Final Order 1

Order Details: Order Number
Pdf Text: 1 MACP 666/03
Received on : 03.05.2003
Registered on : 13.06.2003
Decided on : 22.04.2013
Duration : 9Y.10M.9D.
Exh.
BEFORE THE ADDITIONAL MEMBER,MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNE
AT PUNE
(Before Shri V.K.Shewale,Addl.Member, M.A.C.T.Pune)
M.A.C.P. NO.666/2003
Shri Sameer Hussain Shaikh, )
Age about 26 years,Occ.Business )
Residing: R.B.I.,Room no.60, ) .. Applicant.
Railway Quarters,Ghorpadi. )
Pune 411 001. )
Vs.
1] Shri Rajendra Krishna Kumbhar, )
Age about Adult,Occ.Medical Practitioner, )
R/o 73, Ghorpadigaon, )
Pune 411 001. )
2] Shri Asgar M.Khan, )
Age about adult,Occ.Business, ) ...Opponents.
R.o 852,Bhawani Peth, )
Pune 411 042. )
3] The New India Assurance Co.Ltd. )
Dr.Ambedkar Road,Camp. )
Pune 411 001. )
Policy No.623531) )
...
Appearances:
Shri Khan, Advocate for applicant.
Opponent no.1 and 2 exparte.
Shri Jagade,Advocate for opponent no.3.
...
Injury claim for compensation
-- 1 of 13 --
2 MACP 666/03
of Rs. 8,00,000/.
...
:JUDGMENT:
(Delivered on 22nd day of April,2013)
The applicant having had sustained grievous injuries and
thereby permanent disability had moved this application for injury
compensation.
2] The briefly stated case is as follows:
That the applicant and opponent no.1 are the friends. The
applicant with the help of his father run M/s City Auto Works at
Ghorpade,Pune. Due to experience, the applicant had acquired skill in
ascertaining condition of motor vehicles. Therefore, purchasers of second
hand motor vehicles were soliciting his guidance before purchase of four
wheeler vehicles. The opponent no.1 was to purchase one Maruti van.
Hence, on 4.6.98, applicant was called to have test ride by Maruti Van
No.MH12W6105 belonged to opponent no.2 which was tobe purchased
by opponent no.1. The car was driven by opponent no.1. At that time, one
Deepak Randive (deceased) had occupied front seat near opponent no.1.
The back seat was occupied by the applicant, Prabhakar Ingale and one
Bansode. The said vehicle was driven by the opponent no.1 in most rash
and negligent manner. At about 1.30 a.m., it reached within the limits of
Saswad police station by Pune Saswad road and more particularly, near
Zende vicinity. At the same time, from opposite direction, one motor
vehicle came without applying dipper, therefore, the opponent no.1 while
taking his above said vehicle to one side, lost control , hence, it went off
side of the road, dashed to the stationary tractor and trolley, belonging to
-- 2 of 13 --
3 MACP 666/03
one Zende and then dashed to the cattle shed, resultant upon, Deepak
Randive was entangled in the van. However, applicant,opponent no.1 and
Prabhakar Ingale came out of the car, raised shouts for help, hence,
persons from Zende vicinity had broke open the door of the car and had
taken out Deepak Randive there from. However, he had succumbed to the
injuries on the spot.
3] So far as injuries sustained to the applicant, it is the
contention that he has sustained injuries over his head and therefore,he
had suffered unconsciousness. He was admitted in Ruby Hall Clinic and
thereafter in KEM hospital but after the treatment taken about one year,
he could not overcome the ailment. He had suffered from Hemiplegia .
Therefore, could not perform work due to the said ailment and thereby
had suffered 50% permanent disability.
4] So far as age and income of the applicant, it is the contention
that he was hardly 26 years old having income of Rs.7000/p.m.
However,due to the above said injuries, he has lost source of income as he
has become handicapped due to Hemiplegia,hence cannot discharge his
duty.
5] It is his contention that the above said Maruti van belonged to
opponent no.2. It was possessed by the opponent no.1 at the time of the
incident,which was insured with the opponent no.3. Hence, he has prayed
for compensation jointly and severally from the above said opponents.
6] So far as criminal prosecution, it is the contention that Saswad
police had prosecuted the opponent no.1 vide C.R.no.31/98, registered
-- 3 of 13 --
4 MACP 666/03
u/ss 279,304A,337,338 ,427 of the Indian Penal Code and u/s 184 of
Motor Vehicles Act. Hence, the applicant has claimed above said amount
of compensation with 12% interest. Hence, the claim followed on
3.5.2003.
7] The opponent no.1 and 2 duly served with the notice of the
claim, published in Daily Lokmat dt.20.11.11 returnable on 2.12.11
absented, hence, claimed proceeded exparte in their respect.
8] The opponent no.3 has resisted the claim by filing written
statement vide Ex.32 wherein, it has denied the claim in toto. It is the
contention that no document has been placed on record to point out that
the above said Maruti van belonged to the opponent no.2, was duly
insured with the opponent on the date of accident. Therefore, it has
denied the insurance of the said vehicle and thereby, liability in paying
any amount of compensation to the applicant.
9] Secondly, it is the contention that applicant has to prove
strictly that the accident had taken place out of the use of offending
Maruti vehicle moved by opponent no.1 on the date of incident and
thereby applicant had suffered permanent disability and loss of income.
10] It has also denied age and income of the applicant. It came
with the contention that applicant has to discharge duty to prove that the
above said vehicle was duly insured with the said opponent, then only,
the said opponent can be called upon to discharge its onus that the
vehicle was not insured with it. Hence on all the said grounds, it has
prayed for dismissal of the claim.
-- 4 of 13 --
5 MACP 666/03
11] Thus, on the above rival contention of the parties, issues vide
Ex.37 are framed on which, I have recorded findings with the reasons
given below:
Issues Findings
1] Whether applicant had sustained grievous Yes.
injury and thereby permanent disability, on
account of injuries sustained on 4.6.98 at
1.30 a.m. out of the use of offending Maruti
car bearing no.MH12W6105?
2] Whether offending vehicle was driven by the Yes.
driver in most rash and negligent manner on
the date of incident?
3] Whether the offending vehicle was insured No.
with opponent no.3?
4] Whether applicant is entitled to get Yes.
compensation?
5] What order and award? As per the final order.
REASONS
12] The applicant had examined himself vide Ex.38, in between
9.3.12 to 21.7.12 . He has placed reliance on the true copies of the
chargesheet, medical certificate, statements of the witnesses, recorded by
the Investigating Officer, furnished vide Ex.6/1 to 14. The applicant has
not produced form AA to prove who was the owner of the vehicle on the
date of accident and with whom, it was insured.
13] With the list Ex.41, he has produced affidavit of Smt.Salima
-- 5 of 13 --
6 MACP 666/03
Husein Shaikh dt.7.4.2012 about City Auto Works Garage was run by
applicant and his father. She has also produced her address proof
viz.xerox copy of election card, shop licence of the above said garage,
death extract of Husein Gafoor Shaikh, father of the applicant. Again,
vide the list Ex.50, he has produced true copy of his medical treatment
received from Ruby hospital, Budhrani hospital. In addition, with the list
Ex.53/A, he has produced copy of Judgment in Summary Trial Case
no.637/98 wherein, opponent no.1 was the accused and has been
acquitted of the offences punishable u/s 304A,337,338,427 of I.P.C. and
u/s 184 of the M.V.Act. Then, again with the list Ex.54/A, he has
produced true copy of his disability certificate issued by Superintendent of
Sassoon hospital,Pune only meant for employment and special
conveyance allowance. Then, he has closed oral evidence.
14] The opponent no.3 has not adduced evidence by filing purshis
Ex.52.
15] Issue nos.1 to 5:
First of all, I have to find out whether the applicant had
sustained grievous injuries and thereby permanent disability out of the
use of Maruti Van No.MH12W6105, belonged to the opponent no.2,
having possessory title with the opponent no.1 on the date of incident. In
this context, no documentary evidence whatsoever has been placed on
record by the applicant for the reasons best known to him. However, he
has categorically deposed that the said vehicle belonged to the opponent
no.2 which was purchased by the opponent no.1 and it met with an
accident on 4.6.98 at 1.30 a.m.within the limits of Saswad police
station,when it was plied by the opponent no.1 by carrying the
-- 6 of 13 --
7 MACP 666/03
applicant ,one Deepak Randive, Prabhakar Ingale and Bansode, out of
them, Deepak Randive had occupied front left seat near the opponent
no.1 , had sustained grievous injuries and succumbed to those on the
spot. The opponent no.1 and 2 though duly served with the public notice,
duly published in Daily Prabhat, absented, hence, evidence of the
applicant remained unshattered about the said vehicle belonged to
opponent no.2 and it was purchased by the opponent no.1 without
actually effecting transfer in the registration book of the said vehicle and
with R.T.O. record. Thus, it is clear from the evidence of applicant that the
opponent no.1 had possessory title over the vehicle, on the date of
incident, which belonged to the opponent no.2.
16] So far as accident having had taken place out of the use of
said vehicle, it is an admitted fact that Saswad police did prosecute the
opponent no.1 vide Cr.no.31/98 for the offences punishable u/s 279,304
A,337,338,427 of I.P.C. and u/s 184 of the Motor Vehicles Act.
17] So far as criminal rashness and negligence is concerned, it is
clear from the evidence of applicant that when the incident did take
place, he was in sound sleep in the said vehicle and after hearing impact
of the accident, he woke up and noticed having had sustained grievous
injuries as the said vehicle went off side the road, dashed to the trolley of
the tractor belonging to one Zende and then,has dashed to his cattle shed.
In such manner, it is crystal clear that incident did take place due to rash
and negligent driving of the above said vehicle driven by the opponent
no.1.
18] The applicant himself had produced the copy of Judgment in
-- 7 of 13 --
8 MACP 666/03
S.T.C.no.637/98 whereby opponent no.1 was prosecuted but on 30.9.99,
came tobe acquitted of the charges. Thus, the said acquittal has no
bearing in deciding the application u/s 166 of M.V.Act. Thus, I have to
only ascertain whether out of the use of Maruti Omni No.MH12W6105
and it having been driven in rash and negligent manner, accident cuasing
grievous injuries to the applicant, has taken place or not. Thus, it is
eloquent from the evidence on record that due to rash and negligent
driving of the said vehicle, applicant had sustained grievous injuries and
thereby permanent disability.
19] So far as permanent disability suffered to the applicant, he has
not examined any doctor nor he has produced original injury reports on
record. However, he has placed on record xerox copies of the medical
treatment taken from Ruby hospital and KEM hospital. The said record
speaks that due to the injuries sustained to the head, applicant is suffering
from Hemiplegia. The said finding has been supported by the
documentary evidence of disability certificate issued by Board of Sassoon
hospital which is produced vide Ex.54/1 .It is indicated in the said
certificate that it is not for assessing compensation under sec.166 of
M.V.Act but it has been issued to claim special conveyance allowance and
employment on the premise, applicant has become physically
handicapped as he is suffering from Hemiplegia. Thus, percentage of his
disability is shown to the extent of 45% on 27.10.12. However, as he has
not examined any other doctor, I find it very difficult to rely on the above
said evidence of Ex.54/1. In addition, the applicant had deposed that due
to head injury, he is not in a position to maintain balance and thereby to
perform his duty as the mechanic in repairing 4wheeler vehicles by
running his City Auto Work Garage.
-- 8 of 13 --
9 MACP 666/03
20] I had privilege to observe the physic and conduct of
applicant,when he deposed through witness box. He has been extensively
cross examined by the Adv.of opponent no.3. During the course of
evidence, the applicant found to have not suffered from Hemiplegia, nor
he was required to take chair or tool for giving answers in cross
examination comfortably. This circumstance has belied the evidence about
he having had suffered 45% permanent disability on account of head
injury and thereby suffering from Hemiplegia. Indeed, he has not
produced legal evidence on record. Therefore, I have to again consider
the xerox true copies of all the injury reports and medical case papers.
From the said documentary evidence, it appears that initially, applicant
had suffered from Hemiplegia to certain extent. However, due to
extensive treatment taken from Ruby and KEM hospital,Pune, he could
overcome the ailment to certain extent. Hence, after taking into stock the
entire evidence, it is revealed that disability on the above said ground is
not more than 25%.
21] Now, I have to deal with the aspect of age of the applicant on
the date of accident. From his evidence, it is clear that he was hardly 26
years old on the date of accident. Hence, now I have to ascertain his
income. The applicant has not produced any documentary evidence to
prove his income. Therefore, I find it desirable to take into account
notional income and future prospect, considering the City Auto Works
Motor Garage run by the applicant under the guidance of his father
Hence, his income including the future prospect cannot be more than
Rs.5000/p.m. Hence,multiplier of 18 is squarely attracted. In such
manner, on account of 25% permanent disability, amount of loss of
-- 9 of 13 --
10 MACP 666/03
income comes to Rs.2,70,000/. Hence, applicant found entitled thereto.
22] So far as hospital and medical expenditure incurred to the
applicant, he has deposed that it was more than Rs.3,00,000/. However,
he has not placed any receipt thereto on record, for the reasons best
known to him. He has also deposed that he has taken treatment from
Ruby Hall and KEM hospital nearly about one year and in the initial
period, he was unconscious months together. Hence considering this piece
of evidence, award of Rs.1,00,000/ on this head would meet the ends of
justice.
23] So far as estimated 25% permanent disability suffered to the
applicant, if compensation at the rate of Rs.1000/per percent of disability
is allowed, it would meet the ends of justice. Hence on this head,
applicant is justified to claim Rs.25000/.
24] It is point of record that applicant had suffered mental agony
and discomfort on account of injuries sustained in the accident out of the
use of above said Maruti van plied by opponent no.1 belonging to
opponent no.2 .Moreover,it is clear that he was hospitalised about one
year and thereafter, has been compelled in taking treatment as outdoor
patient. Hence, award of Rs.25000/ on this head would meet the ends of
justice. The applicant has claimed amount on the head of conveyance and
special diet. Hence, considering the period of treatment as indoor and
outdoor patient, award of Rs.10000/on this head can suffice the purpose.
In such manner, the applicant is justified in claiming compensation of
Rs.4,30,000/.
-- 10 of 13 --
11 MACP 666/03
25] Hence,now, I have to find out whether the opponent no.3 is
liable to pay said compensation to the applicant with interest. In this
regard, no insurance copy or insurance cover note has been placed on
record by the applicant. The opponent no.3 came with the defence that
the offending vehicle Maruti Van No.MH12W6105 was not insured with
it on the date of accident. Therefore, when the applicant has failed to
discharge duty to prove that said vehicle was duly insured with opponent
no.3 on the date of accident, no liability can be saddled on the said
opponent in paying any amount of compensation to the applicant. In such
manner, opponent no.3 has succeeded in proving that the above said
vehicle was not insured with it on the date of accident. Consequently,
opponent no.1 having possessory title and opponent no.2 being owner of
the said vehicle,as eloquent from the evidence of said applicant, they both
found jointly and severally liable to pay the above said amount of
compensation to the applicant.
26] The applicant has claimed 12% interest on the above amount
of compensation. Therefore, I have to consider whether on 4.6.98,when
the incident did take place, interest on fixed deposits as per the norms of
Reserve Bank of India was 12% and hence, applicant had justification to
claim interest at the said rate. No doubt, in the said year, interest on the
fixed deposits was not less than 9%. However, in the case at hand, it is
revealed that the applicant willfully avoided to prosecute the claim
vigilantly and expeditiously. It is crystal clear that written statement of
Ex.32 followed on 5.11.11. Issues came tobe framed on 4.2.12, and then
the applicant had adduced evidence. It is also fact that for want of
permanent disability certificate, applicant has not prosecuted the
application of Ex.5 filed u/s 140 of Motor Vehicles Act. Therefore, he has
-- 11 of 13 --
12 MACP 666/03
not paid court fee on the amount of compensation of Rs.8,00,000/
claimed under the application. Even he has not produced on record
insurance policy and original case papers of his medical treatment along
with disability certificate. Hence, due to such dilatory tactics, the claim
remained idle years together. Hence, on this plight, award of interest as
per the norms of Reserve Bank of India would amount to bonanza to the
applicant,who has willfully delayed the hearing of the case years together.
Hence, under such circumstances, I find it desirable to allow 6% interest
p.a.from the date of application which followed on 3.5.2003. Therefore, I
have answered the issues accordingly and proceed to pass the following
order:
:Order:
1] The application is partly allowed.
2] The opponent nos.1 and 2 do jointly and severally pay the
amount of Rs.4,30,000/ including the N.F.L. amount, to the applicant
towards compensation with 6% p.a. interest from the date of application
i.e.from 3.5.2003 till the payment of the said amount, in the following
manner:
The above amount of compensation be paid to the applicant
by two account payee cheques in equal, out of which, 50% amount of
compensation be kept in fixed deposit in any nationalised bank for the
period of five years and to furnish fixed deposit receipt before this
Tribunal within 15 days from receipt of the amount.
-- 12 of 13 --
13 MACP 666/03
3] The claim is hereby dismissed against opponent no.3.
4] The applicant shall pay requisite court fee on claimed amount
of Rs.8,00,000/ on or before 30.4.2013 failing which, the claim will
automatically stand dismissed due to non compliance of the above order.
5] If the court fee is paid within the stipulated time, award be
drawn accordingly.
Date: 22.04.2013 (V.K.Shewale)
Addl.Member, M.A.C.T.Pune.
"I affirm that the contents of this P.D.F. file Judgment are same word for
word as per original Judgment."
Name of Steno : Sau.S.V.Sane.
Name of Court : Shri V.K.Shewale,Addl.Member,MACT,
Pune.(District Judge5,Pune.)
Date : 08.05.2013
Judgment signed by : 22.04.2013
Presiding Officer on
Judgment uploaded on : 08.05.2013
-- 13 of 13 --