Delhi District Court
Pratap Sardana vs . Rakesh Kumar & Ors. on 7 March, 2017
IN THE COURT OF MS. MADHU JAIN:
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL: SOUTH
EAST DISTRICT/ SAKET COURTS: NEW DELHI
Suit No. 76/2016
FIR No. 381/2015
MACT No. 4546/2016 - PS OIA
Pratap Sardana Vs. Rakesh Kumar & Ors.
Unique Identification number: 02406C0155512016
Injury Case
Sh. Pratap Sardana S/o Sh. Prem Kumar Sardana
R/o 29A, Sec2B, Sadna Vashile, Ghaziabad.
........................... Petitioner/Claimant
Versus
1. Sh. Rakesh Kumar S/o Sh. Balak Ram (driver)
R/o E13B, Ashok Sharma Ka Makaan, Shiv Ram
Parak Nagloi, Delhi.
Also at: H. No. 237, Vill. Lalpura Chandri, Maholi, Sitapur, U. P.
2. Sh. Jasneet Kaur, S/o Sh. Jasbir Singh (owner)
R/o G547, Rishi Nagar, Rani Bagh, Delhi
3. The New India Assurance Company Limited (Insurer)
Add Norang House, 12th, K. G. Marg, CP New Delhi
.....................Respondents
Initial date of Institution : 22.03.2016 Date of reserving the judgment : 28.02.2017 Date of pronouncement : 07.03.2017 Judgment:
Present claim proceedings initiated on the basis of Detailed Accident Report under Section 166 (4) of Motor Vehicle Act filed by the police on 22.03.2016.
MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 1 of 15)
1. Brief facts of the case are that on 15.05.2015 at about 06.30 injured was crossing the road in front of company no. 64, main road, Okhla Industrial Estate, PhIII, then all of sudden a car bearing no. DL1YD9780 which was being driven by respondent no. 1/driver namely Rakesh Kumar in a very high speed, rashly and negligently came and hit the injured. Due to which injured fell down on the road and sustained injuries in his head, left eye, left hand and other injuries all over his body. After that injured was immediately removed to Moolchand Hospital, New Delhi where his MLC was prepared by the concerned doctors.
2. FIR number 381/2015 under Section 279/337 IPC, PS Okhla Industrial Area was registered. During investigation police prepared the site plan of the place of occurrence, seized the offending vehicle, conducted mechanical inspection of the offending vehicle and arrested respondent no.1 driver. On completion of investigation found respondent no. 1 driver/accused of rash and negligent driving, hence chargesheeted him for the commission of offence under Sections 279/338 of Indian Penal Code.
3. During proceedings, written statement filed on behalf of respondent no. 1 & 2 and it is stated that the accident was caused due to the negligence of injured himself and the driver is not responsible for the alleged accident. It is further stated that driver was driving the vehicle with due care and he was possessing a valid driving licence no. 83579/NW/PROF10 valid up to 10.03.2016 at the time of accident. It is further stated that the vehicle was fully insured with the New India Assurance Co. Ltd vide policy no. 31260031140101976933 issued on 28.09.2014 and if any liability is fastened on the driver & owner of the vehicle, the insurer of the vehicle shall indemnify the same. It is further stated that at the time of accident injured was talking on MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 2 of 15) mobile and also crossing the road, suddenly he himself came in front of the said vehicle.
4. During proceedings, written statement filed by insurance company and it is stated that the alleged offending vehicle was being driven by its driver in contravention with M. V. Act and he was not holding a valid and effective driving licence at the time of accident. As per driving licence verification report produced by the IO issued by District Transport Authority, Wokha, Nagaland, the record of DL bearing no. 83579/ND/Prof/10 issued in the name of Rakesh Kumar was not found in the authority record. It is further stated that at the time of accident, the insured entrusted the alleged vehicle bearing no. DL1YD9780 to a person voluntarily, willingly and illegally who was not possessing valid and effective licence and said vehicle was being used by the insured in violation of Sec. 142(2)(a)(ii) and this fact was well in his knowledge that said person/driver was not holding a valid and effective driving licence to drive the alleged vehicle. Consequently, the owner/insured himself is solely liable to pay any compensation to the injured and insurance company is not liable to indemnify the insured in the present case.
5. From pleadings, following issues were framed vide order dated 14.07.2016 which are as under: (1.) Whether the injured received grievous injuries in the accident which took place on 15.05.2015 at about 06.30 PM involving offending vehicle i.e bearing number DL1YD9780 due to rash and negligent driving of respondent no. 1/driver, owned by respondent no. 2/owner insured by respondent no. 3(insurance company)? OPP (2) To what amount of compensation the petitioner is entitled to claim and from whom?
MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 3 of 15) (3) Relief.
6. During evidence, petitioner Sh. Pratap Sardana examined himself as PW1 on 17.01.2017 and relied upon certain documents i.e copy of his driving licence is Ex. PW1/1, copy of ICard issued by his employer is Ex. PW1/2, salary slip is Ex. PW1/3, leave certificate is Ex. PW1/4, MLC is Ex. PW1/5, discharge summary is Ex. PW1/6, OPD cards are collectively Ex. PW1/7, medical bills are collectively Ex. PW1/8 and DAR is collectively Ex. PW1/9.
7. In cross examination, PW1 Sh. Pratap Sardana stated that he is a post graduate and income tax assesses. He further stated that at the time of accident he was working as Sr. Manager, Sales with G Next Media and was earning Rs. 75,000/ per month approximately. He further stated that it is correct that he has not filed any document/prescription to show that he is still under treatment. He further stated that he has got reimbursement of Rs. 4 lac from Bajaj Allianz General Insurance Company. It is further stated that it is correct that he has not filed Form 16 issued by his employer and also he has not filed his ITRs. He voluntarily stated that he can produce the same, if required. He further stated that the salary was paid by his employer through NEFT but he has not brought his bank account statement. He further stated that he received his full salary during his leave period i.e. from 16.05.2015 till 31.12.2015. It is further stated that it is correct that he has not suffered any loss of income due to leave taken by him. He further stated that it is correct that he has not filed any document which shows the total amount reimbursed from Bajaj Allianz Ins Co. He further stated that he was crossing the road at the time of accident. He further stated that it is correct that there was no red light or zebra crossing at the place of accident. He further stated that the police recorded his statement after 23 months of the accident.
MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 4 of 15)
8. During evidence petitioner has examined Sh. Lakush Soni, Vice president, Sales in GNext Media Pvt Ltd as PW2 on 23.02.2017. He has relied upon his authorization letter Ex. PW2/A, letter of increment dated 01.10.2016 Ex. PW2/B, salary breakup/CTC w.e.f. 01.04.2016 and the same is Ex. PW2/C, pay slip for the month of November 2016 and October 2015 and the same is Ex. PW2/D (colly), increment letter dated 24.07.2015 and the same is Ex. PW2/E. He further stated that injured Pratap Sardana was working with their company since 2009 as Manager Sales. His salary at the time of joining was approximately Rs. 45,000/ to Rs. 50,000/ per month. He further stated that he was one of the best performer in their company in sales department. He further stated that due to his good performance, he was getting increments, incentives and annual bonus from time to time till 2015 before the accident. He further stated that at the time of accident his gross salary was Rs. 83,504/ per month. Due to accident, there was no increment for injured in the year 2016 because his performance was poor because of non achievement of sales target and also because the increment did not happen, he was also not entitled for the quarterly incentives which were as per company's policies. He further stated that in total his increment, gratuity, leave encashment and quarterly incentives got effected due to non performance. The sales is always measured in terms of volume and any company can assess the same by just seeing the sales achievement of the candidate. He further stated that in case of Pratap Sardana, there could be chances that due to non performance he could be given notice to perform and prove himself else his case will be put in front of the management for consideration which will be beyond the control of sales head in terms of defending him.
9. In cross examination, PW2 stated that he has been working with the above said MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 5 of 15) company since June 2009 and the petitioner was working with the company since September 2009. He further stated that they maintained the attendance and salary record of all their employees. The said record is maintained in the employee file but he has not brought the employee file of the petitioner. He further stated that the injured Pratap Sardana joined their company again after the accident on 01.07.2016. He has brought the salary record of the injured for the month of November 2016 but he has not brought the present salary record of the petitioner. He further stated that in May, 2015, injured was getting Rs. 75,912/ per month and the said salary was increased in June 2015 to Rs. 83,504/ per month. He further stated that at present, the injured is getting the same salary. He stated that he has not brought any record which shows that colleagues of the petitioner have been promoted and are getting salary after regular increments. He has also not brought any record to show that the injured is getting quarterly incentives of Rs. 25,000/ on achievement of targets. He further stated that they have paid full salary to the petitioner during his leave. He further stated that he has not brought any record to show that it is the policy of their company to promote their employee only on the basis of performance. He further stated that he has not brought any record to show that in case of non performance of any of the employees, they have been asked to leave the job in their company. No such situation has ever happened. He further stated that they don't provide any other benefits except the salary to their employee. He further stated that Form16 is being issued to their employee by their company. There are about 250 employees in their company. The petitioner is working with the Okhla Branch. As per the policy of their company, they give yearly increment to their employee. No compensation has been given to the injured due to the accident. There was no group medical insurance or other policy issued in the favor of employee at the time of accident. He voluntarily stated that at present, they provide group medical insurance to their employees. He further stated that MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 6 of 15) the work profile of the petitioner has changed at present. Earlier, injured was working as Group Head/Sr. Manager (Sales), but his job responsibilities has been reduced by their company. He further stated that it is correct that he has not brought any document to show that the job responsibility of the petitioner has been changed by the company after the accident. He further stated that it is correct that he has not brought any document to show that performance of petitioner deteriorated after the accident.
10. During evidence, insurance company examined Sh. Sunil Kumar Verma, Assistant Manager as R3W1 on 09.02.2017. He has brought the attested copy of computer generated insurance policy bearing no. 31260031140101976933 issued in the name of Ms. Jasneet Kuar for the period from 28.09.2014 to 27.09.2015, the said policy is Ex. R3W1/1 (colly, 2 pages). He deposed that they have instructed their counsel to send notice U/o 12 Rule 8 CPC for production of driving licence, permit, fitness and original insurance policy of the vehicle bearing no. DL1YD9780. The office copy of the notice to the owner & driver are Ex. R3W1/2 & R3W1/3 respectively. The postal receipts are collectively Ex. R3W1/4. The owner as well as the driver neither produced the above stated documents and nor reply has been received. He further deposed that the DL bearing no. 83579NW/Prof/10 was verified by the IO, the report issued from DTO (District Transport Officer), Wokha, Nagaland is Ex. R3W1/5. As per the report, the record of DL bearing no. 83579NW/Prof/10 was not found. He further stated that as per the final report, the IO has given the report with respect to the driving licence that he has verified the details of the driving licenc and the record was not found in the authority. The vehicle was being used by the owner in violation of the M. V. Act. The driver was not holding a valid and effective driving licence at the time of accident. The owner has committed intentional breach of the terms & conditions of the policy, MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 7 of 15) therefore, insurance company is not liable to indemnify the insured/owner in the present case.
11. After hearing arguments and considering the material on record, my issue wise findings are as follows: Issue no. 1 (Negligence)
12. PW1 in his affidavits of evidence (Ex.PW1/A) categorically stated that he got injuries due to the rash and negligent driving of respondent no. 1. Nothing came in his cross examination to disbelieve his version. His version is duly corroborated by police investigation. Police during investigation also found respondent no.1 accused of rash and negligent driving, hence chargesheeted him for commission of offence under section 279/338 of Indian Penal Code.
13. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court (MP) in case titled as "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of Hon'ble High Court of Delhi in "National Insurance Company Limited Vs. Pushpa Rana" (2009 ACJ 287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 8 of 15) offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
14. In view of the above discussion, petitioner is able to prove that he suffered injuries due to rash and negligent driving of the respondent no. 1. Accordingly the issue no. 1 is decided in favour of the petitioner and against the respondents. Issue no 2 (Compensation) Medical Expenses :
15. PW1 petitioner in his affidavit of evidence stated that after accident he was removed to the Mool Chand Hospital whereupon MLC Ex. PW1/5 was prepared by the doctors of the said hospital and opined grievous injuries. PW1 in his affidavit has stated that he received injuries in his head, left eye, left hand and other injuries all over his body. He remained hospitalized from 15.05.2015 till 07.06.2015. he also stated that he was under treatment/observation of the doctors of the Mool Chand Hosital for about six months. Petitioner has also filed discharge summary Ex. PW1/6 and as per discharge summary Ex. PW1/6, injured was admitted on 15.05.2015 and discharged on 07.06.2015, the diagnosis is mentioned as "Head Injury (Left temporoparietal ICH with thin SDH)". Petitioner for claiming expenses relied upon medical bills (Ex. PW1/8 colly) for a total sum of Rs. 67,887/. Nothing material has come in his in cross examination to dispute the veracity of these bills, Hence a sum of Rs. 70,000/ is granted to the petitioner towards medical expenses.
MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 9 of 15)
16. Compensation for pain and suffering: Petitioner is found to have suffered grievous injury. Petitioner has suffered not only the physical injuries but also suffered mental trauma hence, keeping in view nature of injuries, duration of treatment, trauma of accident a sum of Rs. 40,000/ is granted towards pain and suffering.
17. Loss of income/leaves during treatment: PW1 in his affidavit of evidence stated that at the time of accident, he was working as Sales Manager with G Next Media Private Limited, Okhla, New Delhi and was getting salary of Rs. 75,912/ (approx) per month. Counsel for the Insurance company has submitted that petitioner has been receiving his salary during the period of his leave and he is, therefore, not entitled to any compensation on this ground and that there is no loss of income to the petitioner which can be attributed to this accident. In this regard, counsel for insurance company has relied upon the cross examination of PW2 who is Vice President, Sales in employer company of petitioner and PW2 has admitted during his cross examination that their company had paid the full salary to the petitioner during his leave. It is not the case of the petitioner that he has not been paid the salary during the leave period. However, this fact also cannot be ignored that the petitioner was forced to take medical leaves due to this accident and if he required any leaves in future, for any reason whatsoever, then he will not have the advantage of availing the kind of leave which he has been forced to take because of the accident. Interest of justice, therefore, demands that he should be compensated on this ground as well. Petitioner has filed his leave certificate Ex. PW1/4 which was proved on record by PW2 and as per the leave certificate he was on medical leaves from 16.05.2015 to 31.12.2015 (about 71/2 months, seven & half months) due to the said accident. He has also filed his salary slip for the month of May, 2015, and as per the salary slip he was drawing a total sum of MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 10 of 15) Rs. 75,912/ per month. Hence, the income of injured is to be assessed as Basic of Rs. 37,956/ + HRA of Rs. 15182/ = Rs. 53,138/ per month. As per the leave certificate Ex. PW1/4, injured was on leave for seven & a half month. Hence, the income of injured is to be assessed as Rs. 53,138/ X 71/2 months = Rs. 3,98,535/. Accordingly, injured is granted a sum of Rs. 3,98,535/ towards loss of income.
18. Compensation for Special Diet, Attendant Charges and Conveyance: PW1 in his affidavit of evidence has stated that he has spent about Rs. 5 lacs on conveyance charges, attendant charges and special diet etc for his treatment but he has not filed any documentary evidence regarding special diet, conveyance and attendant charges. Keeping in view the nature of injuries, duration of treatment, a sum of Rs. 10,000/ each is granted under each head. Thus total sum of Rs. 30,000/ is granted towards heads of attendant, conveyance and special diet charges.
19. Thus, the total compensation to which petitioner is entitled comes as under: S.No Details Amount 1 Compensation for medical expenses Rs. 70,000/ Compensation for special diet, attendant charges Rs. 30,000/ 2 and conveyance 3 Compensation for pain and sufferings Rs. 40,000/ Compensation for loss of income/leaves during Rs. 3,98,535/ 4 treatment Total Rs. 5,38,535/ Hence, the petitioner is awarded a total amount of Rs. 5,38,535/ (Rupees Five Lacs Thirty Eight Thousand Five Hundred Thirty Five Only).
MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 11 of 15) Relief :
20. The petitioner/injured is hereby awarded a sum of Rs. 5,38,535/ (Rupees Five Lacs Thirty Eight Thousand Five Hundred Thirty Five Only) alongwith interest @ 9% per annum from the date of filing of the present petition till the date of realization in favour of petitioner against the respondents on account of their liability being joint and several.
21. The driver R1 is the principal tort feasor and R2 being the owner vicariously liable for the acts of R1 and R3 being insurance company liable to indemnify the R2 owner.
22. Liability: Insurance company examined R1W1 Sh. Sunil Kumar Verma, Assistant Manager, who stated that as per the final report, the IO has given the report with respect to the driving licence of driver/respondent no. 1 that he has verified the details of the driving licence and the record was not found in the authority. The vehicle was being used by the owner in violation of the M. V. Act. As per the verification report Ex. R3W1/5, the record of DL bearing no.
83579NW/Prof/10 was not found. He further stated that the driver was not holding a valid and effective driving licence at the time of accident and the owner has committed intentional breach of the terms & conditions of the policy. Testimony of this witness has remained unchallenged. No suggestion has been given to him that he is deposing falsely and the licence is not fake one. Both the driver & owner have chosen not to cross examine this witness. In such circumstances, insurance company has been fully able to prove that the driving licence of the driver at the time of accident was fake and thus there is violation of the policy and insurance company is entitled to recovery right against the driver & owner after discharging its liability within 30 days.
MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 12 of 15)
23. In view of the above discussion, insurance company is directed to deposit the award amount in the court within a period of 30 days from today alongwith the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay.
24. Directions for the respondent No.3/Insurance company: The Respondents3 is directed to file the compliance report of their having deposited the awarded amount with the State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
25. The Respondent shall intimate to the claimant/petitioner about it having deposited the cheque in favour of petitioner in terms of the award, at the address of the petitioner mentioned at the title of the award, so as to facilitate him to withdraw the same.
26. Copy of this order be given dasti to the parties.
FormIV of the Modified Claims Tribunal Agreed Procedure to be mentioned in the Award is as under:
1 Date of the accident 15.05.2015 2 Date of intimation of the accident by the 18.05.2015 Investigating Officer to the Claims Tribunal.
3 Date of intimation of the accident by the Not available.
Investigating Officer to the Insurance Company.
4 Date of filing of Report under Section Not known.
173 Cr.P.C. before the Metropolitan Magistrate.
5 Date of filing of Detailed Accident 22.03.2016 Information Report (DAR) by the Investigating Officer before Claims MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 13 of 15) Tribunal.
6 Date of service of DAR on the 22.03.2016 Insurance Company.
7 Date of service of DAR on the 22.03.2016 claimant(s).
8 Whether DAR was complete in all Yes respects?
9 If not, state deficiencies in the DAR? NA 10 Whether the police has verified the Yes documents filed with DAR?
11 Whether there was any delay or There was delay on part of IO deficiency on the part of the in filing the DAR. He had filed Investigating Officer? If so, whether any various applications for action/ direction warranted? extension of time on filing DAR. No action was warranted.
12 Date of appointment of the Designated Not available Officer by the Insurance Company.
13 Name, address and contact number of Not available the Designated Officer of the Insurance Company.
14 Whether the Designated Officer of the No Insurance Company submitted his report within 30 days of the DAR?
15 Whether the Insurance Company Insurance company has denied admitted the liability? If so, whether the its liability. Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
16 Whether there was any delay or No deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?.
17 Date of response of the claimant(s) to Not applicable.
the offer of the Insurance Company.
18 Date of the award. 07.03.2017 19 Whether the award was passed with the No consent of the parties?
20 Whether the claimant(s) examined at the Petitioner was not examined, time of passing of the award to ascertain but financial condition was his/their financial condition? asked.
MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 14 of 15) 21 Whether the photographs, specimen Photographs, photo ID and signatures, proof of residence and proof of resident of injured particulars of bank account of the was already on record. injured/legal heirs of the deceased taken at the time of passing of the award?
22 Mode of disbursement of the award Entire award amount is
amount to the claimant(s). directed to be released
immediately
23 Next Date for compliance of the award. 01.05.2017
Announced in open Court
Dated: 07.03.2017
(Madhu Jain)
POMACT02/(South East District)
Saket, New Delhi/07.03.2017
MACT No. 4546/16 Pratap Sardana Vs. Rakesh Kumar & Ors. (Pg 15 of 15)