Delhi District Court
Vineet vs Pardeep Kumar on 7 May, 2024
IN THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH WEST, ROHINI COURTS, DELHI
PRESIDED BY SH. SHIVAJI ANAND,
==============================================
UID No. / CNR No. DLNW01-0125902022 MACT CASE No. 1151/2022 FIR No. 28/21, PS Kanjhawla In the matter of :
1. Vineet, S/o Sh. Satyanarayan R/o Khasra No. 1338, Community Centre, VPO Punjab Khor, Delhi -110081 .....Petitioner Vs.
1. Pardeep Kumar S/o Sh. Randhir Singh R/o H No. 256, UP Lohar Gedi District, Jhajjar, (HR) ..Driver/R1 2 Satish S/o Sh .Jai Narayan, R/o 1317, Sector -6, Bahadurgarh District, Jhajjar (HR) ..Owner/R2
3. Future General Insurance Company Office at : IInd Floor, Sector 4-5, Sector 8C, Madhya Marg, CHandigarh Also at Kailash Buliding, 3rd Floor, 303-310, 26, KG Marg, CP Delhi ...Insurance Company/R3 Date of institution of the DAR : 24.12.2022 Date of final Arguments : 06.05.2024 Date of Decision : 07.05.2024 Appearance (s) : Sh. R K Jain, Ld. Counsel for petitioner.
None for R1 & R2.
MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 1 of 17 Sh. Shailender Rai, Ld. counsel for Insurance Company J U D G M E NT /AWAR D
1. Vide this judgment/award, I shall dispose off the Detailed Accident Report (in short, the DAR) filed by IO HC Vikram Singh in FIR No. 28/2021, PS Kanjhawla, Delhi pertaining to injuries sustained by one Vineet S/o Sh. Satya Narayan (in short, the injured) in road accident occurred on 19.01.2021.
FACTUAL POSITION AND PLEADINGS
2. The brief facts relevant for disposal of the present DAR are that on 18.01.2021, at about 07.10 pm, the petitioner, being pillion rider Vineet were proceeding from Qutub Garh towards Kanjhawla Road and when they reached near Cut, in front of Bhan Farm, Village Tatesar, Delhi, then a tourist bus bearing no. HR 63/E-8720 which was going parallel to them, on left side in a zig zag manner driven by driver Pardeep Kumar and without blowing any horn suddenly took U Turn on the right side of the road and hit the motorcycle of petitioner and he and his friend fell down on the road and sustained greious injruies all over their bodies. Thereafter, the petitioner was taken to Shree Aggarsain International Hospital Delhi for treatment where his MLC was prepared.
3. An FIR No. 28/2021, PS Kanjhawla, Delhi was registered U/s 279/338 IPC.
4. Respondent no. 1 & 2 has filed their WS stating that the MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 2 of 17 offending vehicle was duly insured with Insurance Company and hence, Insurance Company is liable to pay the compensation.
5. Respondent no. 3 has filed his written statement wherein they have admitted that vehicle was insured with the Insurance Company at the time of accident. However, they have taken a defence that the injured was just 17 years old i.e minor at the time of accident. It is further submitted that the injured hit the offending vehicle from behind, therefore the accident was caused due to his own negligence.
ISSUES:
6. Following issues were framed by this Tribunal on 01.05.2023:
1. Whether petitioner Vineet, S/o Sh. Satya Naryan suffered injuries in road traffic accident on 19.01.2021 at about
07.10 PM, at Punjab Khar to Kanjhawla Road, Opposite Bhan Farm, VPO Tatesar, Delhi due to rash and negligent driving of offending vehicle bearing no. HR-63E-8720 which was being driven by driver Pardeep Kumar S/o Sh. Randhir Singh on the said date, time and place ? OPP.
2. Whether the petitioner/injured is entitled for compensation, if so, to what amount and from whom? OPP.
3. Relief.
PETITIONER'S EVIDENCE
7. In order to prove his case, petitioner examined himself as PW-1 and tendered his evidence by way of affidavit Ex. PW 1/A and relied upon the documents i.e copy of original discharge summary, OPD Cards, X Ray Reports and CT Scan Reports(running into 21 sheets, colly Ex. PW1/1, medical bills Ex. PW1/2, original medical MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 3 of 17 bills and receipts running into 24 sheets Ex. PW1/3, copy of future estimate given by treating doctor Ex. PW1/4, photgraphs of Dental injuries running into 3 sheets Ex. PW1/5, Medical fitness certificate Ex. PW1/6, copies of matriculation certificate and senior school certificate examination Ex. PW1/7, copy of Adhar Card Ex. PW1/8 and DAR Ex. PW1/9, he was cross-examined on behalf of respondents at length.
8. In order to prove his case, petitioner examined PW2 Mohit Kumar, Record Incharge of Payment in respect of Vineet. Copy of MLC of Vineet is Ex. PW2/1, attested copies of case treatment record of Vineet(running into 70 sheets) as Ex. PW2/2, attested copies of payment record of Vineet(running into 3 sheets)(colly) is Ex. PW2/3. He proved the medical documents provided by the petitioner, he was cross-examined on behalf of respondents at length.
RESPONDENT'S EVIDENCE:
9. Respondent No. 1 i.e. Pardeep has examined one witness i.e RW1 Pradeep Kumar wherein his affidavit is Ex. R1W1/A. He was cross examined on behalf of counsel for the petitioner.
ARGUMENTS & FINDINGS:
10. I have heard ld. Counsel for the petitioner and have gone through the testimony of the witnesses, the pleadings and the documents. My issue wise findings in the case are as under :-
ISSUE NO.1 MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 4 of 17
1. Whether petitioner Vineet S/o Sh. Satya Narayan suffered injuries in road traffic accident on 19.01.2021 at about 07.10 PM, at Punjab Khar to Kanjhawla Road, Opposite Bhan Farm, VPO Tatesar, Delhi due to rash and negligent driving of offending vehicle bearing no. HR-63E-8720 which was being driven by driver Pardeep Kumar S/o Sh. Randhir Singh on the said date, time and place ? OPP.
11. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case. Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303.
12. PW-1/petitioner has proved the documents i.e evidence by way of affidavit Ex. PW 1/A and lead her evidence in detail to prove his case, he was cross-examined on behalf of respondents at length.
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13. The testimony of petitioner against the respondent is corroborated by the documentary evidence that respondent was present at the spot and driving the offending vehicle at the time of accident. Therefore, the case does not warrant any other best evidence. Keeping in view the facts & evidence produced by the petitioner, it has proved on record that the said accident has taken place due to the rash and negligent driving of the offending vehicle being driven by respondent, as a result of which, the petitioner sustained injuries.
14. The FIR has been lodged against the respondent and he has faced criminal charges of injuries by rash and negligent driving in the said accident. Besides the above, Respondent himself was the best witness who could have stepped into the witness box to challenge the depositions being made by PW-1 regarding the above accident and its manner etc., and he did so.
15. Vide statement of respondent i.e RW1, he has admitted his presence at the time of accident as he deposed that he was driving the vehicle at that time at the place of incident. The respondent has further submitted in his testimony that the petitioners were driving the vehicle in zig zag manner. Driver submits that petitioner barged his motorcycle on stationary vehicle, however, there is no proof regarding this also. There is no evidence on record to show that the petitioner was driving the said vehicle zig zag manner. Therefore, not much value can be given to the testimony of RW1 regarding the negligence of the petitioners to the abovesaid suggestion.
MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 6 of 17
16. In view of the aforesaid discussion and the evidence which has come on record, it is held that the rashness and negligence on the part of driver of the offending vehicle, which is clearly visible and as such, was responsible not only for this accident, but also for everything that followed thereafter. Accordingly, issue no.1 is decided in favour of the petitioner and against the respondent.
ISSUE NO. 22. Whether the petitioner/injured is entitled for compensation, if so, to what amount and from whom? OPP.
17. As the issue no. 1 has been proved in affirmative and in favour of the petitioner, the petitioner has become entitled to be compensated for the injuries suffered in the above accident, but the computation of compensation and liability to pay the same are required to be decided.
18. In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. Reference in this regard can be made to the judgment in the case of Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343, wherein Hon'ble Supreme Court of India has laid down the general principals with regard to compensation in injury cases.
"4. The provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 7 of 17 of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467).
5. The heads under which compensation is awarded in personal injury cases are the following :
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
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(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item
(i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 9 of 17 assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case. Assessment of future loss of earnings due to permanent disability "
19. In light of the above legal propositions, the amount of compensation which could be considered to be 'just' in the opinion of this tribunal shall be as under:-
(i) Medical or Treatment Expenses
20. PW-1 deposed that he incurred Rs. 47,978/- on medical treatment of injured. He has placed on record all the medical bills incurred by him. Keeping in view the nature of injury i.e. grevious injury, the petitioner is granted a sum of Rs. 47,978/ under this head.
(ii) Pain and Suffering
21. As per the MLC and medical documents, injured suffered grievous injuries in the road traffic accident on 18.01.2021. As per the medical bills and treatment placed on record, petitioner remained has remained admitted in the Shri Aggarsain International Hospital Delhi from 18.01.2021 to 22.01.2021 i.e for a period of about 5 days. It is not possible to quantify the compensation admissible to injured for the shock, pain and sufferings etc. which he actually suffered because of the above injuries, but as stated above, an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by injured and duration of the treatment of him MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 10 of 17 etc., an amount of Rs. 25,000/- is being awarded to her towards pain and sufferings during the said period of her treatment and immobility. Thus, he is awarded a total amount of Rs. 25,000/- under this head.
(iii) Conveyance, attendant charges and Special Diet
22. Petitioner has suffered loss of income and incurred money on injury, medical treatment and special diet. However, he failed to place on record any corroborative material in this regard. In view of the nature of injuries sustained by him, he has visited hospital multiple times during the 34 months visit to hospital, hence, reasonably a sum of Rs. 25,000/ is awarded to the petitioner cumulatively under these heads.
(iii) Loss of Actual Earnings
23. Injured deposed that at the time of accident he was a student of 12th class, therefore, as per relevant notification, minimum wages of matriculate as on 18.01.2021 would be considered which is 18,797/- per month. Keeping in view the nature of injuries sustained by the petitioner as well as his prolonged medical treatment, it could be safely assumed that the petitioner would not have been able to resume his work/ vocation for a period of 03 months at least. As such, the petitioner is held entitled to a sum of Rs. 56,391/- (Rs. 18,797 x 3). The said sum is awarded to the petitioner under this head.
24.Thus, the total compensation is assessed as under : -
MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 11 of 17 S. No. Head Amount 1 Medical Expenses Rs. 47,978/ 2 Pain and Suffering 25,000/-
3 Loss of actual earning Rs. 56,391/- 4 Conveyance/ Attendant charges and special 25,000/-
diet Total 1,54,369/-
25. The Hon'ble Supreme Court has further been pleased to reiterate the aforesaid legal position in case reported as, Shamanna & Anr. v. The Divisional Manager, The Oriental Insurance Company Limited & Ors., Civil Appeal No.8144/2018. Therefore, in view of the above, respondent No.3/insurance company is liable to pay compensation/Award amount to the claimants/petitioners. Issue No.2 is decided accordingly.
26. That, this tribunal is of the considered view that one of the petitioner namely Akshey was a minor at the time of the accident, therefore, lapse on the part of injured is also considered and 10 % of the award amount be deducted due to the said reason as the petitioner was minor at the time of accident.
Issue No.3/Relief
27. Although the petitioner is entitled to a sum of 1,54,369/- but 10 % of the award amount be deducted due to lapse on MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 12 of 17 the part of the petitioner, therefore Rs. 1,38,933/- (Rupees One Lakh Thirty Eight Thousand Nine Hundred Thirty Three only) along with interest @ 9% per annum from the date of filing of the DAR i.e. 24.12.2022 till actual payment. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
LIABILITY
28.As already stated above, R-1 being the driver and R-2 being owner of the offending vehicle, and also being vicariously liable for the acts of R-1, are jointly and severally liable to pay the awarded amount of compensation to petitioner. However, since the offending vehicle was insured with R-3 at the time of accident.
29.However, R-3 is liable to get indemnified by R-1 and R-2 in respect of above liability. As such R-3 is directed to deposit the above award amount within 30 days from the date of this Award by way of NEFT or RTGS mode in the account of this Tribunal maintained with SBI, Rohini Courts, in terms of the format for remittance of compensation as provided in Divisional Manager Vs. Rajesh, 2016 SCC Online Mad. 1913 (and reiterated by Hon'ble Supreme Court in the orders dated 16.03.2021 and 16.11.2021 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 13 of 17 India & Ors) along with interest @ 9% per annum.
30.ISSUE No.3/ RELIEF:
31.Thus, in view of the aforesaid discussion, this tribunal awards compensation of Rs. 1,38,933/- (Rupees One Lakh Thirty Eight Thousand Nine Hundred Thirty Three only) alongwith interest @ 9% per annum w.e.f the date of filing of the DAR/petition, i.e. 24.12.2022 till the date of actual payment.
APPORTIONMENT
32.The statement of Petitioner in terms of Clause 29 MCTAP was recorded on 18.03.2024, having regard to the facts and circumstances of the case, it is hereby ordered that out of total compensation amount, the amount is disbursed as follows:
(a) Petitioner/injured Vineet shall be entitled to whole amount of Rs. 1,38,933/- (Rupees One Lakh Thirty Eight Thousand Nine Hundred Thirty Three only) alongwith proportionate interest, which shall be released immediately to the petitioner in his MACT bank account no. 42701256954;
33. The entire compensation amount alongwith interest be kept in FDR(s) for the period till one of the minor children attains the age of majority.
34. The following conditions are to be adhered to by SBI, Rohini Courts, Delhi with respect to the fixed deposits:-
35.(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 14 of 17 claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
36.(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
37.(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
38.(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant (s) near the place of their residence.
39.(e) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
40.(f) The concerned bank shall not be issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card (s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
41.(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
42. (h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.
43. Copy of this Award alongwith one photograph each, specimen signatures, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 15 of 17 compliance.
44. The Bank(s) shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the petitioner(s) i.e. the savings bank account(s) of the petitioner(s) shall be an individual savings bank account(s) and not a joint account(s). The original fixed deposit shall be retained by the SBI, Branch Rohini Courts, Delhi in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by the bank to the petitioner(s). The maturity amounts of the FDR(s) be credit by Electronic Clearing System (ECS) in the savings bank account of the petitioner(s) near the place of their residence. No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of this Tribunal.
45.A digital copy of this award be provided to the parties. Ahlmad is directed to send a copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Central Motor Vehicles (fifth Amendment) Rules, 2022 [(Directions at serial nos. 39, 40 of Procedure for Investigation of Motor Vehicle Accidents (under Rule 150A)]. Further Nazir is directed to maintain the record in Form XVIII in view of Central Motor Vehicles (fifth Amendment) Rules, 2022 [(Directions at serial no. 41 of Procedure for Investigation of Motor Vehicle Accidents (under Rule 150A).
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46. Ahlmad is also directed to e-mail an authenticated copy of the award to the insurer as directed by the Hon'ble Supreme Court of India in WP (Civil) No. 534/2020 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India & Ors. on 16.03.2021. Ahlmad shall also e-mail an authenticated copy of the award to Branch Manager, SBI, Rohini Courts for information.
47. Ahlmad is further directed to comply with the directions passed by the Hon'ble High Court of Delhi in MAC APP No. 10/2021 titled as New India Assurance Company Ltd. Vs. Sangeeta Vaid & Ors., date of decision : 06.01.2021 regarding digitisation of the records.
48. Form V and IVB in terms of MCTAP are annexed herewith as Annexure-A.
49. A separate file be prepared for compliance report by the Nazir and put up the same on 07.06.2024.
50. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT ON 7th DAY OF MAY, 2024 (SHIVAJI ANAND) ADJ-1+MACT, NORTH WEST, ROHINI COURTS, DELHI MACT Case No. 1151/2022 (FIR no. 28/2021) Vineet Vs. Pardeep and ors Page no. 17 of 17