1 IN THE COURT OF SH.HARISH DUDANI JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI SUIT NO.: 546/11/10 DATE OF INSTITUTION: 30.4.2010. 1. Sh. [ENTITY] S/o Sh.Om Prakash Jain R/o H.No.U207,Shakarpur Delhi110092. Petitioner. Versus 1. Sh. [ENTITY] S/o Sh. Daya Chand R/o 503,Tunda Nagar Johripur,Delhi110094. Driver 2. Sh.[ENTITY] S/o Sh.Prahlad Dutt R/o A35,Rama Park, Newada Uttam Nagar,New Delhi59. Owner 3. M/s [ENTITY] Respondents
Final Arguments heard on : 10.1.2013. Award reserved for : 24.1.2013. Date of Award : 24.1.2013. AWARD
1. Vide this judgment cum award I proceed to decide the petition filed U/[SECTION] and [SECTION] of [ACT], as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 19.11.09, the petitioner was going by his two wheeler LML scooter no.DL6SC6256 from his house to his shop in Connaught Place and when he reached at the crossing of middle circle and radial road no.5 near Odeon Cinema, Connaught Place, New Delhi at about 11am at the same time respondent no.1 while driving offending vehicle no.DL1YB1327, Tata Indigo car rashly, negligently hit the scooter of the petitioner from its left side with great force as a result of this forceful impact petitioner fell down on the road with his scooter and sustained grievous injuries on his left shoulder and chest etc. Petitioner was removed to Dr.RML hospital by CATS van and was got admitted there vide [CASE NUMBER][CASE NUMBER]. The doctor recorded in the MLC that " Patient fit for giving statement. Alleged H/o being hit by a vehicle while riding scooter.H/o dizziness.No.H/o ENT bleed/vomiting/seizure C/o inability to lift left shoulder. Result blunt injury." It is stated that the petitioner was provided treatment in Dr.RML Hospital on 19.11.09 and was discharged on the same day. However he was confined to bed for two months. After discharge from Dr.RML Hospital petitioner is continuing treatment from Dr.[ENTITY] Orthopaedic Surgeon. It is stated that petitioner has incurred more than Rs.2,00,000/ on his treatment, conveyance, rich and high protein diet etc. It is stated that petitioner was 35 years of age at the time of accident working as stationary supplier and earning Rs.15,000/pm.It is further stated that accident was caused due to rash and negligent driving of offending vehicle by respondent no.1,the said vehicle was owned by respondent no.2 and insured with respondent no.3 and as such all the respondents are jointly and severally liable to pay the compensation. It is prayed that Rs.5,00,000/ be awarded as compensation with interest @ 18% p.a. from the date of filing of the claim petition, till its realisation in favour of the petitioner and against the respondents.
3. Respondents no.1 and 2, the driver and owner did not contested the petition and were proceeded exparte on 2.6.2011.
4. Respondent no.3,the insurance company has contested the petition and has filed written statement. Respondent no.3 has admitted that vehicle no.DL1YB1327 was insured in the name of Sh.[ENTITY] respondent no.2/insured vide policy no.V0561126 for the period from 17.11.09 to 16.11.2010. All other averments made on merit are denied.
5. From the pleadings of the parties, the following issues were framed by my ld.Predecessor on 2.6.2011.
1. Whether the petitioner sustained grievous injuries in the accident which occurred on 19.11.09 at Crossing Middle Circle, Radial Road No.5, Odeon Cinema, Connaught Place, New Delhi due to rash and negligent driving of vehicle no.DL1YB1327 by respondent no.1, owned by respondent no.2 and insured with respondent no.3?OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
6. In support of his claim the petitioner examined himself as PW1. He tendered his examination in chief by affidavit which is Ex.PW1/A reiterating therein the contents of the petition. He proved documents Ex.PW1/A to Ex.PW1/H.
7. Respondent no.3,the insurance company has examined Sh.[ENTITY], LDC,Office of RTO, Taxi Unit, Burari, Delhi as R3W1. R3W1 brought the summoned record in respect of taxi no.DL1YB3127 Tata Indigo car and as per record brought by him the said taxi had valid CC carriage permit for plying taxi in Delhi from 13.9.07 to 12.9.12. R3W1 brought the RC particulars of the aforesaid taxi as Ex.R3W1/1 and permit as Ex.R3W1/2.
8. Respondent no.3 examined Sh.[ENTITY], Record Keeper, office of RTO, Loni Road, Shahdara, Delhi as R3W2. He deposed that as per record brought by him driving license no.9520090041481 had been issued in the name of Sh.[ENTITY] S/o Sh.[ENTITY] R/o 503,Tunda Nagar, Johri Pur, Delhi94 and the said license was issued on 29.8.09 and the said license was valid for " light motor vehicle nontransport(car) and motorcycle with gear". R3W2 brought report from the MLO Ex.R3W2/1 and the particulars of driving license as Ex.R3W2/2. R3W2 stated that the aforesaid driving license does not authorise the driver to drive a taxi.
9. R3W3 Ms.[ENTITY], Legal Officer,Future Generali India Insurance Company deposed that the insurance company served upon respondent no.1&2 notice u/[SECTION] [ACT] through their counsel and office copy of notice is Ex.R3W3/1 and postal receipts are Ex.R3W3/2&3. She stated that the notices were not received back unserved and despite notice, respondent no.1&2 have not supplied the copy of driving license in favour of respondent no.1 and the original insurance policy. R3W3 proved certified true copy of insurance policy valid from 17.11.09 to 16.11.2010 as Ex.R3W3/4. She stated that the driver was not holding a valid driving license for driving a taxi and has committed breach of the terms and conditions of the policy.
10.I have heard the Ld. counsel for the parties and perused the record. My findings on various issues are as follows:
11.As the petition has been filed U/[SECTION] [ACT] it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to rash and negligent driving by respondent no.1, the driver of offending vehicle no.DL1YB1327.
12. To determine the negligence of driver of offending vehicle it has been held in [PRECEDENT] as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in [PRECEDENT]). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under [SECTION] , [ACT] against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the [ACT] are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
13.The case of the petitioner is that on 19.11.09, he was going on his two wheeler LML no.DL6SC6256 from his house to his shop in Connaught Place and at about 11am when he reached crossing of middle circle and radial road no.5 near Odeon Cinema,Connaught Place,New Delhi, a car no.DL1YB1327 being driven in rash and negligent manner hit the scooter of petitioner from left side as a result of which he sustained injuries and was removed to Dr.RML hospital. It is stated that a case vide FIR No. 240/09, u/[SECTION] [ACT] was registered at PS Connaught Place.The petitioner examined himself as PW1 and adduced evidence by way of affidavit Ex.PW1/A. In para 2 of affidavit Ex.PW1/A, the petitioner has reiterated the manner of accident as stated in the petition. Respondent no.1&2 have preferred to remain exparte. PW1/petitioner was cross examined by counsel for respondent no.3. In the cross examination,PW1 stated that right side of the offending vehicle hit the left side of his scooter. Petitioner has filed on record copies of criminal record Ex.PW1/A(colly.) in which the petitioner has filed the copy of charge sheet, copy of FIR, copy of site plan, seizure memo of offending car and scooter, copy of driving license of respondent no.1, copy of MLC prepared at Dr.RML hospital, copy of mechanical inspection report of scooter and offending vehicle. The petitioner has also filed on record, the certified copy of order and order of sentence dated 26.2.2011 passed by ld.MM by which the petitioner had compounded the offence u/[SECTION] [ACT] with the accused and accused pleaded guilty for offence u/[SECTION] [ACT] and he was sentenced to pay a fine of Rs.800/ for the offence u/[SECTION] [ACT]. In view of the plea of guilt of respondent no.1 for the offence u/[SECTION] [ACT] and his conviction for offence u/[SECTION] [ACT] vide order dated 26.2.2011 of ld.MM, the petitioner has succeeded in proving the rash and negligent driving of the offending vehicle by its driver. Issue no. 1 is accordingly decided in favour of the petitioner and against the respondents.
14.As the negligence of driver of offending vehicle has been proved the petitioner is entitled to compensation.
COMPENSATION MEDICINES AND MEDICAL TREATMENT
15.In support of expenditure on medical treatment, the petitioner has relied on discharge summary of Dr.RML hospital Ex.PW1/B and treatment record of Consultant of Shanti Mukund hospital Ex.PW1/C and bills Ex.PW1/D1 to D12 amounting to Rs.4960.7/.Apart from the aforesaid bills, the petitioner has not filed any other document to prove any other expenditure on the medical treatment. In the circumstances, petitioner shall be entitled to a sum of Rs.4960.7/ on account of expenditure on medical treatment.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
16.It has been held in [PRECEDENT] as under:
13."The damages for vehicular accidents are in the nature of compensation in money for less of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In [PRECEDENT] [ENTITY] stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but no other process can be devised than that of making monitory assessment."
17.The petitioner has filed on record the MLC prepared at Dr.RML hospital and as per the same, petitioner sustained grievous injuries. As per the discharge summary of Dr.RML hospital Ex.PW1/B, the petitioner was admitted to the said hospital on 19.11.09 and was discharged on the same day and as per same petitioner had sustained fracture clevical, rd th fracture of 3 ,4 rib left side and the petitioner has filed record of his subsequent treatment from Senior Consultant of Shanti Mukund Hospital Ex.PW1/C. In view of the nature of injuries sustained by the petitioner and extent of treatment, the petitioner is awarded a sum of Rs.20,000/ for pain and suffering.
18. On account of accident, the petitioner may not have been able to pursue his day to day routine and may not have been able to perform the daily routine of his family and may not have been able to enjoy the amenities of life. In the circumstance, petitioner is awarded a sum of Rs.10,000/ on account of loss of amenities of life.
CONVEYANCE AND SPECIAL DIET
19. In para 10 of affidavit Ex.PW1/A, petitioner has stated that he spent more than Rs.2,00,000/ on his treatment, conveyance and special diet. However, the petitioner has not specified as to how much amount was incurred on conveyance and special diet. As per the treatment record of the petitioner after the accident on 19.11.09, he was taken to Dr.RML hospital from where he was discharged on the same day and thereafter, he took treatment from Senior Consultant of Shanti Mukund hospital.After discharge from Dr.RML hospital he would not have been able to drive on his own and would have hired the services of private vehicle for going to resident and would have subsequently hired private vehicle/ambulance for treatment from Senior Consultant of Shanti Mukund hospital and for further treatment. In the circumstances, a sum of Rs.5,000/ would be just and appropriate for expenditure on conveyance.
20.Looking at the nature of injuries sustained by the petitioner, petitioner would have taken diet rich in protein,calorie,vitamin and minerals for speedier recovery and would have incurred expenditure on the same. In view of the nature of injuries, a sum of Rs.5,000/ is awarded for special diet.
LOSS OF INCOME
21.In para 8 of affidavit Ex.PW1/A, the petitioner has stated that he was 35 years of age at the time of accident and self employed as stationary supplier and was earning Rs.15,000/pm. In order to prove his income, the petitioner has filed copy of the acknowledgment of the income tax dated 4.3.2011 Ex.PW1/E. The acknowledgment Ex.PW1/E is in respect of assessment year 20102011 which is subsequent to the date of accident i.e. 19.11.09. In [PRECEDENT] the income tax returns filed subsequent to the accident were not taken into consideration. The petitioner has not filed any other proof of his income and petitioner has also not proved his educational qualifications. He has also not proved that he was carrying on the business of stationary as stated in the claim petition by filing any document maintained by him in the regular course of business. In the absence of any other proof of income and educational qualification of petitioner, the petitioner shall be entitled to minimum wages of a skilled worker as on 1.8.09 which was Rs.4377/pm. In para 7 of the affidavit Ex.PW1/A, the petitioner has stated that on account of injuries sustained in the accident, he was confined to bed for a period of six months. Although the petitioner has pleaded that he was confined to bed for a period of six months but he has not filed any medical opinion on record by which he was prescribed rest for a period of six months. In para VI on page 6 of claim petition it is stated that petitioner was confined to bed for two months. In the absence of any medical opinion advising the petitioner rest for six months as claimed by the petitioner, notice can be taken of the fact that due to injuries sustained in the accident, petitioner might have been advised rest for a period of two months. In the circumstances, petitioner will be entitled to loss of wages for a period of three months i.e. Rs.4377x2=8754/.The petitioner has not suffered permanent disability and he has not proved that his future earning is likely to be affected on account of injury sustained by him. Hence, he is not being awarded any amount towards loss of future earnings.
The total compensation is assessed as under:
Medicines and Medical treatment : Rs.4960.7/ Pain and suffering and loss of Amenities of life : Rs.30,000/ Conveyance and Special Diet : Rs.10,000/ Loss of Income : Rs.8754/ TOTAL : Rs.53,714.7/ RELIEF
22.The petitioner is awarded a sum of Rs.53,714.7/ rounded of as Rs. 53,714/(Rs.Fifty Three Thousand Seven Hundred Fourteen only ) with interest at the rate of 9% per annum from the date of filing of petition till its realisation including, interim award, if any already passed against the respondents in favour of the petitioner. The liability of all the respondents being joint and several. The entire amount be released to petitioner. APPORTIONMENT OF LIABILITY:
23.Respondent no.3 has pleaded that the offending vehicle is taxi and respondent no.1 who was driving the offending vehicle at the time of accident did not possess the appropriate driving license to drive the vehicle. Respondent no.3 examined Sh.[ENTITY], LDC, office of RTO,Taxi Unit, Burari, Delhi as R3W1 who stated that the taxi no.DL1YB1327 had valid CC carriage permit for plying taxi in Delhi from 13.9.07 to 12.9.12. He also proved the RC particulars of the aforesaid taxi Ex.R3W1/1 and permit Ex.R3W1/2. Sh.[ENTITY], Record Keeper, Office of RTO, Loni Road, Shahdara,Delhi R3W2 produced the record in respect of driving license no.9520090041481 issued in the name of Sh.[ENTITY]. R3W2 stated that that the said license was issued on 29.8.09 and was valid for "light motor vehicle nontransport(car) and motorcycle with gear." He stated that the aforesaid driving license does not authorise the driver to drive a taxi. R3W2 proved report from MLO Ex.R3W2/1 and particulars of driving license Ex.R3W2/2. Respondent no.3 also examined Ms.[ENTITY], Legal Officer as R3W3 who proved that notice u/[SECTION] [ACT] Ex.R3W3/1 was served upon the respondent no.1&2. She also proved postal receipts Ex.R3W3/2&3 and certified copy of insurance policy Ex.R3W3/4. As per Ex.R3W2/2, respondent no.1 has been issued driving license to drive light motor vehicle non transport(car) and motorcycle with gear. Owner of the vehicle has not appeared in order to prove that he had exercised due diligence in verifying the driving license of respondent no.1 to ensure that he holds a valid driving license for driving the class of vehicle which he was found to be driving.
24.In [PRECEDENT], it was held that:
"(9)It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate license therefor. [ENTITY] who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a license to drive a light motor vehicle only. He did not possess any license to drive a commercial vehicle. Evidently, therefore, there was a breach of the condition of the contract of insurance. The appellant, therefore, could raise the said defence."
25.It was held in [PRECEDENT] on Accident Claims that :
"It is a one thing to say that the insurer will be entitled to avoid its liability owing to breach of terms of a contract of insurance but it is another thing to say that the vehicle is not insured at all. It was further held that [SECTION] which imposes a liability on the insurer must also be given its full effect. The Insurance Company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if the Insurance Company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of the assured."
26.Accordingly,respondent no. 3 being the insurer is directed to satisfy the award and is directed to deposit the award amount within a period of 30 days in UCO Bank, Patiala House Court Branch, New Delhi with interest at the rate of 9% per annum from the date of filing of petition till its realisation with right of recovery from respondent no.1 and 2 i.e. driver and owner. In case of delay, it shall be liable to pay interest @ 12 % per annum.
[ENTITY] to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. [ENTITY] is directed to note the particulars of the award amount in the register today itself.
An attested copy of the award be given to the parties free of cost. File be consigned to Record Room.
Announced in the open court. ([ENTITY]) on 24.1.2013. PO/MACT, New Delhi.