1 IN THE COURT OF MS. BARKHA GUPTA : JUDGE : MACT : (NORTH WEST DISTRICT) ROHINI COURTS DELHI MACT No. : 1197/08 UNIQUE ID No. : 02404C0176632008 [ENTITY] D/o Sh. [ENTITY], R/o V.&.P.O. Chirola, Distt. Eatta, U.P. Also at: E378, Jahangir Puri, Delhi. Petitioner. Versus 1. [ENTITY] S/o Sh. Gajjan Singh, R/o Village Kavav Majra, PS Khanna Sadar, Distt. Ludhiana, Punjab. Also at C/o Kuldeep Singh, R/o H.No. 234, Siraspur, Delhi. (OwnercumDriver/Respondent No.1)
2. [ENTITY], Through its Manager 14, Hansalaya Building, 15, Barakhamba Road, New Delhi. (Insurer/Respondent No.2) [CASE NUMBER] [ENTITY] v. [ENTITY] 1 of 26 Other details: DATE OF INSTITUTION : 10.12.2008 DATE OF RESERVING ORDER : 30.06.2014 DATE OF PRONOUNCEMENT :30.06.2014 AWARD/JUDGMENT
1. The petition under [SECTION] & [SECTION] of the [ACT] has been filed by the petitioner/injured namely Ms. [ENTITY] D/o Sh. [ENTITY], wherein she has prayed that compensation to the tune of Rs. 10,00,000/ alongwith interest at the rate of 12% per annum be awarded in his favour.
2. Brief facts of the case are that on 24.10.2008 at about 8:30 a.m, the petitioner alongwith certain other persons was standing at the bus stand at Outer Ring Road, Jahangir Puri, Delhi and was waiting for the bus, however suddenly a Tata Truck bearing registration No. PB11AE8054 (i.e the offending vehicle) came at a high speed, which at the relevant time was driven by Sh. [ENTITY] (R1) in a rash and negligent manner and the offending vehicle hit against certain persons including her, due to which she sustained injuries and she was taken to BJRM Hospital, Jahangir Puri, Delhi and she had suffered from various [CASE NUMBER] [ENTITY] v. [ENTITY] 2 of 26 crush and grievous injuries on right leg whereby muscles got crushed and skin crafting was carried out, five stitches on skull, grievous abrasion of buttocks coupled with abrasion on other parts of the body. Further, before accident petitioner was gainfully selfemployed as ladies tailor from which she was earning about Rs. 4,000/ per month. She has further submitted that she had incurred huge expenses on her medical treatment, conveyance, attendant and had also undergone severe pain and sufferings. She has prayed that compensation for sum of Rs. 10,00,000/ alongwith interest at the rate of 12% per annum be awarded in her favour and against the respondents as Sh. [ENTITY] (R1) was driving the offending vehicle at the relevant time and he was also the owner of the offending vehicle and the offending vehicle was duly insured with [ENTITY] (R2). He has also submitted that FIR No.533/08 u/s [SECTION] also registered at PS Jahangir Puri, Delhi with respect to the said accident against R1.
3. As per record, Sh. [ENTITY] (R1) who is the drivercum [CASE NUMBER] [ENTITY] v. [ENTITY] 3 of 26 owner of the offending vehicle has not filed any written statement/reply to the said petition and further, vide order dated 04.09.2009, opportunity to file written statement by him was closed by my Ld. Predecessor and thereafter, vide order dated 20.01.2011, he was also proceeded exparte and even thereafter, none had appeared on his behalf.
4. The insurance company (R2) has filed its written statement wherein it has pleaded that it is not aware of the said accident and further, the driver of the offending vehicle was not holding any driving licence at the relevant time and has also submitted that the petitioner had sustained the injuries due to her own negligence.
As per record, the insurance company (R2) has admitted that the offending vehicle was duly insured with it vide policy No. 2001372334100525 which was valid w.e.f 22.12.2007 to 21.12.2008.
5. As per record, vide order dt. 11.11.2009, following issues were framed by my learned Predecessor:
1. Whether petitioner received injuries in road accident on [CASE NUMBER] [ENTITY] v. [ENTITY] 4 of 26 24.10.08 at about 8:30 when he was standing at Outer Ring Road, bus stand, EBlock, Jahangir Puri, Delhi, which was caused due to rash and negligent driving of Truck No. PB11AE8054 which was being driven by R1? OPP
2. Whether petitioner is entitled for amount of compensation and if so, to what amount and from whom?
3. Relief.
6. I have heard final arguments as advanced by Advocate Sh. [ENTITY], Ld. Counsel for the petitioner & Advocate Sh. [ENTITY], Ld. Counsel for R2. None has appeared for R1 to advance final arguments.
7. Before proceedings further, it is pertinent to discuss here that since entire evidence was recorded in [CASE NUMBER] which was also filed by LR's of deceased pertaining to same accident and in the said petition entire evidence was recorded including that of the present petitioner and as such, in the case in hand, no evidence was recorded, hence the case file pertaining to [CASE NUMBER] was summoned from record room and was looked into.
[CASE NUMBER] [ENTITY] v. [ENTITY] 5 of 26
8. From perusal of [CASE NUMBER], it is revealed that the said petition was filed for claiming with respect to the death of Sh. [ENTITY] @ Sh. [ENTITY], who died in the same occurrence/accident regarding which the present petitioner has also filed the present petition separately and the said [CASE NUMBER] was filed by legal heirs of deceased, namelyMs. [ENTITY] (widow), Master [ENTITY], Master [ENTITY] and Master [ENTITY] (minor sons). Further, in the said petition i.e. [CASE NUMBER], the present petitioner/injured, namely Ms. [ENTITY] has also been examined as PW3, who is also an eye witness and apart from her, Sh. [ENTITY] who is another eye witness was also examined as PW4. Further, as per record, the said petition has already been finally disposed of my Ld. Predecessor vide order dated 28.09.2013.
Accordingly, in the given facts and circumstances, since joint/common evidence was recorded in [CASE NUMBER] and in the present case, hence the evidence of the petitioner and another eye witness namely Sh. [ENTITY] [CASE NUMBER] [ENTITY] v. [ENTITY] 6 of 26 who are examined as Pws 3 & 4 are taken into consideration in this case. Accordingly, the findings on various issues framed in the case in hand are discussed in the paras underneath.
9. Issue No.1 "Whether petitioner received injuries in road accident on 24.10.08 at about 8:30 when he was standing at Outer Ring Road, bus stand, EBlock, Jahangir Puri, Delhi, which was caused due to rash and negligent driving of Truck No. PB11AE8054 which was being driven by R1? OPP"
10. As already discussed, the petitioner Ms. [ENTITY] has been examined in [CASE NUMBER] as PW3 wherein she has lead her evidence by way of affidavit Ex.PW3/A and has also produced the documents pertaining to her medical bills and educational qualifications.
She has testified that on 24.10.2008 at about 8:30 hours, while she was standing at the bus stop at EBlock, Jahangir Puri, Outer Ring Road, Delhi alongwith certain other public persons and was waiting for the bus, suddenly the offending vehicle which was being driven by R1 at high speed, rashly and [CASE NUMBER] [ENTITY] v. [ENTITY] 7 of 26 negligently rammed against them and a number of persons, including her and Sh. [ENTITY] (PW4) were also injured.
It is pertinent to discuss here that she was not cross examined on any aspect by the driver cum owner i.e.R1 of the offending vehicle and the only reasonable conclusion that can be drawn in the given circumstances is that the driver cum owner/R1 of the offending vehicle has not disputed the version of petitioner (PW3) on any aspect whatsoever. Accordingly, as such there is no crossexamination of the petitioner regarding the manner in which the said accident took place and there is no crossexamination that the offending vehicle was driven in a rash and negligent manner and it rammed it against the public persons who were waiting at the bus stand, wherein the petitioner had also sustained injuries.
Though, she was crossexamined on behalf of the insurance company/R3, however, the same is only limited to the extent of amount spent by her on her medical treatment and regarding her income/loss of income. As such, there is no material on record that the petitioner has not narrated the true version of accident [CASE NUMBER] [ENTITY] v. [ENTITY] 8 of 26 before the court or if at all the said accident was not caused in the manner as narrated by him or that she did not sustain injuries in the accident.
11. It also needs to be noted here that Sh. [ENTITY], who is another injured is examined in [CASE NUMBER] as PW4 and he has also adduced his evidence by way of affidavit Ex.PW4/A and has proved certain documents regarding his medical treatment etc. He has also narrated the detailed account of accident and stated the manner in which it took place as is stated by the petitioner Ms. [ENTITY] (PW3) as already discussed earlier. It needs to be noted that she was also not cross examined by R1 on any point at all and accordingly, it is nowhere disputed that at the relevant date, time and place, R1 was driving the offending vehicle in a rash and negligent manner and he caused the said accident, wherein Sh. [ENTITY] had also received the injuries. In fact, no cross examination has been offered to him by or on behalf of R1 and he has not disputed his version on any count whatsoever. It is also noted that his crossexamination as conducted on behalf of [CASE NUMBER] [ENTITY] v. [ENTITY] 9 of 26 insurance company/R2 is limited to the extent of amount spent by the witness on his medical treatment and regarding his earnings. Accordingly, as such nothing is shown on record that the said accident was not caused by R1 while driving the offending vehicle in rash and negligent manner.
12. Further certified copy of charge sheet u/[SECTION] [ACT] which is Ex.PW1/3 is on record vide which R1 was prosecuted for having caused the said accident, wherein the petitioner [ENTITY] (PW3) and [ENTITY] (PW4) are also cited as eye witnesses, who have been examined in [CASE NUMBER] and is to be read in the case in hand . Further, the offending vehicle was seized from the site of accident, which is not disputed. It also needs to be noted that admittedly no complaint was made to any of the higher officials nor it is pleaded before the court that R1 did not cause the said accident.
13. It is settled law that a Claims Tribunal holds an inquiry to determine compensation which must appear to it to be just.
Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. In State of Mysore Vs. S.S. [CASE NUMBER] [ENTITY] v. [ENTITY] 10 of 26 Makapur, 1993 (2) SCR 943, Hon'ble Apex Court held that : " that tribunal exercising quasijudicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts"
14. In the case of [PRECEDENT], Hon'ble Supreme Court held that: [CASE NUMBER] [ENTITY] v. [ENTITY] 11 of 26 " In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
15. Further, in the case of [PRECEDENT], Hon'ble High Court of Delhi observed that : "The last contention of the appellant insurance company is that the respondents claimants 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 Supreme Court in [PRECEDENT]. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (1) certified copy of the criminal record of criminal case in FIR No. 955/2001, pertaining to [CASE NUMBER] [ENTITY] v. [ENTITY] 12 of 26 involvement of the 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 the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under [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."
16. In the case of [PRECEDENT], Hon'ble Supreme Court has reminded the Claim Tribunals stating as follows: " Road accidents are one of the top killers in our country, specially, when truck and bus driver operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to [CASE NUMBER] [ENTITY] v. [ENTITY] 13 of 26 draw an initial presumption in several cases bases on the doctrine of res ipsa loquitar. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here and some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes".
17. In case in hand, certified copy of the report under [SECTION] [ACT] clearly shows that R1 was prosecuted for having caused the said accident by the investigating officer for offences punishable under section [SECTION] FIR No. 533/08. It is also shown that the name of the petitioner Ms. [ENTITY] is mentioned as an eye witness in the said report and as per reocrd FIR was registered on statement of Sh. [ENTITY] (PW4) as already discussed. Further, the offending vehicle was also seized from the site of accident by the investigating officer. It is discussed that MLC of the petitioner shows that she was taken to the hospital with alleged history of road traffic accident [CASE NUMBER] [ENTITY] v. [ENTITY] 14 of 26 and sustained injuries as stated by her. As such, R1 has not explained why he was prosecuted for causing the said accident. Further no complaint is filed by R1 anywhere alleging his false implication in the case and he has not disputed anywhere that he had not caused the said accident.
18. In view of the judgments cited above and evidence on record as already discussed and on the basis of material as placed on record, the preponderance of probability is that the petitioner had received the said injuries due to rash and negligent driving of the offending vehicle by R1. Accordingly this issue is decided in favour of the petitioner and against the respondents.
19.Issue No.2 Qua Compensation "Whether petitioner is entitled for amount of compensation and if so, to what amount and from whom?"
20. The petitioner who is examined as PW3 as already discussed has interalia testified that she had sustained crush injuries as per [CASE NUMBER]. He remained admitted at RML hospital from 24.10.08 to 01.11.08.
It would be appropriate to discuss here that the petitioner [CASE NUMBER] [ENTITY] v. [ENTITY] 15 of 26 has stated that she was discharged from the hospital on 01.11.08. Petitioner in her affidavit stated that she has incurred only Rs. 4089/ on medical bills which is not disputed by ld counsel for insurance co. Accordingly, in the given facts and circumstances, an amount of Rs. 4089/ is awarded to her towards the medical expenses.
21. Pain, Suffering, Special diet and conveyance charges. As per record and also admittedly as per his own version, the petitioner admitted in the hospital on 24.10.08 to 01.11.08. Accordingly, in the given facts and circumstances and on the basis of material produced before the court, the petitioner must have suffered some pain, agony and shock due to the injuries sustained in the accident and accordingly, keeping in view the nature of his injuries, an amount of Rs. 15,000/ is granted to her towards her pain and suffering. Further, an amount of Rs. 5000/ is also granted to her towards special diet and Rs. 5000/ is granted towards conveyance charges on the basis of observations made in the case of [PRECEDENT] Hon'ble Delhi High [CASE NUMBER] [ENTITY] v. [ENTITY] 16 of 26 Court.
22. It is appropriate to discuss that petitioner has not shown anything on record that she was working a ladies tailor. Hence, since there is no record that she was working at all, hence, she is not entitled towards loss of income.
23. Accordingly, the over all compensation that is to be awarded to the petitioner comes to Rs.29,089/ which is tabulated below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 15,000/ 2 Special diet Rs. 5000/
3. Conveyance Charges Rs 5000/
4. Medical bills Rs. 4089/
5. Total Rs. 29,089/
24.It is also noted that Sh. [ENTITY], Assistant Manager (Legal), is examined by insurance co./R2 as R3W1 who has deposed that on instructions from R2, its counsel Sh. [ENTITY] had issued notice under [SECTION] [ACT] to R1 to produce his driving licence and permit to ply the vehicle in Delhi on the date of accident. Copy of notice was proved as Ex.R3W1/1 and [CASE NUMBER] [ENTITY] v. [ENTITY] 17 of 26 Ex.R3W1/2 and postal receipts vide which the same was sent to R1 were proved as Ex. R3W1/3 to Ex.R3W1/4. It is further deposed that notice was duly received by drivercumowner/R1, but he did not produce any document in compliance of the notice. It is deposed by said witness that District Transport Office Gurdaspur was requested to verify the genuineness of the driving licence bearing No. 65478/RDL account of [ENTITY] S/o [ENTITY] (R1) and the transport office Gurdaspur made an endorsement "return in original with remarks that [CASE NUMBER], dt. 13.04.2007 has not been issued by this office as per office record". The same was proved as Ex.R3W1/6.
25. Learned counsel for insurance contended that certificate issued by licencing authority is a public document and is admissible in evidence without examining any official from the said authority.
26. In the case of [PRECEDENT], decided on 27.10.2006, the insurance company in its written statement had raised a plea that the original driving licence was fake and it also appointed its investigator to verify the said fact. The investigator had written a letter to the District [CASE NUMBER] [ENTITY] v. [ENTITY] 18 of 26 Transport Officer, Kamrup (W/Z), Guwahati regarding genuineness of driving licence. The said authority after examining the driving licence gave an endorsement in the letter dated 4.8.2004, Ex. D1 that the original driving licence was not issued from the said authority and, therefore, the original driving licence was in fact a forged driving licence. Per contra, it was contended that the insurance company had failed to examine Transport Authority who had issued the original driving licence in the year 1984 and, therefore, the contention of the respondents could not be accepted. Hon'ble High Court also observed that it was not disputed that licencing authority had made an endorsement vide Ex.D1 to the effect that no such licence was issued nor it existed in the record of the Licencing Authority and therefore such certificate was admissible in evidence as a public document under [SECTION] of the [ACT].
27. In the case of [PRECEDENT], same issue arose whether the certificate issued by licensing authority to the effect that no driving [CASE NUMBER] [ENTITY] v. [ENTITY] 19 of 26 licence existed in the record of the licensing authority which is a public document and admissible in evidence without examining someone from the authority. It was not disputed that the licensing authority itself had issued a certificate to the effect that no such licence, as filed in the case by the driver of the vehicle, existed in the record of the Licensing Authority Alwar. It was held that the certificate is the record of the act done by the public officer, who has found, after examining itself its own record, that the licence did not exist and that such a certificate is admissible in evidence as a public document under [SECTION] of the [ACT].
28. This issue arose before Hon'ble Supreme Court in the case of [PRECEDENT], in which the insurance company sought to avoid its liability on the ground that the driving licence possessed by driver of the truck was fake. The official of the concerned licensing authority was summoned but no one turned up. Insurance company produced report of its own investigator that no driving licence had been issued in the name of the driver. [CASE NUMBER] [ENTITY] v. [ENTITY] 20 of 26 The Tribunal found that the insurance company failed to lead evidence in support of its assertion and held it to be liable to pay compensation. The appeal of insurance company was dismissed by Hon'ble High Court. The Hon'ble Apex Court on the basis of investigator's report assumed that the driving licence of the truck driver was fake and granted recovery rights to insurance company.
29. In the present case, there is no crossexamination of R3W1 disputing the fact that the licensing authority Gurdaspur did not make endorsement on Ex.R3W1/6 to the effect that no such driving licence was issued by the Licencing Authority Gurdaspur and there is no reason to disbelieve version of R3W1. Therefore said certificate is admissible in evidence as a public document under [SECTION] of the [ACT].
30. In the case of [PRECEDENT], it was held that although the initial onus is on the insurer to prove that there was breach of conditions of policy, but once it is proved, then the onus would shift on the insured (the owner of the vehicle) who [CASE NUMBER] [ENTITY] v. [ENTITY] 21 of 26 must then step into the witness box to prove his case. It is wasl also observed that: "Thus, where the insurance company alleges that the term of the policy of not entrusting the vehicle to a person other than one possessing a valid driving licence has been violated, initial onus is on the insurance company to prove that the licence concerned was a fake licence or was not a valid driving licence. This onus is capable of being easily discharged by summoning the record of the Licencing Authority and in relation thereto proving whether at all the licence was issued by the authority concerned with reference to the licence produced by the driver. Once this is established, the onus shifts on to the assured i.e. the owner of the vehicle who must then step into the witness box and prove the circumstances under which he acted;
circumstances being of proof that he acted bonafide and exercised due diligence and care. It would be enough for the owner to establish that he saw the driving licence of the driver when vehicle was entrusted to him and that the same appeared to be a genuine licence. It would be enough for the owner, to discharge the onus which has shifted on to his shoulders, [CASE NUMBER] [ENTITY] v. [ENTITY] 22 of 26 to establish that he tested the driving skill of the driver and satisfied himself that the driver was fit to drive the vehicle. Law does not require the owner to personally go and verify the genuineness of the licence produced by the driver.
Where the assured chooses to run away from the battle i.e. fails to defend the allegation of having breached the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at the trial would entitle the insurance company to a presumption against the owner.
That apart, what more can the insurance company do other than to serve a notice under [SECTION] of the [ACT] calling upon the owner as well as the driver to produce a valid driving licence. If during trial such a notice is served and proved to be served, non response by the owner and [CASE NUMBER] [ENTITY] v. [ENTITY] 23 of 26 the driver would fortify the case of the insurance company."
31. As per record, the Notice under [SECTION] [ACT] was duly served on R1 as in evident from the A.D on record, however, R1 is totally silent and hence, non response on his part lends support to the case of R2.
32. In the case of [PRECEDENT] the issue of satisfying third party liability in case of breach of the terms of insurance policy came up for consideration and it was held that an insurer is entitled to defend the action on the grounds as mentioned Under Section 149(2)(a)
(i)(ii) of the Act and that onus is on insurance to prove willful and conscious breach of the condition of the policy and further that even if breach on the part of the insured is proved, the insurer still has a statutory liability to pay compensation to the third party and recover the same from the insured.
33. In the case of [PRECEDENT], the Hon'ble Supreme Court has again held that the insurer is liable to pay the [CASE NUMBER] [ENTITY] v. [ENTITY] 24 of 26 compensation to third party and it can recover the same from the insured if there was any breach of policy condition as per law.
34. In the case of [PRECEDENT], the Apex Court has reiterated that even when conscious and willful breach as provided U/[SECTION] of the Act is proved, the insurance co. would still be liable to pay compensation to the third party and recover the same from the insured as per law.
35. In the case of [PRECEDENT], Hon'ble Supreme Court has again emphasized that liability of the insurer to pay compensation to third party is statutory.
36. In the case in hand, as per record, R1 has not responded to notice under [SECTION] [ACT] and has not produced any valid and effective driving licence and permit.
37. Relief
38. Reliance General Insurance co. Ltd. R2 is accordingly directed to deposit within 30 days from today the award amount of Rs. 29,089/ alongwith interest at the rate of 7.5 % per annum [CASE NUMBER] [ENTITY] v. [ENTITY] 25 of 26 from the date of filing of the petition till notice of deposit of award amount to be given by R2 to petitioner and her counsel and recover the same from R1.
39. Petition is accordingly disposed of. File be consigned to record room.
([ENTITY]) Announced in the open Court Judge MACT today i.e. 30.06. 2014 Rohini Courts, Delhi [CASE NUMBER] [ENTITY] v. [ENTITY] 26 of 26