IN THE COURT OF MS. [ENTITY] : PRESIDING OFFICER MACT : KARKARDOOMA COURTS (EAST) : DELHI. MAC No. : 35 OF 2012 Unique Case I.D. No. : 02402C0 033372012 Smt. [ENTITY] W/o. Sh. Ram Brikash Singh R/o. H. No. A - 2/C, Ist Floor, Gali No. 2, North Block West Vinod Nagar, Delhi - 110 092. PETITIONER VERSUS 1. [ENTITY] S/o Sh. Lallan Singh R/o H. No. A - 25, Gali No. 13, Mandawali, Delhi. DRIVER 2. [ENTITY], S/o. Mohd. Sintha Madar R/o E - 721, Gali No. 12, Shanti Nagar, West Vinod Nagar, Delhi. OWNER 3. The [ENTITY] Off. at : 23/4767, Pratap Street, Asaf Ali Road, Dariya Ganj, New Delhi. INSURER RESPONDENTS
Represented by : Ms. [ENTITY], Counsel for petitioner.
Respondent no. 1 is [ENTITY].
Mr. [ENTITY], Counsel for respondent no.2. Mr. [ENTITY], Counsel for respondent no.3.
[PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. Presented on : 08.12.2011 Reserved for Order on : 08.04.2015 Date of Award : 10.04.2015 A W A R D
1. The petitioner has filed the present Petition U/[SECTION] & [SECTION] of [ACT] claiming compensation of Rs.10,00,000/ for the injuries suffered by him in the road side accident on 06.11.2011.
2. The brief facts sans unnecessary details are that on 06.11.2011 at about 9.30 PM, petitioner was returning to her house from R.K. Hospital, Pandav Nagar, alongwith her grand daughter & was on foot. She was hit by a Motorcycle bearing no. DL7SBL2802, (hereinafter referred to as the Offending Vehicle), driven by respondent no.1, coming from Laxmi Nagar side, in a high speed and negligent manner. As a result, petitioner fell down and sustained Grievous Injuries. She was taken to R.K. Hospital, Pandav Nagar. A case u/[SECTION] [ACT] was registered vide FIR No. 488/11 at Police Station Mandawali against the respondent no.
3. The respondent no.1 is the driver; respondent no.2 is the owner; respondent no.3 is the Insurer of the offending vehicle, they all are jointly and severally liable to make the payment of compensation to [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. the all petitioners.
4. The respondents no.1 in his Written Statement submitted that the respondent no. 2 was his friend and they used to visit each others house; that on 06.11.2011, while leaving the house of respondent no. 2, he was told by respondent no. 2 to bring some household goods and was given the offending vehicle's keys; that the accident in question happened due to the negligence of petitioner as she came infront of the motorcycle without looking to either side of the road.
5. The respondent no. 2/ Owner in his Written Statement has denied the factum of accident; it is contended that the offending vehicle was falsely involved by the Police after it was lifted from his house in collusion with petitioner and the respondent no. 1.
6. The respondent no. 3 in its Written Statement has contended that the offending vehicle was duly insured vide a policy valid for a period from 11.01.2011 to 10.01.2012, issued in the name of Respondent no. 2; that the Respondent no. 1 was a minor and was not entitled to drive the vehicle.
7. On the basis of pleadings, following issues were framed by Ld. Predecessor, vide order dated 27.05.2011:
1.Whether petitioner has suffered injuries in road side [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. accident on 06.11.2011 involving vehicle i.e. Motorcycle make Pulsar bearing registration no. DL7SBL2802 being driven allegedly in a rash and negligent manner by R1?
2. To what amount of compensation, if any, the petitioner is entitled to and from whom?
3. Relief.
8. Petitioner has examined herself as PW1 and filed her affidavit as Ex. PW1/A. She testified the documents i.e., Original Medical Bills as Ex. PW1/1, Discharge Summary as Ex. PW1/2, Prescription Slip as Ex. PW1/3, Criminal Case Record as Ex. PW1/4, her Voter I car as Ex. PW1/5.
9. Respondent no. 2 has examined himself as R2W and filed his affidavit as Ex. R2W1/A and testified the documents i.e., his DL as Ex. R2W1/1 (OSR), Insurance Cover Note as Ex. R2W1/2, Receipt of Issuance of Duplicate RC by Transport Department as Ex. R2W1/3, NCR against lost of RC as Ex. R2W1/4 and photocopy of RC as Mark A.
10.Sh. [ENTITY], Asst. Manager from New India Assurance Co. Ltd. was examined as R3W1. He has testified the Insurance Policy as Ex. R3W1/A, Notices issued to Driver & Owner as EX. R3W1/B & R3W1/C its postal receipts as Ex. R3W1/D & R3W1/E, and AD Card as Ex. R3W1/F. [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No.
11.I have heard Ld. Counsel for parties, perused the entire material carefully in the light of relevant statutory provisions of law and my findings on the issues are as follows : ISSUE NO.1 : Whether petitioner has suffered injuries in road side accident on 06.11.2011 involving vehicle i.e. Motorcycle make Pulsar bearing registration no. DL7SBL2802 being driven allegedly in a rash and negligent manner by R1?
12.For succeeding in a claim petition filed under [SECTION] of the [ACT], it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
13.The petitioner examined herself as PW1 by way of an affidavit and testified that on 06.11.2011, while she was going on foot alongwith her grand daughter, she was hit by a Motorcycle bearing no. DL7SBL2802, driven by its driver, in a high speed and negligent manner. She testified that she sustained Grievous Injuries and was taken to R.K. Hospital. The respondent no. 2/ Owner of the offending examined himself as R2W1 and stated that the accident was not caused by the offending vehicle and that the vehicle was falsely planted in the case in collusion with the petitioner and the [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. driver. He testified that he was the Registered Owner of the offending vehicle and testified that the driver was not known to him. He testified that the offending vehicle was lifted from his house and its keys were under the possession of his mother and brother. In cross, however, he admits that an FIR was registered regarding the accident and he was aware of the same. The documents filed by IO with DAR coupled with the reply of [ENTITY], brother of the Owner to the Notice under [SECTION] [ACT] would suggest that the Owner was aware of the accident but chose not to file any complaint or lodge any protest against the alleged taking of motorcycle from house and against the alleged implication of vehicle. The Owner thus, has failed to discharge the burden and to bringforth any evidence of collusion of petitioner and the driver in alleged false involvement of the vehicle. Thus, in such circumstances, his contention that he did not know, who was driving the vehicle, is not worthy of credence.
14.The FIR was registered on the statement of the Petitioner. Police after investigation has filed charge sheet against respondent no.1 under [SECTION] [ACT] in case FIR No. 488/11 Police Station Mandawali which is primafacie suggestive of negligence of respondent no.1 in driving the vehicle at the time of accident. In [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. [ENTITY] and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Hon'ble Supreme Court held :
"8. In a petition under [SECTION] of the Act, the petitioners were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the [ACT]. Para 15 of the report is extracted hereunder :
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was 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 petitioners. The petitioners 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.The report in [ENTITY] (Supra) was relied on by the Hon'ble Supreme Court in its latest judgments in [PRECEDENT] and [PRECEDENT]."
16.In the case of [PRECEDENT], the Hon'ble High Court of Delhi has held :
" 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 the offending vehicle; (ii) criminal record showing completion [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. of investigation of police and issue of chargesheet under [SECTION], [ACT] against the driver;
(iii) certified copy of F.I.R., 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 the [ACT] are not akin to proceedings in a civil suit and hence strict rules of evidence are not requires 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 the part of the driver".
17.In a recent judgment of Hon'ble Delhi High Court in [PRECEDENT], it was held that in a case, where FIR is lodged and chargesheet is filed, then the documents mentioned above are sufficient to establish the fact that the driver of the offending vehicle was negligent in causing the accident particularly when there was no defence available from his side.
18.In case of [PRECEDENT], an adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there was nothing on record to show [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. that the petitioners had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case.
19.The issue thus stands decided in favour of petitioner holding that the accident happened as a result of negligent driving by respondent no.1, in which petitioner received injuries.
ISSUE NO.2 :
To what amount of compensation, if any, the petitioner is entitled to and from whom?
20.In the case of [PRECEDENT], [CASE NUMBER] decided on 18.10.2010, following principles were laid down by the Hon'ble Supreme Court for determining compensation payable to road traffic accident victims :
i) The compensation payable to the petitioner who is a victim of road accident should, to the extent possible, fully and adequately restore the petitioner to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equatable manner.
ii) Compensation payable in injury cases is payable under two heads. They are pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) (a) [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. Loss of earning (and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future medical expenses. Nonpecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities and/or loss of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).
iii) In routine personal injury cases compensation is awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the petitioner, that compensation is granted under any of the heads (ii) (b),
(iii) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life".
21.Soon after the accident, petitioner was taken to R.K. Hospital. She testified that she suffered fracture of bones of lower limb and ankle. The Discharge Summary Ex. PW1/2 shows that interlocking nailing was done in the lower left limb. Ex.PW1/2 shows that she remained admitted in the hospital from 06.11.2011 to 09.11.2011 in RLKL Orthopedic Hospital. She continued her OPD visits as the OPD Card suggests. Considering the nature of injuries, her age and the period of treatment undergone by her, she is awarded a compensation of Rs. 50,000/ under the head pain and sufferings. [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No.
22.Medical bills worth Rs.58,305/ are placed on record. The petitioner thus is awarded a compensation of Rs. 58,305/for Cost of Treatment.
23.Petitioner testified that she was working as Housemaid and earning Rs. 9,000/ p.m. However, there is no supporting document filed by her. With the kind of injuries suffered by her, it is felt that she would have remained unable to do household chores at least for a period of four months. In the absence of any income proof reliance has to be placed upon minimum wages payable to the unskilled workman on the date of accident which were Rs.6,656/ p.m. The petitioner is awarded compensation for four months i.e. Rs. 26,624.00 (i.e. Rs.6,656.00 x 4) for Loss of Wages.
24.Petitioner would have needed the help of an attendant at least for a period of four months. On a lumpsum basis, the petitioner is awarded a compensation of Rs. 20,000/ for four months as Attendant's Charges.
25.The petitioner is also awarded compensation of Rs.15,000/ towards Special Diet and Rs.15,000/ for Conveyance Charges. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the petitioner :
26.Keeping in view the facts and circumstances, I consider the [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. following amount to be the just compensation to the petitioner :
1 Towards Pain & Sufferings Rs.50,000.00 2 Towards loss of wages Rs.26,624.00 3 Towards servant/attendant for 4 months Rs.20,000.00 4 Towards conveyance and special diet Rs.30,000.00 5 Towards medical bills Rs.58,305.00 Total = Rs.1,84,929.00 Therefore, petitioner is entitled to Rs.1,84,929/ which shall be the just compensation to him.
LIABILITY
27.In National Insurance Co. Ltd. Vs. [ENTITY] & Ors., (2004) 3 SCC 297, it was observed as :
"The breach of policy conditions, e.g disqualification of driver of invalid driving license of the driver, as contained in [SECTION], has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties."
The aforesaid decision of Three Judge Bench was later relied upon by Hon'ble Apex Court in [PRECEDENT].
28.Respondent no.3 has examined Sh. [ENTITY], Asst. Manager [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. from New India Assurance Co. Ltd. He has testified the Insurance Policy as Ex. R3W1/A, Notices issued to Driver & Owner as EX. R3W1/B & R3W1/C to produce the valid and effective Driving License and its postal receipts as Ex. R3W1/D & R3W1/E, and AD Card as Ex. R3W1/F. R3W1 testified that the Company had given the Notice U/[SECTION] [ACT] to the owner and driver to produce the driving license. I find the said notice was sent by registered post and was correctly addressed. Therefore, there is presumption of service of notice.
29.In "[ENTITY]'s Case (Supra)", Hon'ble Apex Court clearly laid down that the liability of Insurance Company visavis the Owner would depend upon several factors. It was observed that the Owner would be liable for the payment of compensation in a case where the driver was not having a license at all. Relying upon the judgements of Hon'ble Apex Court in "[PRECEDENT]"; "[ENTITY] & Ors. (Supra)"; "[PRECEDENT]" and "[PRECEDENT]", that in view of the fact that the driver was chargesheeted for not possessing the Driving License, the breach of conditions of the Insurance Policy by the [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. Insured stand proved.
30.Moreover, from record/ DAR, it is established that the driver of the offending vehicle was minor and was not entitled to possess driving license. Therefore, as per settled position under law, since there was a valid Insurance Policy in respect of offending vehicle, the Insurance Company firstly has to pay the Award amount and is entitled to recovery rights against respondents no.1 and 2 as per law.
RELIEF
31.The petition stands allowed. The respondent No.3/Insurance company, in the first instance, is liable to pay the compensation of Rs.1,84,929/ but with liberty to recover the same from respondent no.1 and 2 as per law. The respondent No.3/insurance company is hereby directed to pay a compensation of Rs.1,84,929/, within one month alongwith interest @8% per annum on the total compensation amount from the date of petition till realization to the petitioner. The Award amount shall be deposited in the UCO Bank, Karkardooma Courts Complex, Delhi.
32.Out of the total award amount Rs. 44,929/ shall be released in favour of the petitioner.
33.The remaining amount shall be deposited in the form of one [ENTITY] [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. for a period of Five Years, with the release of periodical monthly interest in her favour.
34.The interest on the aforesaid Fixed Deposit shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioner.
35.Withdrawal from the said Account shall be permitted to petitioners after due verification and Bank shall issue Photo Identity Card to petitioners to facilitate Identity.
36.The original Fixed Deposit Receipt shall be retained by the Bank in safe custody. However, original Passbook shall be given to the petitioners with photocopy of [ENTITY]. On expiry of period of each [ENTITY], the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
37.No loan, advance, withdrawal shall be allowed on the said [ENTITY] without permission of this court.
38.Half yearly statement of account be filed by the Bank in this court.
39.On request of petitioners, Bank shall transfer the Savings Account to any other branch.
40.The award amount alongwith interest be deposited by respondent no. 3/Insurance Company, within 30 days in the court. In case, the Insurance Company fails to deposit this compensation with [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of [PRECEDENT], this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
File be consigned to Record Room.
Announced in the open court Dated : 10th April, 2015 (MS. [ENTITY].
[PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. [CASE NUMBER] 10.04.2015 Present : Ld. Counsels for parties.
Vide separate order announced in the open court today, the petition stand allowed. The respondent No.3/Insurance company, in the first instance, is liable to pay the compensation of Rs.1,84,929/ but with liberty to recover the same from respondent no.1 and 2 as per law. The respondent No.3/insurance company is hereby directed to pay a compensation of Rs.1,84,929/, within one month alongwith interest @8% per annum on the total compensation amount from the date of petition till realization to the petitioner. The Award amount shall be deposited in the UCO Bank, Karkardooma Courts Complex, Delhi.
Out of the total award amount Rs. 44,929/ shall be released in favour of the petitioner.
The remaining amount shall be deposited in the form of one [ENTITY] for a period of Five Years, with the release of periodical monthly interest in her favour.
The interest on the aforesaid Fixed Deposit shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioner.
Withdrawal from the said Account shall be permitted to petitioners after due verification and Bank shall issue Photo Identity Card to petitioners to facilitate Identity.
The original Fixed Deposit Receipt shall be retained by the Bank in safe custody. However, original Passbook shall be given to the petitioners with photocopy of [ENTITY]. On expiry of period of each [ENTITY], the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
No loan, advance, withdrawal shall be allowed on the said [ENTITY] without permission of this court.
[PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No. Half yearly statement of account be filed by the Bank in this court.
On request of petitioners, Bank shall transfer the Savings Account to any other branch.
The award amount alongwith interest be deposited by respondent no. 3/Insurance Company, within 30 days in the court. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of [PRECEDENT], this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs.10,000/.
List for reporting compliance on 26.05.2015.
(MS. [ENTITY]) P.O. MACT (EAST)/KKD./DELHI/10.04.2015 [PRECEDENT] [ENTITY] V/S. [ENTITY] & ORS. Page No.