IN THE COURT OF MS. [ENTITY]: POMACT (SOUTH01) SAKET COURTS, NEW DELHI INJURY CASE Suit no. : 437/08 Unique Case ID no. : 02403C0297402007 IN THE MATTER OF : 1. Sh. [ENTITY] S/o Sh. Rajesh Babu Saxena R/o C298, Adarah Nagar Balabhgarh, Distt. Faridabad Haryana. & Also 103/7, Colonal Ganj, Kanpur, UP Petitioner Versus 1. [ENTITY] RO1, 88, Janpath, LIC Building, New Delhi & Also A25/27, Oriental House Asaf Ali Road, New Delhi2 2. [ENTITY] S/o. Sh. Sharif Khan @ Sharif R/o. V. P.O. Mewli Distt. Gurgaon Teh. Nuh. Haryana 3. [ENTITY] S/o Sh. Hurmat R/o. Village Bai, Distt. Gurgaon Teh. Nuh. Haryana Respondents
Date of first institution : 09.05.2007 Date of institution in the present court : 20.11.2008 Date of arguments : 27.08.2011 Date of order : 13.09.2011 Present: Ms. [ENTITY], Counsel for petitioner None for R1 and R2
Sh. [ENTITY] and Ms. [ENTITY], counsels for insurer/R3. JUDGEMENT/AWARD
1. Present claim petition has been filed for compensation in sum of Rs. 15,00,000/ by petitioner for self injuries sustained by him in an accident which took place on 02.03.2007 at about 23.15 Hrs. The petitioner riding on a motorcycle UP78AS250 from Ballbhgarh to Krishna Nagar Delhi on reaching Road 13, Kalindi Kunj Sarita Vihar, the offending vehicle a Dumper truck bearing no. HR55D3386 came from behind being driven rashly by the respondent no. 3 hit the motorcycle from behind. The petitioner fell down on the road and offending vehicle ran over the left leg of the petitioner. The petitioner was removed to Apollo Hospital and was admitted under MLC dated 02.03.2007. An FIR no. 171/07 PS Sarita Vihar was registered for this accident.
2. In response to notice of the petition, a joint written statement was filed by R3 (Driver) and R2 (owner) of the offending vehicle denying the claim made in the petition being false. In a separate written statement filed by R1 (insurer) the liability was denied and leave was sought to take all the defenses available to the insurance company under [ACT] however admitted the validity of insurance policy in respect of the offending vehicle for the period 30.01.2007 to 29.01.2008.
3. In response to notice of the petition, respondent no.1 (Driver) and respondent no.2 (owner) of the offending vehicle failed to put their appearance and were proceeded exparte. In a separate written statement filed by R3 (insurer) while denying its liability, however, admitted the validity of insurance policy in respect of the offending vehicle for the period 18.062004 to 17.06.2005.
4. From the pleadings on record of the parties, following issues were framed by Ld. Predecessor vide order dated 03.01.2008 : ISSUES
1. Whether petitioner [ENTITY] received injuries due to an accident which occurred on 02.03.2007 at about 11.15 PM on road no.13A, near bus stand Sarita Vihar, New Delhi and was caused due to rash and negligent driving of truck (duper) No.HR55D3386 by R3, vehicle in question owned by R2 and insured with R1? OPP
2. To what amount of compensation the petitioner is entitled to and from whom?
3. Relief
5. In support of his case, the petitioner placed on record documents such as FIR, Challan, disability certificate, Certificates of educational qualification, visiting card of petitioner, copies of medical bill. The following witnesses were examined in support of his claim petition: PW1, [ENTITY] from PS Sarita Vihar to prove copy of FIR 171/07 being Ex. PW1/1. PW2, Sh. [ENTITY],Record Keepar from Apollo Hospital to prove copy of MLC no.
102/07 being Ex. PW2/1(colly).
PW3, is petitioner himself who proved his affidavit as Ex.PW3/x and supported the averments has made in the petition as to the involvement of the offending vehicle and the rash and negligent driving by its driver resulting inconsequence injuries in person. He also tendered and proved documents Ex.PW1/1 to 70.
6. The respondent insurance company lead evidence by examining Sh. [ENTITY] who proved copy of policy Ex. R1W1/1 and copy of notice under [SECTION] [ACT] sent to the driver and owner of the offending vehicle as Ex. R1W1/2 and its respective postal receipts as Ex. R1W1/ 3 and 4. It was also deposed that the respondent did not provide permit of the offending vehicle and thus offending was not holding the same which amounts to breach of conditions of the insurance policy.
7. I have heard the arguments from both the sides and gone through the case file and my findings on the issues are as under:
8. This is a petition u/[SECTION] & [SECTION] [ACT] as such petitioner is required to establish the rash and negligent driving by driver of the offending vehicle. In the claim petition under [ACT], the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is very mild and is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubts. In the case of [PRECEDENT], it was inter alia held by Hon'ble Supreme Court that the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under [SECTION] and [SECTION] of the [ACT].)
9. In this case, in his affidavit, petitioner has narrated the mode and manner of the accident attributing rashness to the driver of the offending vehicle. A criminal case in the form of FIR no. 171/07 PS Sarita Vihar was registered on 02.03.2007 against the driver. In the case of [PRECEDENT], it was observed that registration of criminal case against driver of offending vehicle is enough to record finding that the driver of the offending vehicle is responsible for causing the accident.
10. In this case petitioner has orally attributed rashness and negligence to the driver of the offending vehicle and filed certified copies of criminal case record which remains unrebutted. From oral testimony of petitioner coupled with documents, it is established that respondent no. 1 was driving the vehicle in rash and negligent manner and victim sustained injuries in alleged accident. In view of the above, as such issue No.1 is decided in favour of the petitioner.
11. Since issue No.1 has been decided in favour of the petitioner, he is entitled to compensation as per provisions of [ACT] as under :
Medical expenses :
12. In this case as per deposition of the petitioner in his affidavit after the accident on 02.03.2007 he was removed to Apollo Hospital where he remained admitted up to 12.03.2007. It is claimed that major operation and skin grafting was done in the Hospital. He received fracture in his left toe and doctors advised his for daily dressing. It is further deposed that thereafter he remained admitted in Handa Medical Centre, Faridabad from 31.03.2007 to 01.04.2007 where operation was done and screw plates were fixed. The petitioner claims difficulty in his toe and due to crush of heel bone he suffered permanent disability as per his claim to the extent of 50% resulting in his disability of walking without Special Shoe. In the deposition the petitioner claims to have taken treatment from Dr. [ENTITY] of Kanpur for four months. He claimed to have been treated by Dr. [ENTITY] for RCT of Teeth. In total he claimed to have spent Rs. Five lakhs.
13. The petitioner has placed on record MLC issued by Apollo Hospita dated 02.03.2007 Ex. PW1/ and on record is Discharge brief Ex. PW1/1 and PW1/4. These documents show that the petitioner was discharged on 03.03.2007 itself from the Apollo Hospital. The petitioner was under the treatment of Dr. [ENTITY] and who has advised him sugery for debrident of wound over (lt) foot. He advised before discharge that patient needs surgical management for Multiple injury (Lt) foot. In this regard Ex.PW1/A being a bill for Rs.14536.72 was filed.
14. Apparently record of next Hospital, Handa Medical Centre in discharge summary on 12.03.2007, Ex. PW1/12 mentioned that after first Aid treatment on Apollo Hospital the claimant was admitted in that Hospital where on opening of dressing it was seen that there was total loss of skin on medial aspect of foot from Ankle to medial 1/3 of first metatarsal. In concluding remarks the Hospital has mentioned an external fixator has been used. In this regard Ex. PW1/17 being a bill dated 12.03.2007 for Rs. 38,050/ shows that the petitioner remained admitted for nine days for which room rent is charged, there are charges for anesthetist, surgeon, cosmetic surgeon and one implant (External fixator) of Rs. 3500/.The further treatment at Honda Hospital is supported by another discharge summary dated 01.04.2007 Ex. PW1/13, mentioning that patient was admitted on 31.03.2007 and discharged on 01.04.2007. The brief summary mentions that he was previously operated for External fixator with Skin flap. The discharge summary concludes with remarks that External fixator taken off and Dressing done and bill of Rs.6900 has been proved as exhibit. Further treatment in the same hospital another receipt of Rs.5700 which shows that he remained admitted from 06.07.2007 to 07.04.2007.
15. The alleged treatment from Dr. [ENTITY] regarding treatment of teeth has not been shown to be related to the accident and the treatment was undertaken in January 2008 much after the date of accident. In none of the initial visits to Hospital there is mention of such injury. MLC also does not make mention of such injury to the denture of the petitioner and same are not considered.
16. The expenses on medical treatment being Rs. Five lakhs is not supported by any documentary evidence except a number of prescriptions issued by Doctors. The petitioner was called upon to provide a list of bills of his claim despite opportunity given. He failed to file the same and above mentioned bills, the petitioner also placed on record medical bills/ cash memo of approximately Rs.22571/. The petitioner in total submitted the following bills as medical expenses:
a) Bill no. 1CS2006109846 dated 03.03.2007 Rs.14,536.72/
b) Bill no.281 dated 12.03.2007 Rs.38,050/ C) Bill no.0001 dated 01.04.2007 Rs.6900/
d) Bill no.008 dated 07.04.2007 Rs.5700/
e) Other Bills Ex. PW1/23 to 57 Rs.22571/ Total Rs.49,707.72/ (rounded off to Rs.49,708/) Loss of future income on account of permanent disability :
17. The petitioner as per his certificates of educational qualification was born on 18.09.1985 and at the time of accident on 02.03.2007 was 22 years of age. He passed course of Pharmaceutical Marketing in June 2006. The petitioner has placed on record certificate of Indian Institute of Medical Representative (IIMR) Pharma Business school which is indicative of fact that he was seeking good employment commensurate to his educational qualification. The accident has made him bed ridden and inflicted upon him severe injuries. A disability certificate issued by Office of Chief Medical Hospital Kanpur for Handicapped graded the disability being 50%. But another disability certificate issued on 08.06.2011 by Medical Board of Pt. Madan Mohan Malviya Hospital, Delhi calibrated disability as 44% permanent physical impairment in relation to his left lower limb. The petitioner pleaded that at the time of accident he was working as Territory Manager in Obsurge Biotech Ltd. and getting monthly enumeration of Rs. 10,000/ per month and placed on record visiting card in this regard. Petitioner has not examined any independent witness to substantiate the same however, in view of his education qualification it can be presumed that petitioner as young graduate capable of bright future. He could have possibly taken up some good employment in pharmaceutical companies and at the time of accident his possible earning could have been Rs. 75,000/ per annum. Incidentally in this case also as per disability certificate issued to the petitioner his disability has been graded as 50% by one certificate while another disability certificate calibrated percentage in relation to affected limb as 44% in relation to left leg. In such circumstances for arriving at compensation under [ACT], the percentage of disability visvis whole body can be taken to be 25% resulting in discounted future earnings. In this case also respectfully following the ratio of the case of [PRECEDENT] (supra), the operative multiplier would be 18. Adopting these formula the damages to compensate petitioner for loss of future earning on account of disability is calculated as 75,000 X 25% = 18750/ which is multiplied with 18 to arrive at compensation of Rs.3,37,500/.
Loss of income :
18. Due to nature of injuries suffered, it can be appreciated that he might have been out of his work for a sufficient period and as such, the petitioner is also awarded a lumpsum of Rs.30,000/ on account of loss of income for the period of his treatment.
Pain and sufferings and loss of disfigurement & enjoyment of life:
19. As for pain and suffering, due to the nature of injury being grievous and permanent disability, the petitioner must have been incapacitated for the considerable period in doing his regular work in the life and he is entitled for compensation on account of physical pain and mental sufferings which was felt by him. So, the petitioner is entitled for compensation in sum of Rs.30,000/ towards pain and suffering, Rs. 40,000/ towards loss of disfigurement and enjoyment of life. Conveyance charges and special diet:
20. Petitioners are awarded Rs.10,000/ under the head of conveyance as it is common knowledge that the victim of vehicular accident is required to under take follow up visits to the doctor. Petitioners are awarded Rs.10,000/ for special diet as it is common knowledge that when one suffers injuries or remains ill, is required to take special diet and extra nourishment for recovery.
21. As such petitioner is awarded the compensation under the following Head: Loss of future income on account of permanent disability : Rs.3,37,500.00 Loss of Income : Rs. 30,000.00 On account of medical expenses : Rs. 49,708.00 Pain & Suffering : Rs. 30,000.00 loss of disfigurement : Rs. 40,000.00 Special diet : Rs. 10,000.00 Conveyance : Rs. 10,000.00 Total : Rs.5,07,208.00 Relief:
22. Accordingly, a compensation of Rs.5,07,208.00 (inclusive of interim award if any) is awarded to petitioner with interest @ 7.5% per annum from the date of filing of petition i.e. 05.03.2007 till its realisation.
LIABILITY:
23. On the question of liability, it is submitted by counsel for insurance company that vehicle was not holding valid permit to ply vehicle in Delhi on the date of accident. This amounts to fundamental breach of condition of policy, thus insurance company is liable to pay compensation. In support of its case, the insurance company got examined, Sh. [ENTITY], as R3W1 who proved the attested copy of policy and also deposed that notice under [SECTION] [ACT] was given to the owner/ Driver by the insurance company for the production of permit to ply vehicle in Delhi on the date of accident and the same was not supplied. Non production of permit to run the commercial vehicle such a defence is legally available to the insurance company under [SECTION] of [ACT]. In [PRECEDENT] and [PRECEDENT], the scope of [SECTION] and [SECTION] of the Act was explained and it was observed that an insurer can avoid its liability only in accordance with what has been provided for in [SECTION] of the 1988 Act.
24. In [PRECEDENT], the aforesaid two judgments were considered and the following preposition of law was laid down by Hon'ble Supreme Court:
" High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal vis`vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of [SECTION] defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable.in [SECTION] of the 1988 Act."
25. In the present case, since the owner has failed to produce permit and further he did not step into witness box to assert that he was having valid permit, in such circumstances, drawing of an adverse inference against him is imperative. The policy issued for the offending vehicle was subject to a condition that vehicle should be driven under a valid permit. However, the owner has failed to produce valid permit hence, there is breach of a fundamental conditions and terms of policy. In view of the settled law that insurance company is liable qua third party and it shall however, vest with a right to recover the amount of liability from insured after depositing the compensation awarded to third party. As discussed above, since there was no permit issued for the offending vehicle to ply as commercial vehicle, so insurance company shall have right to recover the same from respondent no. 2. Accordingly, insurance company shall deposit the amount of compensation and then after depositing shall have right to recover from respondent no. 2 in whose name vehicle is registered.
26. Respondent no.1/insurance company is directed to directly deposit the cheques with SBI Bank, Saket Courts complex branch within 30 days from today and in case of default, penal interest @ 12 % per annum shall be given from the date of filing of delay till deposit of the awarded amount on the account of petitioner in following manners:
27. On deposit of award amount, 40 % of award in respect of petitioner shall be credited in his saving bank account and rest of the amount shall be invested as under
in the Fixed Deposit Account: Fixed Deposit in respect of 10 % amount be deposited for petitioner for one year, Fixed Deposit in respect of 10 % amount be deposited for petitioner for two years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for three years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for four years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for five years, Fixed Deposit in respect of 10 % amount be deposited for petitioner for six years,
28. Interest on all the aforesaid fixed deposits be credited automatically monthly in the saving bank account of the respective petitioner.
29. Withdrawal from the aforesaid saving bank account shall be permitted to claimants after due verification and the Bank shall issue photo identity card to claimant to facilitate identity.
30. No cheque book be issued to claimants without the permission of this court.
31. The original fixed deposit account book shall be retained by the Bank in the safe custody. However, the original pass book shall be given to claimants along with the photocopy of the FD account book/receipt.
32. On maturity, the FDR amount shall be directly credited in the saving bank account of the petitioner. No loan, advance or withdrawal shall be allowed on the said fixed deposit account without the permission of this court. Half yearly statement of account be filed by the Bank in this court.
33. On the request of claimant the Bank shall transfer the Saving Account to any other branch of SBI, Saket Court according to her convenience.
34. Claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account in bank.
35. Let for the identification of the petitioner, the first copy of the petition wherein photograph of the petitioner is affixed, be annexed with the award.
36. Award is passed accordingly. File be consigned to record room only after compliance by insurance company by depositing the award in the manner as stated above. Be awaited for compliance for 30.10.2011.
Announced in the open court on 13.09.2011 [ENTITY] PO : MACT (SOUTH01) 13.09.2011