and driver had no D/L. Version of R4W1 in this regard has gone unchallenged and uncontroverted. Counsel Sh. G.S Kamal remained contended by asking that insurance policy was not in the name of Sh. Jamshed and was in the name of Sh. Krishan Kumar. Counsel Sh. B.L Khurana remained contended by asking about investigation on the part of the insurance company on owner ship aspect. 82 Perusal of testimony of R4W1 goes to show that insurance company has proved its notice under order 12 Rule 8 and its service on respondents. It was not suggested by R-3 and R-2 to R4W1 to the effect that notice u/o 12R8 CPC were Continue.....

-- 72 --

not received by them, meaning thereby that service of notice was effected upon them. In view of the same, the duty was cast upon the respondents to comply with the request made in the notice u/o 12 R 8 CPC, but the same has not been done and presumption in favour of insurance company can be drawn to the effect that Sh. Sadiq had no DL and Tata Sumo was used for hire purposes in contravention of policy conditions. It can be thus said that insurance company has succeeded in establishing the breach of terms and conditions qua insurance policy by way of testimony of R4W1, independent of the testimony of PW-1 to PW-5, discussed supra. In view of testimony of R4W1 also insurance company has become entitled to recovery rights.

83 Counsel Sh. S.C Sharma had argued that in view of D/L not being there with Mr. Sadiq, the presumption be drawn that Mr. Sadiq had not got any D/L at all. I do not deem it expedient to accede to the request of counsel Sh. S. C Sharma to draw the presumption to the effect that Sh. Sadiq had no D/L at all, although I have no hesitation to observe that Continue.....

-- 73 --

breach of showing of effective and valid D/L has been committed. In view of the facts of the case, presumption regarding Mr. Sadiq not having D/L at all cannot be drawn. The reason for the same is that Mr. Sadiq has not appeared. Respondent no. 2 & 3 should have produced him in evidence which has not been so done. Police has not registered the case for the reason that a report was got lodged to the effect that no one was at fault. The report was lodged by Sh. Jamshed(though denied by him). So it will not be appropriate to draw a presumption that Sh. Sadiq was having no D/L at all. Accordingly, request of Sh. S.C. Sharma in this regard is disallowed. Assuming for the sake of argument that contention of Sh. Sharma is true still his request for exoneration cannot be allowed in view of mandate of para 2 of 2005 ACJ, 275. 84 In view of the above going discussion, I have no hesitation to observe at the cost of repetition that it has clearly emerged over the records that R-2 is the registered owner (Dejure owner) and Sh. Jamshed is the ostensible owner on the date of accident. It has also clearly emerged from the Continue.....

-- 74 --

records that insurance company has been in a position to prove the breach of terms and conditions of the insurance policy.

85 Recovery rights are being granted against R-2 as well as R-3. The reasons for awarding the recovery rights against R-2 & R-3 collectively are that both of them have not come to the court with clean hands and have concealed the material facts from the court. One is the registered owner as per R.T.A records the other is ostensible owner. The tribunal has to follow the principles of natural justice and has to take extra care of victims of accident. It can base its conclusions on the principle of equity justice and good conscience. 86 Hon'ble Supreme Court has mandated that question of interse liability involving registered owner, insurance company, ostensible owner etc should not be permitted to stand in the way of grant of compensation to the victims of accident. It has gone to the extent that in cases where it is not possible to come to an appropriate conclusion on Continue.....

-- 75 --

the basis of evidence led by the parties, concerning interse liabilities, Tribunal should leave the question open to be decided either in execution proceedings or in a civil court by the driver, owner, insured, transferrer and transferee etc interse. The present case is also of the nature in which, I deem it expedient to give the liberty to Sh. Krishan Kumar and Sh. Jamshed to get their respective liabilities decided either in the civil court or in execution petition. But before that they shall have to make the payment to insurance company and up to that stage their liability is joint and several. 87 Question of ownership shall be decided in the execution proceedings at a later stage. Adjudication of question of ownership in the real sense between Sh. Krishan Kumar and Sh. Jamshed will require leading of evidence/examination of some more witnesses including Sh. Jagjit Singh to whom the Tata Sumo was allegedly sold by R-2, as per version of R-2. There are certain links missing in the evidence led by R-2 & R-3 as well as their pleading going into which at this juncture is not advisable. I am not ruling out the Continue.....

-- 76 --

possibility of collusion between R-2 & R-3 as well. For this reason also, I don't deem it expedient to decide the question of ownership finally and leave it open for decision either in execution proceedings or in a civil court. At the cost of repetition it is observed that the same shall be done after making of the payment of compensation to insurance company by R-2 & R-3. It does not require mention that Mr. Sadiq is also jointly and severally liable with R-2 & R-3 in the present case qua payment of amount of compensation to the insurance company.

88 Reliance on different judgments of Ld Advocates as mentioned by me in their arguments is of no help to them as crux of all the judgments read with the mandates of Hon'ble Supreme Court is that registered owner remains liable for protecting the public policy, ostensible owner remains liable on account of principles of equity justice and good conscience, driver remains liable for his acts/omissions or on account of he being driver. Insurance company remains liable for protection of third party liability i.e strict statutory liability.

Continue.....

-- 77 --

89 Summary of discussions of liability para is to the effect that insurance company is to make the payment to claimant within a period of 30 days from today. It shall have recovery rights against driver, registered owner Sh. Krishana Kumar and Sh. Jamshed jointly as well as severally. After making the payment to insurance company, respondent no. 2 & Respondent no. 3 shall be entitled to get their interse liabilities decided either in a civil court or in an execution petition. 90 Copy of this order be given to parties for necessary compliance.

File be consigned to record room.

Announced in the open court.

Dated : 22.09.2007 (DILBAG SINGH) JUDGE, MACT: DELHI Continue.....

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

Officer : Mact : Delhi vs Sadiq on 22 September, 2007