IN THE COURT OF MS. [ENTITY], PO: MOTOR ACCIDENT CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI [CASE NUMBER] Date of Institution: 25.04.2015 IN THE MATTER OF: [ENTITY] S/o Shri Mohan Lal R/o H.No.F255, Block EC J.J. Colony Inderpuri New Delhi 110012. Petitioner Versus 1. [ENTITY] S/o Late Shri Sardari Lal Kapoor R/o H.No.B35, Ramesh Nagar Double Storey New Delhi 110015. 2. [ENTITY] Issuing Office: 2nd Floor, Big Jos Tower A8 Netaji Subhash Place New Delhi 110034. Respondents
Final Arguments heard : 06.10.2015 Award reserved for : 30.10.2015 Date of Award : 30.10.2015 [CASE NUMBER] Page no. 1 of 24 [ENTITY] v Rajiv Kapoor & Ors. AWARD
1. Vide this judgmentcumaward, I proceed to decide the claim petition filed u/[SECTION] and [SECTION] of [ACT], 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioner that on 25.02.2015 at about 23.40 hours he was going on motorcycle bearing No.DL6SAR1158 as a pillion rider which was driven by his friend Shri [ENTITY] as per rules and regulations and in a normal speed and on proper way and correct side of the road. They were going from Inderpuri to Connaught Place, New Delhi. During the said process when the injured/ petitioner reached "Near Ramlila Ground Main Road Todapur, Inderpuri, New Delhi" all of a sudden one vehicle bearing No.DL8CAF3017 (Car) came in a high speed which was driven by the respondent No.1 in rash and negligent manner and in contravention of rules of traffic without blowing any horn and without giving indicator and hit the motorcycle with very great force. Due to the forceful impact the petitioner/ injured fell down on the road along with the other person and the motorcycle and received multiple grievous injuries along with the other person. The petitioner was removed to RML Hospital, New Delhi where MLC was prepared by the doctors of the concerned hospital. It is contended that the accident occurred due to rash and negligent driving of the respondent No.1 who was [CASE NUMBER] Page no. 2 of 24 [ENTITY] v Rajiv Kapoor & Ors.
driving the offending vehicle at the time of the accident in a rash and negligent act and due to his act an innocent person became the victim of the same. It is stated that in respect of the accident FIR No.49/15 under [SECTION] [ACT] was registered at PS Inderpuri.
3. It is submitted that due to the accident the petitioner received multiple grievous injuries and other specific injuries and wounds, swelling and pain on different parts of the body and the petitioner had spent a huge amount on his treatment but he was not well, therefore his all deposited money was spent on his treatment but he was not well, then he arranged more money from his relatives as a friendly loan which was already spent on his treatment but the same was not returned by him till date. It is stated that an amount of Rs. 2,75,000/ was spent on the treatment and the treatment was still continuing. It is averred that the petitioner was not doing any work because pain and suffering was continuing in his body till date and he had spent his all money on conveyance charges, room charges, attendant charges, on medical prescriptions and on purchasing the medicines and on special diet and other connected charges, etc. but he was not well till date because pain and suffering was continuing in his body till date. It is contended that due to the accident the petitioner and his family members suffered from mental pain and agony, loss of income, loss of works, loss of enjoyment, loss of social activities, loss of general or special damages, etc. At the time of accident the petitioner was about 24 years old and was doing private service and was [CASE NUMBER] Page no. 3 of 24 [ENTITY] v Rajiv Kapoor & Ors.
earning Rs.20,000/ per month which was handsome income to run his family but due to the accident he was on bed rest and long treatment and he lost his income and suffered from heavy loss of income as well as expenses on treatment which were continuing till date. It is averred that at the time of the accident the respondent No.1 was driving the offending vehicle and the respondent No.1 was also the owner of the offending vehicle and the respondent No.2 is the insurance company of the offending vehicle, therefore all the respondents were liable to pay the compensation amount to the injured/ petitioner, as per rules, jointly or severally. It is prayed that an amount of Rs. 50,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
4. Written statement was filed on behalf of the respondent No.1 taking the preliminary objections that the accident did not occur due to the negligence of the respondent No.1 and the respondent No.1 had been falsely and wrongly implicated in the criminal case vide FIR No.49 of 2015, under [SECTION] [ACT], PS Inder Puri. It is submitted that the vehicle was insured with [ENTITY] i.e. the respondent No.2, as such if any claim was made out it would be against the respondent No.2 and the respondent No.1 was not liable to compensate the petitioner in any manner whatsoever. It is contended that the alleged accident had taken place on 25th February, 2015 whereas the case was registered on 27th February, 2015 and in his statement made before the I.O. under [SECTION] of [ACT], the [CASE NUMBER] [ENTITY] v Rajiv Kapoor & Ors.
petitioner had flatly refused to initiate any legal proceedings against the respondent No.1. The averments made in the claim petition were denied. It is submitted that the accident had not occurred/ taken place due to the negligence of the respondent No.1 and the respondent No.1 was not liable to make any payment of compensation claimed by the petitioner. It is denied that the accident had occurred due to rash and negligent driving of the respondent No.1.
5. Reply/reasoned decision was filed on behalf of the insurer/ respondent No.2 [ENTITY] admitting the insurance of the interest of owner of vehicle bearing registration No.DL8CAF3017 subject to the terms, conditions, exclusions and exceptions of the private car policy bearing No.I1581721 issued for the period from 13.04.2014 to 12.04.2015. It is submitted that the accident if any, had occurred on account of sole negligence on the part of the driver, Shri [ENTITY] while driving the motorcycle bearing No.DL6SAR1158 carelessly, negligently and in zig zag manner, in violation of traffic rules and provisions of [ACT] and without holding valid and effective driving license as he as well as the injured had consumed alcohol at the time of the alleged accident and dashed the vehicle No.DL8CAF3017. Thus, the driver of the motorcycle and the injured/ petitioner being tortfeasors were not entitled to any compensation, therefore, neither the driver and owner nor the insurance company of the vehicle No.DL8CAF3017 could be asked to pay compensation to the petitioner. It is stated that it was expected that every [CASE NUMBER] Page no. 5 of 24 [ENTITY] v Rajiv Kapoor & Ors.
citizen should behave in such way which would not endanger his as well as public safety or life. Therefore, no cause of action had arisen against the respondent No.2. It is contended that the petition is bad for nonjoinder of necessary parties as the driver, owner and insurer of the motorcycle were necessary parties, since the accident, if any had occurred on account of sole negligence on the part of the driver of the motorcycle which was being driven in a rash and negligent manner and thereby caused the accident. It is stated that as per the MLC, the driver as well as the pillion rider/ injured were under the influence of alcohol at the time of the alleged accident and sustained the alleged injury. Moreover, the injured/ motorcyclist had not produced his driving license to the IO. It is submitted that the alleged accident occurred due to the sole rashness and negligence of the driver of the motorcycle as well as the injured, alternatively, the driver of the motorcycle bearing No.DL8SAR1158 was guilty of contributory negligence and his negligence was to a greater extent. An offer of Rs.18,753/ after deduction of 50% contributory negligence on the part of driver of motorcycle was made.
6. Detailed Accident Report was filed by the IO on 25.4.2015 and thereafter the claim petition was filed on 20.5.2015. Vide order dated 05.08.2015 from the pleadings of the parties, the following issues were framed:
1. Whether the petitioner sustained injuries in the accident which occurred on 25.02.2015 at about 23.40 hrs. near Ramleela Ground, Main Road [CASE NUMBER] Page no. 6 of 24 [ENTITY] v Rajiv Kapoor & Ors.
Todapur, Inderpuri, New Delhi caused by rash and negligent driving of vehicle No.DL8CAF3017 driven and owned by respondent no.1 and insured with respondent no.2? OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. The petitioner Shri [ENTITY] appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He stated that he received grievous injuries on his internal parts and chest and he also received fracture. After the accident, he was removed to RML Hospital, New Delhi where the MLC was prepared by the doctors of the concerned hospital. Thereafter he was removed to Behl Hospital where his operation was done. He stated that he had become a disabled person and he received disability. He stated that after the accident his work was stopped due to long time treatment and he was suffering economic problem. He stated that his elder brother had taken leave for him as an attendant for the period of bed rest, as he was on complete bed rest for four to five months. He stated that he could not walk fast and received disfigurement. He could not sit and stand in proper way and could not work properly, therefore he was facing great financial losses and other irreparable losses etc. Copy of MLC is Ex.PW1/1, discharge slip is Ex.PW1/2, medical bills are Ex.PW1/3 (colly), OPD cards are Ex.PW1/4 (colly), educational [CASE NUMBER] Page no. 7 of 24 [ENTITY] v Rajiv Kapoor & Ors.
certificate is Ex.PW1/5 and his ID card is Ex.PW1/6. PE was closed on 6.10.2015. RE was closed on 6.10.2015.
8. I have heard the Learned Counsel for the petitioner as well as the Learned Counsels for the respondents and perused the record. The petitioner was also examined on 6.10.2015 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in [PRECEDENT].
9. My findings on the specific issues are as under:
10. As the petition has been filed U/[SECTION] [ACT] it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in [PRECEDENT] as follows:
"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 Apex Court in [PRECEDENT] (supra). On perusal [CASE NUMBER] [ENTITY] v Rajiv Kapoor & Ors.
of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under [SECTION], [ACT] against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the [ACT] are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under [ACT], the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In [PRECEDENT], it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under [SECTION] and [SECTION] of the [ACT].
[CASE NUMBER] Page no. 9 of 24 [ENTITY] v Rajiv Kapoor & Ors.
11. The case of the petitioner is that on 25.02.2015 at about 23.40 hours he was going on motorcycle bearing No.DL6SAR1158 as a pillion rider which was driven by his friend Shri [ENTITY] as per rules and regulations and in a normal speed and on proper way and correct side of the road. They were going from Inderpuri to Connaught Place, New Delhi. During the said process when the injured/ petitioner reached "Near Ramlila Ground Main Road Todapur, Inderpuri, New Delhi" all of a sudden one vehicle bearing No.DL8CAF3017 (Car) came in a high speed which was driven by the respondent No.1 in rash and negligent manner and in contravention of rules of traffic without blowing any horn and without giving indicator and hit the motorcycle with very great force. Due to the forceful impact the petitioner/ injured fell down on the road along with the other person and the motorcycle and received multiple grievous injuries along with the other person. The petitioner was removed to RML Hospital, New Delhi where MLC was prepared by the doctors of the concerned hospital. It was contended that the accident occurred due to rash and negligent driving of the respondent No.1 who was driving the offending vehicle at the time of the accident in a rash and negligent act and due to his act an innocent person became the victim of the same. It was stated that in respect of the accident FIR No.49/15 under [SECTION] [ACT] was registered at PS Inderpuri. In paras 2 and 3 of his affidavit Ex.PW1/A the petitioner had reiterated the mode and manner of the accident as stated in the claim petition.
[CASE NUMBER] Page no. 10 of 24 [ENTITY] v Rajiv Kapoor & Ors.
12. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of MLC and medical documents, copy of seizure memos; copy of DD, copy of mechanical inspection report of the offending vehicle and of the motorcycle No.DL6SAR1158, copy of verification report of the RC of the offending vehicle with the copy of RC, copy of the insurance policy of the offending vehicle and its verification report, copy of verification report of the DL of the respondent No.1 with a copy of the DL, copy of notice under [SECTION] [ACT], copy of arrest memo and personal search memo and copy of statement under [SECTION] [ACT] As per the FIR No.49/15 under [SECTION] [ACT], PS Inder Puri the case was registered on the basis of complaint of [ENTITY] who was driving the motorcycle on which the petitioner was travelling as pillion rider wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under [SECTION] [ACT]. It was contended on behalf of the respondents that the accident had taken place on 25.2.2015 but the FIR was got registered only on 27.2.2015. However it is seen that the DD is dated 25.2.2015 and as such the police had information about the accident soon after the accident. Further the complainant in the FIR itself had stated that on the day of the accident he had not given any statement due to pain and he had stated that he did not want any legal proceedings. As such it cannot be said that the delay in lodging the FIR was such as would vitiate the case of the petitioner.
[CASE NUMBER] Page no. 11 of 24 [ENTITY] v Rajiv Kapoor & Ors.
13. The respondent No.1 who is the owner and driver of the alleged offending vehicle had filed the written statement averring that the accident did not occur due to the negligence of the respondent No.1 and the respondent No.1 had been falsely and wrongly implicated in the criminal case vide FIR No. 49 of 2015, under [SECTION] [ACT], PS Inder Puri. It was contended that the alleged accident had taken place on 25th February, 2015 whereas the case was registered on 27th February, 2015 and in his statement made before the I.O. under [SECTION] of [ACT], the petitioner had flatly refused to initiate any legal proceedings against the respondent No.1. It was denied that the accident had occurred due to rash and negligent driving of the respondent No.
1. During crossexamination by the learned counsel for the insurance company PW1 stated that he himself as well as driver [ENTITY] had consumed beer. At the time of the accident the driver [ENTITY] had DL with him. During crossexamination by the learned counsel for the respondent No.1 PW1 admitted that there was some construction work going on at the time of the accident. The speed of their motorcycle was 4050 k.m./hr. The speed of the offending vehicle was 5060 k.m./hr volunteered it was coming from the wrong side. He stated that only the offending vehicle was coming from the wrong side and no other traffic was coming from the wrong side. He denied the suggestion that due to diversion the traffic from both the sides was going on the same way. He did not know who had made the call to PCR. He denied the suggestion that the accident took place due to the sole rash and negligent driving of the motorcycle driver who had consumed beer at the time of the [CASE NUMBER] Page no. 12 of 24 [ENTITY] v Rajiv Kapoor & Ors.
accident. He denied the suggestion that the accident did not take place due to rash and negligent driving of the alleged offending vehicle.
14. PW1 thus stated that he himself as well as driver [ENTITY] had consumed beer. It was argued on behalf of the insurance company that the driver of the motorcycle and the petitioner had consumed alcohol at the time of the accident and dashed the motorcycle against the alleged offending vehicle. A perusal of the MLC of the petitioner as well as the driver of the motorcycle [ENTITY] shows that alcohol was present in the breath of the petitioner and of [ENTITY] but there is nothing to show that any sample of the blood was taken to test for the quantity of alcohol in the blood of the petitioner or the driver of the motorcycle. There is also nothing to show that the quantity of alcohol was so high that the driver of the motorcycle would not have been able to control the motorcycle. Further the MLC of the respondent No.1 also shows the presence of alcohol.
15. During further crossexamination PW1 had stated that at the time of the accident the driver [ENTITY] had DL with him and in the connected case copy of DL of [ENTITY] was placed on record. It is pertinent that PW1 admitted that there was some construction work going on at the time of the accident. He had volunteered that the offending vehicle was coming from the wrong side. Though PW1 had admitted that there was some construction work going on at the time of the accident, he had stated that only the offending [CASE NUMBER] Page no. 13 of 24 [ENTITY] v Rajiv Kapoor & Ors.
vehicle was coming from the wrong side and no other traffic was coming from the wrong side and he denied the suggestion that due to diversion the traffic from both the sides was going on the same way. It is seen that the accident had taken place on the side of the petitioner as per the site plan. It is the case of the petitioner that the offending vehicle had hit his motorcycle. The mechanical inspection report of the offending vehicle shows that the front right side rim was damaged and the tyre was torn and chimta and shocker were damaged, front right side body was damaged, front bumper and jali were damaged and the right side headlight and indicator were broken. The mechanical inspection report of the motorcycle of the petitioner shows that right side handle and brake pedal and spot and foot rest and chassis were damaged, chain cover was damaged, back number plate was damaged as also the mudguard, seat and battery cover were broken and the right side leg guard was damaged and the front and back indicators were broken. Thus the involvement of the offending vehicle in the accident cannot be disputed. It was stated in the FIR that the offending vehicle had come from the opposite side and hit the motorcycle of the petitioner from the side and the site plan also shows that the accident had taken place on the side of the petitioner. As such there is nothing to show contributory negligence on the part of the driver of the motorcycle on which the petitioner was travelling. Even otherwise the petitioner was not driving the motorcycle at the time of the accident and he could not have been said to have contributed to the happening of the accident.
[CASE NUMBER] Page no. 14 of 24 [ENTITY] v Rajiv Kapoor & Ors.
16. The respondent No.1 who is the driver and owner of the offending vehicle has not adduced any evidence to dispute the version put forth by the petitioner or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under [SECTION] [ACT]. In [PRECEDENT] it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondent No.1 has also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.DL8CAF3017. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
17. It was stated that due to the accident the petitioner/ injured fell down on the road and received multiple grievous injuries. The petitioner was removed to RML Hospital, New Delhi where MLC was prepared by the doctors of the concerned hospital. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner. Thus it stands established that the petitioner had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioner and against the respondents.
[CASE NUMBER] Page no. 15 of 24 [ENTITY] v Rajiv Kapoor & Ors. Issue No.2
18. Since issue No.1 has been decided in favour of the petitioner he would be entitled to compensation as per the provisions of the Act. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, he is further entitled to non pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
19. The case of the petitioner is that due to the accident on 25.2.2015 he fell down on the road and received multiple grievous injuries. The petitioner was removed to RML Hospital, New Delhi where MLC was prepared by the doctors of the concerned hospital. It was submitted that due to the accident the petitioner received multiple grievous injuries and other specific injuries and wounds, swelling and pain on different parts of the body and the petitioner had spent a huge amount on his treatment but he was not well, therefore his all deposited money was spent on his treatment but he was not well, then he [CASE NUMBER] Page no. 16 of 24 [ENTITY] v Rajiv Kapoor & Ors.
arranged more money from his relatives as a friendly loan which was already spent on his treatment but the same was not returned by him till date. It was stated that an amount of Rs.2,75,000/ was spent on the treatment and the treatment was still continuing. It was averred that the petitioner was not doing any work because pain and suffering was continuing in his body till date and he had spent his all money on conveyance charges, room charges, attendant charges, on medical prescriptions and on purchasing the medicines and on special diet and other connected charges, etc. but he was not well till date because pain and suffering was continuing in his body till date. It was contended that due to the accident the petitioner and his family members suffered from mental pain and agony, loss of income, loss of works, loss of enjoyment, loss of social activities, loss of general or special damages, etc. The petitioner in paras 1, 2, 3 and 4 of his affidavit Ex.PW1/A had deposed to that effect. He stated that he received grievous injuries on his internal parts and chest and he also received fracture. After the accident, he was removed to RML Hospital, New Delhi where the MLC was prepared by the doctors of the concerned hospital. Thereafter he was removed to Behl Hospital where his operation was done. He stated that he had become a disabled person and he received disability. He stated that he could not walk fast and received disfigurement. He could not sit and stand in proper way and could not work properly. Copy of MLC is Ex.PW1/1, discharge slip is Ex.PW1/2 and medical bills are Ex.PW1/3 (colly) and OPD cards are Ex.PW1/4 (colly).
[CASE NUMBER] Page no. 17 of 24 [ENTITY] v Rajiv Kapoor & Ors.
20. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and as per the same nature of injuries was opined to be simple. The documents placed on record also do not show that the petitioner had suffered anything but simple injury though he had remained admitted in hospital. There is also nothing to show that the petitioner had sustained any disability in the accident. During crossexamination by the learned counsel for the insurance company PW1 stated that he remained in RML Hospital for 5 hours. Thereafter, he was discharged from the hospital. He admitted that he had not suffered any fracture due to the accident volunteered he had sustained injuries in his chest and internal part (5 stitches). He admitted that he had not sustained injuries on any other part of the body except chest and internal part. He denied the suggestion that he was discharged from RML Hospital in good condition. He denied the suggestion that he was admitted in Behl Hospital as an afterthought to maximize the claim or that he had not required further treatment. He denied the suggestion that he had filed false treatment record and medical bills of Behl Hospital. He denied the suggestion that he had not spent expenses on medical bills as filed by him. He denied the suggestion that he had suffered simple injuries. Thus PW1 admitted that he had not suffered any fracture due to the accident and volunteered that he had sustained injuries in his chest and internal part (5 stitches). He also admitted that he had not sustained injuries on any other part of the body except chest and internal part. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The [CASE NUMBER] Page no. 18 of 24 [ENTITY] v Rajiv Kapoor & Ors.
petitioner had stated that he had spent an amount of Rs.2,75,000/ on his treatment. The petitioner had filed bills for an amount of Rs.17,507/ approximately. Looking to the nature of the injuries the petitioner is held entitled to the amount of the bills. The petitioner would incur some expenses even subsequently. Accordingly an amount of Rs.20,000/ is awarded towards medical treatment and expenses including the amount of the bills.
21. Note can also be taken of the fact that on account of the accident the petitioner may not have been able to perform his day to day duties towards his family and may not have been able to enjoy the amenities of life and would have undergone pain and suffering. No document has been placed on record regarding expenditure on conveyance, special diet or attendant charges. During crossexamination by the learned counsel for the insurance company PW1 admitted that he had not filed any document to show that he had engaged any attendant. There is also nothing to show any expenditure on these counts. There is also nothing to show that the injuries of the petitioner were such that he might have had to incur extra expenditure on conveyance or attendant charges. However it can be taken note of that he might have had to spend some amount on special diet.
[CASE NUMBER] Page no. 19 of 24 [ENTITY] v Rajiv Kapoor & Ors. LOSS OF INCOME
22. It is the case of the petitioner that at the time of accident he was about 24 years old and was doing private service and was earning Rs.20,000/ per month which was handsome income to run his family but due to the accident he was on bed rest and long treatment and he lost his income and suffered from heavy loss of income as well as expenses on treatment which were continuing till date. The petitioner in para 4 of his affidavit Ex.PW1/A had deposed to that effect. He stated that after the accident his work was stopped due to long time treatment and he was suffering economic problem. He stated that he was on bed rest for 45 months and he could not work properly, therefore, he was facing great financial losses and other irreparable losses. However the petitioner has not placed on record any document to show what he was doing or how much amount he was earning and it was not even stated where he was doing private service. During crossexamination by the learned counsel for the insurance company PW1 admitted that he had not filed any document to show his income and employment. He denied the suggestion that he was not doing any job and earning Rs.15,000/ to 20,000/. He admitted that he had not filed any medical prescription for bed rest. He denied the suggestion that he had not suffered any financial loss due to the accident. Thus PW1 himself stated that he had not placed on record any document to show his income and employment. As such there is nothing to show that the petitioner was earning Rs.15,000/ to Rs.20,000/ per month at the time of the [CASE NUMBER] [ENTITY] v Rajiv Kapoor & Ors.
accident. During examination by the Tribunal the petitioner stated that he was 24 years old. He stated that at the time of the accident he was working with Delhi Cantonment Board and was earning Rs.15,000/ per month. However there is nothing to show the same.
23. The petitioner had stated that he remained on bed rest for 45 months but the petitioner has not produced any document to show that he remained on bed rest for any particular period and there is nothing to show that he was advised bed rest for any particular period or that on account of the injuries sustained in the accident he was unable to work or to show the period for which he was not able to work. There is also nothing to show that he remained on bed rest for 45 months. During crossexamination PW1 had admitted that he had not filed any medical prescription for bed rest. In the absence of any medical advice, note can be taken of the fact that the petitioner may not have been able to perform his avocation for some period. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs. 10,000/ consolidated on account of loss of income.
24. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that he acquired any disability on account of the accident or that he is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce his efficiency to work and thereby he would [PRECEDENT] [ENTITY] v Rajiv Kapoor & Ors.
suffer loss of future income. Accordingly the petitioner cannot be held entitled to any amount on account of loss of future prospects.
25. In the facts and circumstances of the case and in view of the above discussion a lump sum amount of Rs.38,000/ would be just and reasonable. Accordingly an amount of Rs.38,000/ is awarded as compensation in favour of the petitioner.
RELIEF
26. The petitioner is awarded a sum of Rs.38,000/ (Rs.Thirty Eight Thousand only) along with interest @ 9% per annum from the date of filing of the DAR till its realization including, interim award, if any already passed against the respondents and in favour of the petitioner. The respondent No.2 is directed to deposit the award amount directly in court by way of crossed cheque/ demand draft within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. APPORTIONMENT OF LIABILITY:
27. The respondent No.1 is the driver cum owner and the respondent No.2 is the insurer of the offending vehicle. It would be argued on behalf of the insurance company that the respondent no. 1 was driving after drinking and as such the insurance company was not liable. However, there is nothing to [CASE NUMBER] Page no. 22 of 24 [ENTITY] v Rajiv Kapoor & Ors.
show that the alcohol level in the blood of the respondent no. 1 was got measured. As such the insurance company cannot be absolved of its liability. Thus the respondents No.1 and 2 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.2. Respondent No.2 i.e. [ENTITY] being the insurance company in its reply had admitted the insurance of the interest of owner of vehicle bearing registration No.DL8CAF3017 subject to the terms, conditions, exclusions and exceptions of the private car policy bearing No.I1581721 issued for the period from 13.04.2014 to 12.04.2015. There is no evidence on behalf of the respondent No.2 to show that there was any violation of the rules and terms of policy by the respondent No.1 and in fact the duly verified documents in respect of the offending vehicle were placed on record with the DAR. Hence, the respondent No.2 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondent No.1. The respondent No.2 being the insurer is directed to deposit the award amount in the court by way of crossed cheque/ demand draft within 30 days of the passing of the award with interest at the rate of 9% from the date of filing of the DAR till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
28. [ENTITY] to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. [ENTITY] is directed to note the particulars of the award amount in the register today itself. The petitioner shall file his complete [CASE NUMBER] [ENTITY] v Rajiv Kapoor & Ors.
address as well as address of his counsel for sending the notice of deposit of the award amount. The insurer shall deposit the award amount along with interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 29.1.2016.
An attested copy of the award be given to the parties (free of cost). File be consigned to record room.
Announced in open court on this 30th day of October, 2015 ([ENTITY]) PO: MACT2 New Delhi [CASE NUMBER] Page no. 24 of 24 [ENTITY] v Rajiv Kapoor & Ors.