IN THE COURT OF SHRI [ENTITY] PRESIDING OFFICER: MOTOR ACCIDENTS CLAIMS TRIBUNALII, DWARKA COURTS: NEW DELHI MACT No. 23/12/11 & 22/12/11 (i) MACT No. 23/12/11 IN THE MATTER OF : Shri [ENTITY] S/o Shri Virender Sehrawat R/o H.No. 24, Village Kair, Najafgarh, New Delhi. Petitioner Versus 1. Shri [ENTITY] (Driver) S/o Shri Mohinder Singh, R/o Village Sijjoi, PS Andhra Thadhi, Distt. Madhubani, Bihar. 2. M/s. [ENTITY], (Owner) Office at C1/40, Ahok Vihar, PhaseII, Delhi (through its Prop.). 3. United India Insurance Co. Ltd. (Insured) DO27, Lusa Tower A2/3, Nani Wala Bagh, Azad Pur, Ring Road, New Delhi - 110 033. Respondents Filed on : 21.04.2011 Reserved on : 25.07.2012 Decided on : 27.07.2012 (ii) [CASE NUMBER] MACT No. 23/12/11 & 22/12/11 Page No. 1 of 19 IN THE MATTER OF : Shri [ENTITY] S/o Shri Balwan Singh R/o Vill Kair, Najafgarh, New Delhi. Petitioner Versus 1. Shri [ENTITY] (Driver) S/o Shri Mohinder Singh, R/o Village Sijjoi, PS Andhra Thadhi, Distt. Madhubani, Bihar. 2. M/s. [ENTITY], (Owner) Office at C1/40, Ashok Vihar, PhaseII, Delhi (through its Prop.). 3. United India Insurance Co. Ltd. (Insured) DO27, Lusa Tower A2/3, Nani Wala Bagh, Azad Pur, Ring Road, New Delhi - 110 033. Respondents Filed on : 16.05.2011 Reserved on : 25.07.2012 Decided on : 27.07.2012 J U D G M E N T:
1. These are two claim petitions which are filed under [SECTION] and [SECTION] of the [ACT] for grant of compensation.
2. In both the claim petitions, Respondent No. 1 is the driver of the offending vehicle, Respondent No. 2 is its owner and Respondent No. 3 is the insurer.
3. It is stated in the claim petition that on 04.11.10 at about 12.10 a.m. the petitioner was coming on a motorcycle bearing no. DL4SAY9377 alongwith his friend namely [ENTITY] after completion of his duties. When they reached at Chowk in front of [SECTION] Metro Station, at that time one truck bearing no. HR55A5361 came from right side and hit the petitioner's vehicle with a great force. As a result of this impact, the petitioner alongwith his friend fell down on the road and sustained multiple injuries due to rash and negligent driving of respondent no. 1.
4. It is stated that petitioner was removed to DDU Hospital for treatment and was also treated at Gandhi Nursing Home where he spent Rs. 5 lacs and the treatment is still continuing.
5. It is stated that petitioner was serving in DTC and he has suffered financial loss being loss of income due to this accident.
6. In these circumstances, petitioner has claimed a compensation of Rs. 30 lacs from the respondents.
7. In [CASE NUMBER] where Sh. [ENTITY] is the claimant, he has also stated similar facts as are already stated by other petitioner Sh. [ENTITY].
8. He has further stated that he was also treated at DDU Hospital where he spent Rs. 20,000/ on medicines etc.
9. This petitioner has also stated that he has suffered financial loss in the nature of loss of income as he was also employed in DTC.
10. This petitioner has claimed a compensation of Rs. 5 lacs.
11. Respondent no. 1 was proceeded [ENTITY].
12. Respondent no. 2 stated in his written statement that no such accident as alleged in the claim petition has ever taken place due to rash and negligent driving of respondent no. 1.
13. It is further stated that as alleged offending vehicle was duly insured with respondent no. 3, the liability, if any, is of respondent no. 3 to pay the compensation.
14. It is also stated that respondent no. 1 was driving the vehicle carefully and obeying all the traffic rules and regulations.
15. Rest of the contents of the claim petition were denied.
16. Insurance company filed its written statement and stated that insurer must prove that the driver of the vehicle in question was having valid and affective driving license, permit and fitness on the date of accident.
17. It is also stated that the driver, owner and insurer of motorcycle bearing no. DL4SAY9377 on which claimants were traveling are not made parties. Therefore, petition is not maintainable.
18. Factum of insurance was admitted as policy no.
2227003110P000867315 was issued in the name of M/s. [ENTITY], respondent no. 2 for a period from 29.08.10 to 28.08.11 in respect of vehicle no. HR55A5361.
19. Rest of the averments made in the claim petition were denied.
20. Written statement of respondent no. 2 and 3 is common in both the claim petitions.
21. Considering the fact that both these claim petitions had arisen out of same accident, both these petitions were consolidated for the purposes of adjudication and disposal.
22. The case titled as [ENTITY] v. [ENTITY] & Ors. was treated as leading case and it was directed that evidence recorded in the said case shall be read in evidence for the connected petition as well. Therefore, following consolidated issues were framed:
1) Whether [ENTITY] and [ENTITY] had sustained multiple injuries on their person in an accident which took place on 04.11.2010 caused due to negligent driving of vehicle ie. truck bearing registration number HR55/A5361, being driven in a negligent manner by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3? O.P.P.
2) In case, issue no.1 is decided in affirmative, then to what amount of compensation, are the petitioners entitled and from whom? O.P.P.
3) Relief.
23. Sh. [ENTITY] entered in the witness box as PW1. Various documents such as certified copy of charge sheet, FIR, Site plan, certificate of registration, seizure memo of RC, driving license, seizure memo of driving license, notice under [SECTION] of [ACT], Mechanical Inspection Report of offending vehicle, seizure memo of offending vehicle, insurance policy, permit, fitness certificate, arrest memo, MLC, photocopies of bills, pay slip, ration card, driving license of petitioner and his Election ICard were proved as Ex. PW1/1 to Ex. PW1/16.
24. PW1 was cross examined by counsel for respondent no. 2 where he denied a suggestion that the accident had taken place due to his own fault.
25. In cross examination conducted by counsel for insurance company, PW1 stated that he has not placed on record any leave record from his department. He stated that he did not join his duties for about six months after the accident and his services were also terminated as he was on contract basis.
26. PW1 stated that he has not placed on record any document with regard to his employment with DTC on contract basis prior to accident except the salary slip. He stated that he was given a termination letter but the same was not placed on record. He denied a suggestion that his services were not terminated due to this accident. He stated that all the medical bills have been placed on record and also stated that he had engaged a relation as an attendant and did not take receipts while making the payment to his relation who had rendered services as an attendant.
27. Sh. [ENTITY] entered in the witness box as PW2 and various documents including salary slip were exhibited as Ex. PW2/1 to Ex. PW2/14.
28. In cross examination conducted by counsel for owner of the vehicle he denied a suggestion that accident had taken place due to his own fault.
29. In cross examination by counsel for insurance company he stated that he has not placed medical bills worth Rs. 20,000/ on record.
30. He stated that he has not placed on record any leave availed by him as he was employed on contract basis and leave is not admissible for contractual employees. He admitted that he was getting his salary in his bank account but admittedly did not file copy of bank statement to show that he had not received salary after the accident. Suggestions contrary to his case were denied by PW2.
31. Respondent no. 2/owner entered in the witness box as R2W1 and stated in his evidence by way of affidavit that he is partner of firm M/s. [ENTITY] who is owner of vehicle bearing registration no. HR55A5361. He stated that respondent no. 1 had contacted him in the month of October, 2010 to work as driver and had shown his driving license to him which looked as genuine one.
32. R2W1 further stated that respondent no. 1 was called upon to show his driving skill and the test was taken by old driver of respondent no. 2 namely Sh. [ENTITY]. In the test of driving, respondent no. 1 had shown his good experience as a professional driver.
33. Therefore, he deposed that he is not liable to pay any compensation to the insurance company.
34. In cross examination, R2W1 stated that respondent no.
1 had contacted him for employment in the month of October, 2010 and the driving license was valid from the month of September, 2010 for a period of three years. He stated that the driving license shown to him had not expired on the date of employment of respondent no. 1. When R2W1 was shown driving license available on record of respondent no. 1, R2W1 stated that he does not remember if he had seen the same driving license but the driving license shown to him was issued from Licensing Authority, Agra. He denied a suggestion that driving license had already expired when respondent no. 1 was engaged as a driver. He stated that he has five vehicles and there are five drivers engaged for five cars. He stated that he does not get the driving licenses verified from Transport Authority while engaging a driver and similarly driving license of respondent no. 1 was also not got verified from the Licensing Authority. He denied a suggestion that it was his responsibility to get the driving license of his driver verified from Licensing Authority.
35. On behalf of insurance company three witnesses were examined. First witness R3W1 was Dy. Manager of the insurance company who exhibited copy of insurance policy as Ex. R3W1/A1 A2A3. Notices under [SECTION] of [ACT] dated 12.06.11 addressed to owner and driver were proved as Ex. R3W1/B and the postal receipts were proved as Ex. R3W1/C and D, A/D card showing service of notice upon respondent no. 2 was exhibited as Ex. R3W1/E.
36. Second witness examined by insurance company was Investigating Officer in this case who stated that as per report received from Licensing Authority the driving license was fake. He stated that he has placed the said report before the Court of Ld. Magistrate.
37. Third witness examined by respondent no. 3 was an official from Licensing Authority, Agra who stated that letter dated 21.04.12 issued by Tax Officer is Ex. R3W3/1. He denied a suggestion that the records of said authority were misplaced but he stated that some records were seized for departmental inquiry by Transport Department. In Ex. R3W3/1, which is addressed to this Tribunal, it is stated that according to Cash Section no fees is deposited vide DL No. 608 in the name of Sh. [ENTITY], S/o Sh. [ENTITY]. Therefore, the alleged license is fake and is not issued by Licensing Authority, Agra.
38. Arguments were addressed by Sh. [ENTITY], learned Counsel for petitioners, no arguments were addressed on behalf of respondent no. 1 and 2 and arguments were addressed by Sh. [ENTITY], learned Counsel for insurance company.
39. Counsel for petitioner argued that original bills were given to the Investigating Officer but he has not placed those bills on record for the reasons best known to the Investigating Officer.
40. On behalf of insurance company two fold arguments were submitted. First argument was that the driving license was fake. The second argument was that even the fake driving license had lapsed in September, 2010 whereas accident had taken place in the month of November, 2010. Therefore, he has prayed for exoneration or atleast recovery rights.
41. On the basis of pleadings of the parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO.1:
42. Burden of proof that the offending vehicle was being driven rashly and negligently is always on the petitioner.
43. It is rather sine qua non.
44. To succeed in a claim petition filed under [SECTION] of [ACT] claimants have to show that the offending vehicle was being driven rashly and negligently.
45. PW1 as well as PW2 are both eye witnesses to the accident. Both have stated in their claim petitions as well as evidence by way of affidavits that the offending vehicle came from wrong side and hit their motorcycle with a powerful impact due to which both of them fell down on the road. Both the witnesses have stated that the offending vehicle was being driven rashly and negligently.
46. The best person to deny these allegations was respondent no. 1 who neither filed any written statement nor cross examined PW1 and PW2 nor entered in the witness box to prove his innocence.
47. Police has registered FIR against respondent no. 1 under [SECTION], [SECTION] and [SECTION] of [ACT] and after investigation in the matter has filed charge sheet under Sections mentioned above including under [SECTION], [SECTION] and [SECTION] of [ACT].
48. It is a settled law that test of negligence in a claim petition filed under [ACT] is of preponderance of probabilities and not beyond all reasonable doubts as is in a criminal case.
49. Therefore, this issue is decided in favour of petitioners and against the respondents.
ISSUE NO. 2:
50. First, compensation payable to Sh. [ENTITY] is being taken up for consideration.
51. Injuries suffered by Sh. [ENTITY] are grievous.
However, treatment record of petitioner no. 1 is not available on record.
52. Considering the fact that in the MLC injury is mentioned as fracture of acetabulum and dislocation of head of femur, for Pain and Suffering petitioner no. 1 is given a compensation of Rs. 25,000/.
53. There are no medical bills for purchase of medicines.
Explanation is that bills were given to the Investigating Officer who has not placed the same on record.
54. Neither Investigating Officer was examined nor record from criminal court was summoned to find out expenses incurred in the treatment. Therefore, no compensation can be given towards cost of medicines and cost of treatment.
55. For Special Diet and Conveyance, this petitioner is given a compensation of Rs. 10,000/ on both heads i.e. Rs. 20,000/.
56. Considering the nature of injuries it can be safely presumed that petitioner would have been confined to the bed for three months.
57. As per salary slip of this petitioner, his salary on the date of accident was Rs. 9,144/ per month. Petitioners were on contractual employment with DTC and were not entitled for any leave. Therefore, a compensation of Rs. 27,000/ is given for Loss of Wages.
58. Petitioner has not examined any witness from DTC to prove that petitioner lost his services due to this accident. Therefore, no relief can be given to the petitioner for loss of service.
59. Petitioner is also entitled compensation for wages given to an attendant at least for a period of one month. Minimum wages of an unskilled workman as on 01.02.10 were Rs. 5,278/ per month. Petitioner is given a compensation of Rs. 5,278/ towards Services of an Attendant.
60. Resultantly, total compensation payable to this petitioner would be Rs. 77,278/. Petitioner is also entitled to interest @ 9% per annum from the date of filing of claim petition which is 21.04.2011 till its deposit.
61. For granting interest @ 9% per annum reliance can be placed on the judgment of Hon'ble High Court of Delhi in [PRECEDENT] dated 19.03.2012 where in para 72 and 73 the Hon'ble High Court has held as under: "72. In [PRECEDENT], the interest granted by the National Commission @ 9% was upheld by the Supreme Court. In [PRECEDENT], interest @ 9% per annum was awarded by the Hon'ble Supreme Court. In [PRECEDENT], the interest @ 9% p.a. awarded by the Claims Tribunal was approved. In [PRECEDENT], interest @ 9% p.a. was awarded on the enhanced amount of compensation.
73. In these circumstances, I would also follow the Bank rate of interest and would award interest @ 9% p.a. on the enhanced amount."
62. In the case of [PRECEDENT]. :
[CASE NUMBER] dated 11.05.2012 the Hon'ble High Court has held as under: "7. The Claims Tribunal has awarded interest @ 6% per annum which is on a lower side. The Apex Court has awarded interest @ 9% per annum, in the recent case of [PRECEDENT]. Following the judgment of the Apex Court, the rate of interest is enhanced from 6% per annum to 9% per annum."
63. Now, compensation payable to second petitioner Sh.
[ENTITY] is being taken up for consideration.
64. As per MLC, this petitioner had suffered simple injuries. Therefore, for Pain and Suffering, he is given a compensation of Rs. 7,500/.
65. There are no bills of medical treatment or purchase of medicines. Therefore, no compensation can be given qua these heads. However, for Special Diet and Conveyance, he is given a compensation of Rs. 7,500/.
66. Resultantly, total compensation payable to this petitioner would be Rs. 15,000/. Petitioner is also entitled to interest @ 9% per annum from the date of filing of claim petition which is 16.05.2011 till its deposit.
67. Next question is which of the respondents is liable to pay the compensation.
68. The driving license of the driver was fake is evident from the fact that police has filed charge sheet against respondent no. 1 under [SECTION], [SECTION] and [SECTION] of [ACT]. Evidence of Investigating Officer is recorded in this regard.
69. Witness from Licensing Authority, Agra has also shown that the driving license was fake.
70. Even the fake driving license had lapsed on 12.09.10.
71. However, respondent no. 2 has entered in the witness box and has stated that he was shown the driving license issued by Licensing Authority, Agra which appeared to be genuine one. He further stated that the driving test of respondent no. 1 was taken by old driver of the firm to see driving skill of respondent no. 1 which was found to be in order.
72. In view of the evidence of respondent no. 2, no fault can be found with respondent no. 2 for having engaged a driver whose driving license turned out to be fake.
73. Respondent no. 1 is [ENTITY].
74. For inability of respondent no. 2 to produce any license of respondent no. 1 on the date of accident, fault cannot be found with him. For this, reliance can be placed on [PRECEDENT] where the Hon'ble High Court of Delhi has held as under:
9. There could be no doubt that in order to escape liability, not only it should be proved that the driver of the vehicle was not having a licence at the time of the accident, but also the insurance company should prove that the driver was disqualified from holding or obtaining a licence or never had any licence at all. Merely proving that on the date of the accident, the driver did not have a licence, is not enough to hold that the insurance company is not liable for claim. The onus of proving that the driver of the vehicle never had a licence or was disqualified from holding a licence is on the insurance company.
11. Although Respondent No.4, the driver of the offending vehicle could not be served despite repeated efforts but Respondent No.5, the owner has examined himself in evidence and testified that when he kept the driver in his employment, he had seen his driving licence and he had ensured that he knew how to drive the vehicle properly.
12. Thus, from the above facts, it is clear that Respondent no.5, the owner of the offending vehicle has taken all precautions while appointing Respondent no.4, to drive the vehicle in question. So, the insurance company cannot escape its statutory liability.
13. It is only when the insured himself placed the vehicle in charge of a person who does not hold a driving licence that it can be said that he is guilty of the breach of the promise that the vehicle will be driven by a licenced driver. Unless the insured is at fault and guilty of breach, the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor committed a breach of his promise. The burden is, therefore, upon the insurer to establish that the owner of the vehicle is guilty of willful breach of the condition embodied in the policy.
14. It was for the appellant to prove that the insured consciously employed the driver without having licence but apart from taking a plea in the written statement the appellant did nothing to substantiate that the driver at the pertinent time was not having a valid driving licence.
15. The Apex Court in Narcina V. Kamat and Anr. v. Alfredo Antonia Doe Martins and Ors. (1985 ACJ
397), observed;
"When the Insurance Company complains of a breach of the term of contract, which would permit it to disown its liability under the contract of insurance, the burden is squarely on the Insurance Company to prove that the breach has been committed by the other party to the contract. The test in such a situation would be 'who would fail, if no such evidence is led'. With this principle of law in view, the evidence has to be judged. Merely non production of license or nonexamination of the driver of the vehicle is not enough nor any adverse inference can be drawn against the person holding that because of nonexamination of the driver or nonproduction of the license, the burden is discharged by a mere question in cross examination nor the owner is under any obligation to furnish the evidence so as to enable the Insurance Company not to wriggle out its liability under the contract of insurance.
16. A driving licence is expected to be with the Driver and not with the owner of the vehicle. Thus, mere nonproduction of licence is not enough to discharge the burden of the Insurance Company. Merely giving notice to the owner of the vehicle to produce licence is not sufficient nor any admission, if any, of the owner that the driver was not holding a valid driving licence at the relevant time, and therefore cannot absolve the Insurance Company from liability.
17. When the Insurance Company takes the plea that it is not liable to pay compensation or to indemnify the insured as the driver was not holding a valid licence for driving the vehicle on the date of the accident and the vehicle was being driven in breach of the terms of the policy, the Insurance Company has to discharge the burden by placing legal and cogent evidence before the Tribunal (see [PRECEDENT] (supra) : and the Division Bench cases of this Court in [PRECEDENT]).
19. However, in the case in hand, the owner of the offending vehicle has testified that he has seen the driving licence of the driver but unfortunately he did not retain the copy of the driving licence of the driver who being a resident of Bihar could not be served with the summons.
20. Thus, the insurance company being the insurer cannot avoid its liability to indemnify the owner, for no fault of the owner when he had seen the driving licence of the driver as deposed by him on oath.
21. In absence of any iota of evidence from the side of appellant, I do not find any error in the impugned judgment whereby the Tribunal directed the Insurance Company to pay the compensation amount to the claimants without any recovery rights.
75. In the case of National Insurance Company Ltd. v.
Swaran Singh & Ors. 109(2004) Delhi Law Times 304 (SC) it was held that: "Mere breach of condition of policy shall not absolve the insurance company from its liability unless and until it is proved that the breach was willful on the part of the insured."
76. In the case of [PRECEDENT], it was held that:
20. When an owner is hiring a driver he will therefore have to check whether the driver had a driving license. If the driver produces a driving license which on the face of it looks genuine, the owner is not expected to find out whether the license has infact been issued by a competent authority or not. The owner should than take the test of the driver. If he find that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companies expect owners to make inquiries with RTOs which are spread all over the country, whether the driving license shown to them is valid or not. Thus, where the owner has satisfied himself that the driver has a license and is driving competently there would be no breach of [SECTION]. The insurance company would not then be above of liability. If it ultimately turns out that the license was fake the insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the license was fake and still permitted that person to drive. More importantly even in such a case the insurance company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in [ENTITY]'s [ENTITY]'s and [ENTITY]'s case. We are in full agreement with the views expressed therein and see no reason to take a different view.
77. In similar circumstances, recovery rights were denied by the Hon'ble High Court of Delhi in the case of [PRECEDENT]. MAC App.
No. 50/05 dated 04.05.12.
78. Resultantly, the compensation to both the petitioners shall be paid by insurance company which be paid within 30 days from today under intimation to the petitioners by registered post.
79. Copy of this order be given dasti to all the parties and file be consigned to Record Room.
Announced in the open Court On the 27th Day of July, 2012.
([ENTITY]) PRESIDING OFFICER MOTOR ACCIDENTS CLAIM TRIBUNALII DWARKA COURTS: NEW DELHI