Delhi District Court
Sh. Rajeev Kumar vs Sh. Vivek Kumar on 14 December, 2017
IN THE COURT OF SH. RAJEEV BANSAL:
ADDITIONAL DISTRICT & SESSIONS JUDGE
PO MACT(SE-01), SAKET COURTS: NEW DELHI
Suit No.4933/16
FIR No. 210/16
PS : Sarita Vihar
U/s 279/338 IPC
Compensation case regarding injury to Rajeev Kumar,
a 52 years old, salaried person
Sh. Rajeev Kumar
S/o Sh. Triveni Prasad Singh
R/o. E-29, Harkesh Nagar,
Phase-II, Okhla Industrial Estate,
Delhi
...Claimant
Versus
1. Sh. Vivek Kumar
S/o Sh. Kundan Kumar
R/o. A-280, Alla Mohalla,
Tehkhand Village,
Okhla Phase-I,
New Delhi
.....(Driver cum owner/respondent no.1)
2. M/s. ICICI Lombard Motor Insurance Co. Ltd. 315, IIIrd Floor, Aggarwal City Mall, Wazirpur New Delhi.
.... (insurer/respondent no.2)
...Respondents
Date of filing of DAR : 25.10.2016
Reserved on : 22.11.2017
Date of Decision : 14.12.2017
Suit No.4933/16 Sh. Rajeev Kumar Vs. Sh. Vivek Kumar & Ors. Page No. 1/9
AWARD
1. DAR/Claim petitions where no serious question of law or fact are involved can be disposed off by short orders. Negligence on the part of respondent no.1 is to be proved on the basis of preponderance of probability, quantum of compensation is to be determined and in case the insurance company has raised any defence the liability to pay compensation is to be fixed.
2. It is stated in statement before the police that on 01.05.2016 at about 07.50 p.m., petitioner was going from his residence to his office at Okhala, New Delhi. It is stated that when he reached near red light Okhla Tank at Mathura Road, New Delhi, one motorcycle bearing No. DL-3SCU-9607 came from front side which was being driven by its driver in a rash and negligent manner and hit him and due to this impact, he fell down on the road, which resulted in injuries to him.
3. According to MLC the injured has pain, swelling over scalp approx 4X4cm and swelling over right leg approx 4X4 cm. X-rays CXR, PXR, RT Shoulder, RT leg with ankle were conducted.
4. Police after investigation filed charge sheet against respondent no.1 under section 279/338 of IPC.
5. In response to the DAR, driver cum owner appeared and filed his written statement. He stated that the DAR filed on behalf of petitioner is false, frivolous and baseless.
6. Insurance company/respondent no.2 in its reply stated Suit No.4933/16 Sh. Rajeev Kumar Vs. Sh. Vivek Kumar & Ors. Page No. 2/9 that vehicle was insured in the name of Vivek Kumar on the date of accident.
7. The following issues were framed:-
1. Whether injured Rajeev Kumar suffered injuries in a road accident which took place on 01.05.2016 due to rash and negligent driving of motorcycle bearing registration No. DL-3SCU-9607 ? OPP
2. Whether the claimant is entitled to any compensation, if so, to what extent and from whom? OPP
3. Relief.
8. The claimant filed his evidence by way of affidavit reiterating similar allegations against respondent no.1 as were made by him before the police at the time of registration of FIR. He proved his aadhar card as Ex.PW1/1, MLC dated 01.05.2016 as Ex. PW1/2, discharge summary of Trauma centre as Ex.PW1/3, discharge summary of ESI Hospital as Ex. PW1/4 , his salary slip and employment certificate as Ex. PW1/5.
9. In cross examination by counsel for insurance company, he stated that he does not know who was driving the said motorcycle at the time of accident and that he had seen the driver of the motorcycle but he can not recognize him now. He denied the suggestion that the accident took place due to his own negligence.
10. No other witness was examined on behalf of claimant and no RE was led on behalf of respondents.
11. Arguments were addressed by learned counsel for the Suit No.4933/16 Sh. Rajeev Kumar Vs. Sh. Vivek Kumar & Ors. Page No. 3/9 claimants and learned counsel for the respondents.
12. On the basis of pleadings of the parties, evidence adduced and arguments addressed, issuewise findings are as under:-
Issue No.1
13. Negligence in a compensation case before claims tribunal is to be proved by preponderance of probability and the test is not as strict as in a criminal case.
14. The Police after investigation has filed charge sheet against respondent no.1 under section 279/338 of IPC and the IO has filed Detailed Accident Report before this Tribunal. Whereas petitioner proved his version by entering the witness box, driver of the offending vehicle did not enter the witness box to rebut the evidence of the petitioner. As such petitioner's testimony has gone unchallanged.
15. The above is sufficient to conclude that preponderance of probability is made out showing negligence of respondent no.1 in causing the accident.
16. Now, the compensation would be assessed on the basis of evidence adduced on record by the claimant. It was argued by the insurance company that the injured has not proved his salary or employment by examining the employer. As such it has been stated that compensation, if any, may be decided at the rates of Minimum Wages.
Suit No.4933/16 Sh. Rajeev Kumar Vs. Sh. Vivek Kumar & Ors. Page No. 4/917. The proceedings before this Tribunal are in the nature of enquiry and the Tribunal is not required to carry out full fledged trial involving the requirements of proof of documents by law of evidence. The injured proved the salary slip issued by Security & Intelligence Services (India) Ltd being Ex. PW1/5, according to which the salary was Rs.14,683/-. Certificate dated 04.01.2017 issued by Security & Intelligence Services Ltd shows that the injured was working with this organization. It is also stated that injured remained on leave because of his accident from 01.05.2016 to 22.09.2016. Although, the employer has not been examined by the injured, nevertheless this court finds no reason to disbelieve this certificate and salary slip and conclude that the injured was not employed with M/s. Security and Intelligence Services (India) Ltd. and did not earn Rs.14,683/- salary from this employment. As such his income is taken as Rs.14,683/- per month and for absence of 4 months and 22 days from service, he is entitled to Rs.73,415/- towards loss of salary for 5 months.
Compensation
Sl. Pecuniary loss : - Quantum
no.
1. (I) Expenditure on treatment : There is no Rs.5,000/-
medical bills. However, after accident injured was taken to AIIMS hospital and he further took his treatment in Government hospital. By guess work, compensation can be awarded under this head.
(ii) Expenditure on Conveyance : The Rs.10,000/- claimant has not filed any bill for conveyance. The nature of injuries are grievous. By guess work, compensation can be awarded for Suit No.4933/16 Sh. Rajeev Kumar Vs. Sh. Vivek Kumar & Ors. Page No. 5/9 conveyance.
(iii) Expenditure on special diet : There is no Rs.10,000/- prescription for special diet. The nature of injuries are grievous. By guess work, compensation can be awarded for special diet.
(iv) Cost of nursing / attendant : Even in the Rs.10,000/- absence of documentary proof, compensation for attendant's charges is to be given even if gratuitous services were rendered by family members.
(v) Loss of income : Rs. 73,415/- as per para Rs.73,415/-. no.17.
(vi) Cost of artificial limb (if applicable) : Not Applicable
(vii) Any other loss / expenditure : Not applicable
2. Non-Pecuniary Loss :
(I) Compensation of mental and physical Rs.25,000/-
shock : As the claimant has suffered grievous injury', he would have undergone mental and physical shock.
(ii) Pain and suffering : Compensation for Rs.25,000/- pain and suffering is to be awarded keeping in mind the nature of injuries.
(iii) Loss of amenities of life : There is no Nil. permanent disability.
(iv) Disfiguration : There is no disfiguration. Nil.
(v) Loss of marriage prospects : Nil
(vi) Loss of earnings, inconvenience, Already hardships, disappointment, frustration, covered mental stress, dejectment and unhappiness above in future life etc.
3. Disability resulting in loss of earning capacity (I) Percentage of disability assessed and Nil. nature of disability as permanent or temporary: There is no permanent disability.
Suit No.4933/16 Sh. Rajeev Kumar Vs. Sh. Vivek Kumar & Ors. Page No. 6/9(ii) Loss of amenities or loss of expectation Nil. of life span on account of disability : There is no permanent disability.
(iii) Percentage of loss of earning capacity in Nil. relation to disability:There is no permanent disability.
(iv) Loss of future Income : There is no Nil permanent disability.
Total Compensation Rs.1,58,415/-
rounded off to Rs.1,58,500/-
Interest 9% p.a. from
the date of
filing of claim
DAR which is
25.10.2016
till
realization.
Liability :-
18. There is no statutory defence available with the insurance company, therefore, the compensation would be payable by respondent no.3 within 30 days with interest as noted above and in case of default, penal interest @ 12% per annum shall be payable for the period of delay. The bank shall be obliged to open a savings account in the name of petitioner.
19. The insurance company is directed to furnish TDS certificate, if any to the claimant and will also inform the claimant as well as the counsel for the claimant regarding deposit of compensation, in writing.
20. The insurance company will also give intimation of deposit of compensation to the Nazir of this court along with Suit No.4933/16 Sh. Rajeev Kumar Vs. Sh. Vivek Kumar & Ors. Page No. 7/9 calculations of upto date interest.
21. Since, the compensation amount is not huge, the same shall be released to the injured immediately without pre condition of FDRs.
22. The particulars of Form IV of the Modified Claims Tribunal Agreed Procedure are as under:-
1. Date of the accident 01.05.2016
2. Date of intimation of the accident by the Not mentioned.
Investigating Officer to the Claims Tribunal. (Clause 2)
3. Date of intimation of the accident by the Not available Investigation Officer to the Insurance Company. (Clause 2)
4. Date of filing of Report under Section 173 Not available.
Cr.P.C. before the Metropolitan Magistrate. (Clause 10)
5. Date of filing of Detailed Accident Information 25.10.2016 Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the Insurance 25.10.2016 Company. (Clause 11)
7. Date of service of DAR on the claimant(s). 25.10.2016 (Clause 11)
8. Whether DAR was complete in all respects? Yes (Clause 16)
9. If not, state deficiencies in the DAR Not applicable
10. Whether the police has verified the documents Yes filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency on Yes. the part of the Investigating Officer? If so, whether any action / direction warranted.
12. Date of appointment of the Designated Officer Not mentioned by the Insurance Company. (Clause19)
13. Name, address and contact number of the ---- Do---- Designated Officer of the Insurance Company. (Clause 19) Suit No.4933/16 Sh. Rajeev Kumar Vs. Sh. Vivek Kumar & Ors. Page No. 8/9
14. Whether the Designated Officer of the Yes Insurance Company submitted his report within 30 days of the DAR? (Clause 21)
15. Whether the Insurance Company admitted the Yes liability?, if so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law (Clause
92).
16. Whether, there was any delay or deficiency on No the part of the Designated Officer of the Insurance Company? If so, whether any action / direction warranted?
17. Date of response of the claimants to the offer Not applicable of the Insurance Company. (Clause 23)
18. Date of award. 14.12.2017
19. Whether the award was passed with the No. consent of the parties? (Clause 22)
20. Whether the claimants examined at the time of Yes. passing of the award to ascertain his / their financial condition? (Clause 26)
21. Whether the photographs, specimen Dispensed with as signatures, proof of residence and particulars compensation is not of bank account of the injured / legal hairs of to be retained in the deceased taken at the time of passing of FDRs. the award? (Clause 96)
22. Mode of disbursement of the award amount to By release of the claimant (Clause 28) next date of compensation compliance of the award. (Clause 30) immediately. The date of compliance is fixed.
23. Copy of this award be given to the parties free of cost. The copy of award be sent to the DLSA and Ld. Metropolitan Magistrate.
24. List on 14.03.2018 for compliance.
Announced in open Court (RAJEEV BANSAL) on 14th December, 2017. PO-MACT-01 (South-East) Saket Court/ New Delhi Suit No.4933/16 Sh. Rajeev Kumar Vs. Sh. Vivek Kumar & Ors. Page No. 9/9