IN THE COURT OF MS. [ENTITY] : JUDGE MOTOR ACCIDENTS CLAIMS TRIBUNAL : DELHI INJURY CASE : Petition No. : 119/09 Unique Case I.D. No. : 02401C0145532009 In re: 1. [ENTITY] S/o Sh[ENTITY] R/o A2, Jawahar Camp, Kirti Nagar, Delhi. Petitioner Versus 1. Sh. [ENTITY] S/o Sh. Sohan Lal R/o P3, 24, Sultanpuri, Delhi. 2. Sh. [ENTITY], S/o Sh. Anand Swarup R/o 122/10, BlockJ, New Seelampur, Delhi. 3. Sh. [ENTITY] S/o Sh. Balu Ram R/o 45, Nehru Kutia, Malka Ganj, Delhi. 4. The [ENTITY] Regd. Office at Oriental House, P.B. No. 7037, A25/27, Asaf Ali Road, New Delhi2. Respondents
Date of filing of the petition : 01.04.2009 Date of award : 12.04.2010 APPLICATION U/[SECTION] & [SECTION] OF MOTOR VEHICLES ACT 1988 FOR GRANT OF COMPENSATION APPEARANCE : Sh. [ENTITY] Counsel for petitioner R1, R2 and R3 are already exparte
Sh. [ENTITY] counsel for R4/ Insurance Company JUDGMENT/AWARD
1. The instant petition has been filed by the petitioner/complainant Sh. [ENTITY] S/o Sh[ENTITY], u/[SECTION] & [SECTION] of the [ACT], as amended till date (hereinafter called the Act), for grant of compensation on account of the injuries sustained by him in a motor accident.
2. The brief facts as stated in the petition are that on 05.06.2006 at about 6.35 p.m the petitioner [ENTITY] was going alongwith his wife and two minor daughters in a TSR bearing no. DL1R G9260, being driven by R1 at a high speed and in a rash and negligent manner, to Old Delhi Railway Station and when the TSR reached at Pul Mithai, it hit a [ENTITY] bearing no. DL1Q0264, and due to the collision the petitioner and his family members, who were sitting in the TSR, sustained injuries. The petitioner and his family members were removed to Aruna Asaf Ali Hospital, where his MLC was prepared and he was given the requisite medical aid. A case bearing FIR No. 246/06 u/[SECTION] [ACT] was registered at P.S. Lahori Gate against R1.
3. It was stated that the petitioner was 35 years of age at the time of accident, working as a Labour, earning Rs. 5000/ p.m. It was stated that due the injuries sustained by him in the accident, he sustained several pecuniary and non pecuniary losses. Hence, the present claim petition, against respondent no.1[ENTITY], the driver of the offending vehicle, respondent no.2 Sh. [ENTITY], the insured of the offending vehicle, respondent no.3 Sh. [ENTITY], the owner of the offending vehicle and respondent no.4 The [ENTITY], the insurer of the offending vehicle.
4. Notices of the petition were duly issued to R1 & R3, who entered an appearance in the Court on 15.05.2009 but despite sufficient opportunities granted, they did not file their written statement. Thereafter, they stopped coming to the Court and were therefore, proceeded exparte vide order dated 08.09.2009.
5. Notice of the petition was also served upon R2, but the same was received back with the report that he had left the given address. Since this was the only address of R2 available with the petitioner, fresh notice was ordered to be issued to R2 with directions of affix the summons, outside at the given address. He was also ordered to be served by way of publication in the Newspaper "Veer Arjun". R2 was so served by way of publication in the Newspaper "Veer Arjun" and by way of affixation for 08.09.2009, but did not enter an appearance and was therefore, proceeded exparte vide order dated 08.09.2009.
6. Written statement was filed on behalf of R4/ Insurance Company wherein it was stated that petitioner did not have any cause of action to file the present petition against respondent no.4. However, it was admitted that the offending TSR bearing no. DL1R G9260 was duly insured with respondent no.4 in the name of R2 vide insurance policy bearing no. 271700/2006/5903 which was valid from 12.07.2005 to 11.07.2006. It was further stated that there was contributory negligence on the part of the [ENTITY] also with which the collision took place. It was further stated that the insurance company would not be liable if it was found that any of the terms and conditions of the insurance policy had been violated.
7. On the basis of the pleadings of the parties, on 08.09.2009 the following issues were framed :
i) Whether the petitioner sustained injuries in an accident on 05.06.2006 at about 06.35 a.m due to rash and negligent driving of TSR bearing registration no. DL1R G9260 by respondent no.1?
ii) Whether the petitioner is entitled to compensation, if so, for what amount and from whom?
iii) Relief.
8. An application u/[SECTION] of the [ACT] moved on behalf of the respondent no.4 for taking the defences available to respondent no.1 to 3 was allowed vide order dated 13.01.2010.
9. Since the instant case bearing [CASE NUMBER] and the cases bearing [CASE NUMBER], 276/09 and 277/09, all arose out of the same accident/cause of action, all the said cases were consolidated for the purpose of evidence vide order dated 15.05.2009 and case bearing [CASE NUMBER] was treated as the main case, in which the entire evidence was recorded, which was to be read in the remaining three suits also.
10. Petitioner [ENTITY] entered the witness box as PW1 and deposed on two affidavits, which he proved as Exh. PW1/A and Exh. PW1/A1. The second affidavit was in respect of his two minor daughters namely [ENTITY] (petitioner in [CASE NUMBER]) and [ENTITY] (petitioner in [CASE NUMBER]), being their father and natural guardian. He testified on oath the averments made by him in the petition deposing that he sustained multiple grievous injuries due to the rash and negligent driving of the offending TSR by respondent no.1. He brought on record his MLC as MarkA, copy of MLC of minor petitioner [ENTITY] as MarkB, copy of MLC of minor petitioner [ENTITY] as MarkC and the copy of the complete criminal case as MarkD. In his crossexamination, he stated that he had brought his ration card in original and that he alongwith his brother [ENTITY], his wife and two daughters, were sitting as passenger in the said TSR. He also stated that the TSR driver was going towards Old Delhi Railway Station on the wrong side and denied that the accident occurred due to the rash and negligent driving of the [ENTITY], with which the collision had taken place. He stated that the entire record of the treatment, taken by him and his family had been filed on record and that he had got reimbursement of Rs. 66,000/ from his employer under the medical reimbursement facility. He also stated that he was working as a Labaour and was employed with F.C.I, Mayapuri, Delhi and was getting Rs. 7000/ p.m as salary, but had not filed any proof of his income or employment.
11. PW2 [ENTITY] wife of petitioner [ENTITY] and petitioner in [CASE NUMBER], entered the witness box and corroborated the testimony of PW1 on all material particulars. She also categorically deposed that the collision took place since the TSR in which they were traveling, was being driven at a high speed and in a rash and negligent manner by R1 and that due to his negligence, the accident was caused. She brought on record her MLC as MarkX. In her crossexamination, she denied that the accident occurred due to the negligent driving of the [ENTITY], with which the collision took place. She admitted that she was not gainfully employed and was not earning anything. She admitted that her daughter [ENTITY], (petitioner in [CASE NUMBER]), was taken away from St. Stephens Hospital, without permission of the doctors of the hospital and was admitted in Jessa Ram Hospital, Karol Bagh. However, she denied that the entire medical expenses, which were incurred upon the treatment of her husband, herself and minor daughters, were reimbursed by the employer.
12. After close of PE, R4 examined Sh. [ENTITY], Dy. Manager, from the Insurance Company as R4W1. He produced the certified copy of the Insurance Policy bearing no. 2006/5903 issued to Sh. [ENTITY] in respect of the TSR bearing no. DL1R G9260, which was valid from 12.07.2005 to 11.07.2006, which contained the permit conditions at point A and proved the Insurance Policy as Exh. R4W1/1. The certified copy of the charge sheet, comprising of the six pages, including the arrest memo of R1 is Exh. R4W1/2. He also produced the certified copy of the notice u/[SECTION] [ACT], the certified copy of the RC, certified copy of the Superdaginama, comprising of a total of 5 pages, collectively as Exh. R4W1/3. He also produced the RTO report and the RC verification and permit verification of the offending TSR in original as Exh. R4W1/4 and Exh. R4W1/5 respectively. He further deposed that the Insurance Company had issued a notice u/[SECTION] [ACT], through counsel to the insured/registered owner Sh. [ENTITY] for producing the Insurance Policy and the RC of the offending vehicle and the office copy of the notice alongwith the postal receipts is Exh. R4W1/6 and Exh. R4W1/7 respectively.
13. I have heard Sh. [ENTITY] counsel for petitioner and Sh. [ENTITY] counsel for R4. I have also perused the record, scrutinized the evidence adduced and have gone through the relevant case law and my issuewise findings are as follows: ISSUE No.1: " Whether the petitioner sustained injuries in an accident on 05.06.2006 at about 06.35 a.m due to rash and negligent driving of TSR bearing registration no. DL1R G9260 by respondent no.1?"
14. It was a categorical deposition of PW1 and PW2, that they sustained multiple grievous injuries due to the rash and negligent driving of the offending TSR by respondent no.1. It remained a bald assertion on behalf of R1 that he was not driving the vehicle rashly or negligently, since he was unable to produce any substantive evidence in support of his assertion nor did he produce any witness to corroborate his version, but preferred to be proceeded exparte.
15. A criminal case was also registered vide FIR No. 06/09 u/[SECTION] [ACT] at PS Maurice Nagar, against the respondent no.1, regarding the said accident, which supports the claim of the petitioner that the offending vehicle was being driven in a rash and negligent manner by the respondent no.1 and injuries were received by the petitioner.
16. Perusal of the criminal record shows that the police investigation has concluded that the accident had taken place due to the rash and negligent driving by the driver of the offending vehicle.
17. MLC and the medical treatment record of the petitioner reveals that she sustained injuries in the accident in question.
18. It is therefore, prima facie established that the accident had taken place with the offending vehicle, which was being driven by respondent no.1 in a rash and negligent manner, causing injuries to the petitioner. Issue No.1 is accordingly decided in favour of the petitioner.
ISSUE No.2: "Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?"
19. In view of the findings given on issue no.1 to the effect that the petitioner had sustained injuries in the accident due to the negligence of respondent no.1, the petitioner is entitled to receive compensation under the [ACT], under the following heads: Medicines and Medical Treatment :
20. The MLC of the petitioner [ENTITY] bearing no. 1878/06 prepared at Aruna Asaf Ali Hospital, reveals that he was brought to the hospital on 05.06.2006 at 7.15 a.m by the police personnels of P.S Lahori Gate with a history of road traffic accident. He had sustained abrasions over the right shin and abrasions over the left knee as well as swelling and bruises over the left calf. After being given the emergent medical aid, he was referred for Xrays and further intensive treatment in the Orthopedic department. Subsequently, the nature of injuries were opined to be simple. No original bills of expenses, incurred by the petitioner on his medical treatment, have been brought on record and admittedly the entire expenses incurred by him on medical treatment have been reimbursed by his employer. Accordingly, no compensation is awarded to the petitioner under this head. Pain and sufferings:
21. The petitioner sustained abrasions over the right shin and abrasions over the left knee as well as swelling and bruises over the left calf due to which he must have remained in immense pain and agony and physical discomfort. I therefore, grant a total compensation of Rs. 2,000/ to the petitioner towards pain suffered by him.
Loss of Income :
22. The petitioner was admittedly working privately but was unable to bring on record any document to establish either his employment or income. However, the petitioner sustained simple injuries only and at the most, would have remained away from work for two or three days. Placing the petitioner in the bracket of an unskilled workman, as per the Minimum Wage Index, his income on the date of accident is assessed to be Rs. 3271/ p.m, I, therefore, grant a total compensation of Rs. 3271/ X 3 /30= Rs.327 /, rounded off to Rs. 400/, to the petitioner as loss of income.
onveyance and Special Diet C :
23. The petitioner sustained simple injuries only in the accident and was not advised any follow up treatment in the OPD and therefore, at the most, the only amount that would have been incurred by him would be for going back to home. I, accordingly grant a total compensation of Rs. 200/ to the petitioner towards coneyance charges.
However, no special diet has been prescribed to the petitioner, I grant a compensation of Rs. 200/ to the petitioner towards special diet.
24. In view of my above discussion, the petitioner is awarded the following compensation :
1. Medical Expenses & Treatment : Rs. Nil
2. Pain & Sufferings : Rs. 02,000/
3. Loss of Income : Rs. 00,400/
4. Conveyance : Rs. 00,200/
5. Special Diet : Rs. 00,200/ Total Rs. 02,800/ Rounded off to Rs. 03,000/
25. Hence, the petitioner is awarded a total compensation of Rs. 3000/. He shall also be entitled to interest on the award @ 7.5 % from the date of institution of the petition i.e 01.04.2009 till the date of despatch of the notice to the claimant and his counsel, intimating the deposit of award amount. LIABILITY:
26. It was the contention on behalf of R4 that it would not be liable as there was a breach of the terms and conditions of the Insurance Policy by the insured i.e R2 [ENTITY]. I have thoughtfully considered the contentions raised on behalf of R4 and have scrutinized the evidence adduced.
27. The Insurance Policy Exh. R4W1/1 is in the name of the insured R2 [ENTITY], which specifies that the terms and conditions in respect of the TSR, to be adhered to by the insured. The arrest memo clearly shows that the TSR was being driven by R1 [ENTITY] while the registered owner of the vehicle was R2 [ENTITY], while as per the notice u/[SECTION] [ACT], which was issued to R3 [ENTITY] clearly finds the endorsement of [ENTITY] that he was the owner of the offending TSR, which on the date of accident was being driven by R1. The vehicle was also got released on Superdari by R3 from the Court of concerned MM.
28. R4 has brought on record a notice u/[SECTION] [ACT] which was issued to the registered owner [ENTITY] for producing a copy of the Insurance Policy and the registration certificate as well as the permit to drive the offending TSR bearing no. DL1R G9260. The postal receipts Exh. PW1/7 established the despatch of the said notice to R2 [ENTITY] by registered AD which has further been received back unserved with the report that he has left the given address. It is to be noted that the notice was never served upon the registered owner and therefore, the permit of the vehicle has not been furnished to the Insurance Company. However, the Insurance Company, in their Zeal has verified, from the transport authority, regarding the genuineness of the RC of the offending TSR as well as the permit.
29. Exh. R4W1/4 is the verification report regarding the offending TSR which, as per the records of the Transport Authority, has been registered in the name of R2 [ENTITY]. The permit in respect of the said vehicle, as per the report of the Transport Authority Exh. R4W1/5, was valid from 08.01.2010 till 26.07.2013, therefore, being valid for a period after the date of the accident. On the said Exh. R4W1/5, the report which has been given by the Transport Authority has been typed while there is an endorsement in hand, mentioning the issue date and the validity w.e.f 08.01.2003 to 07.01.2008 but without any signatures or authentication of the dates by the officer incharge of the Transport Authority. Therefore, from the verification report, which has been brought on record, it is obvious that on the date of accident, the TSR was being plied on the road by the registered owner or by the actual owner [ENTITY]. It is therefore, quite apparent that there was a violation of the terms and conditions of the Insurance Policy by R2 [ENTITY].
30. In National Insurance Company Ltd. vs. Challa Bharathamma & Ors., III (2004) ACC 292 (SC), the Hon'ble Apex Court held that plying of vehicle without permit is infraction and in terms of [SECTION] of [ACT], defences available to insurer on that respect. Insurer would not be liable but keeping the beneficial object of the Act in mind, it was directed that the insurer would pay but would be granted recovery rights to recover from the insured.
31. Furthermore, it be mentioned that as per the record maintained in the Transport Authority, R2 [ENTITY] is the registered owner of the TSR and as per the Insurance Policy, certified copy of which has been brought on record as Exh R4W1/1, it was R2 [ENTITY], who was the insured. However, the certified copy of the notice u/[SECTION] [ACT], the certified copy of the [ENTITY] executed by R3 [ENTITY], the said R3 [ENTITY] has admitted that on the date of accident, he was the owner of the offending TSR, which was being driven by R1 [ENTITY].
32. [SECTION] of the [ACT], inter alia embodies the duty of the owner of vehicle on transfer of ownership of motor vehicle specifying that in such a case, the such owner of motor vehicle is to report the fact of transfer of motor vehicle to the registering authority of same State within 14 days of transfer in the prescribed form.
33. In the case of [PRECEDENT], Hon'ble Supreme Court held that the registered owner as well as the person in whose actual possession the motor vehicle was on the date of accident, is liable for claim before Tribunal, when the registered owner has not done the requisite compliance by giving requisite information in prescribed form to registering authority.
34. Accordingly, it is held that R1 [ENTITY] being the driver of the offending TSR is a tortfeasor, R2 [ENTITY] being the registered owner while R3 [ENTITY] being the possessor as well as subsequent purchaser of the offending TSR are joint tortfeasors and hence, R1, R2 and R3 are jointly as well as severally liable to pay the compensation amount to the petitioner. R4 [ENTITY] being the insurer of the offending TSR shall pay the compensation amount to the petitioner, but is granted recovery rights to recover the same from R1, R2 and R3 jointly and severally.
ISSUE NO. 3 (RELIEF):
35. In view of my findings on issue no.1 and 2 above, the petitioner is awarded a total compensation of Rs. 3000/. Petitioner is also entitled to interest on the award @ 7.5 % from the date of institution of the petition i.e 01.04.2009 till the date of despatch of the notice to the claimant and his counsel, intimating the deposit of award amount .
36. Respondent no.4/ [ENTITY] is directed to deposit the amount of compensation, awarded to the petitioner, by way of a crossed cheque, in the name of the petitioner, with the Tribunal, within 30 days from today.
37. No order as to costs. A copy of the award be supplied to the parties, free of cost. File be consigned to record room.
38. A compliance report shall be filed by R4 about the deposit of the award amount, as per directions alongwith a copy of the notice to the claimant and the counsel for claimant, intimating about the deposit of the cheque by 28.05.2010.
39. [ENTITY] is directed to prepare a separate miscellaneous file containing a copy of the petition, memo of parties, copy of award and last proceeding sheet and put up the same alongwith the compliance report aforementioned on 28.05.2010.
Announced in open Court ([ENTITY]) today i.e. on 12.04.2010 Judge/MACT:Delhi [ENTITY] Vs. [ENTITY] 12.04.2010 Present: Sh.[ENTITY] counsel for petitioner R1, R2 and R3 are already expate Sh. [ENTITY] counsel for R4
Vide my separate judgment announced in open court, the Award is passed. Petition stands satisfied.
No order as to costs. A copy of the award be supplied to the parties, free of cost. File be consigned to record room.
A compliance report shall be filed by R4 about the deposit of the award amount, as per directions alongwith a copy of the notice to the claimant and the counsel for claimant, intimating about the deposit of the cheque by 28.05.2010.
[ENTITY] is directed to prepare a separate miscellaneous file containing a copy of the petition, memo of parties, copy of award and last proceeding sheet and put up the same alongwith the compliance report aforementioned on 28.05.2010.
([ENTITY]) Judge: MACT: Delhi