Delhi District Court
Sh. Arun Kumar (Injured) vs Dushyant Kumar Bargoti ... on 23 April, 2022
IN THE COURT OF Dr. KAMINI LAU : JUDGE (MACT)01
(CENTRAL) TIS HAZARI COURTS, DELHI
MACT No. 645/2020
CNR No. DLCT010091412020
Sh. Arun Kumar (Injured)
S/o Late Sh. Deep Kumar,
R/o Flat No. 224B, LIG DDA Flats,
Motia Khan, Pahar Ganj,
Delhi.
......Petitioner
Versus
1. Dushyant Kumar Bargoti (Drivercumowner)
S/o Late Sh. Priyavrat Singh Bargoti,
R/o Flat No. 220, Abhilasha Apartments,
Pocket3, Sector23,
Rohini, Delhi.
2. Oriental Insurance Co. Ltd. (Insurance)
Divisional Office - 16, N34,
Bombay Life Building,
New Delhi - 110001.
......Respondents
Date of filing of DAR: 14.12.2020
Arguments heard on: 08.04.2022
Date of passing of Award: 23.04.2022
A W A R D:
(1) The present Detail Accident Report (DAR) has been filed
on 14.12.2020 and has been registered as Motor Accident Claim
Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020,
Award dated 23.04.2022 Page No. 1 of28
Petition in respect of an accident which took place on 05.06.2020 at
10:00 AM, at Rani Jhansi Road Round about Jhandewalan, Pahar
Ganj, Delhi wherein the petitioner Arun Kumar sustained grievous
injuries.
BRIEF FACTS:
(2) The Facts in Brief as emerged from the DAR are that on 05.06.2020, the injured was going to Bagga Link Petrol Pump from his house on his Scooty bearing registration No. DL12SE2665 and was driving his Scooty with utmost care and in lawful manner. At about 10:00 AM when he reached at Rani Jhansi Road, Jhandewalan, Paharganj, Delhi the offending Car bearing registration No. DL8C AD2866 which was driven by the respondent no.1 came in very rash and negligent and carelessness manner and forcefully hit against the injured as a result of which he sustained grievous injuries. According to the petitioner, he was taken to BLK Hospital where his MLC was prepared.
(3) A detailed written statement / reply has been filed on behalf of the respondent no.1Dushyant Kumar Bargoti wherein preliminary objections have been raised that the petitioner/ IO has not come to the Court with clean hands and the most material documents touching the roots of the case, like site plan, photographs, age, income, employment, Driving License, Registration Certificate of vehicle bearing registration No. DL12SE2665 etc. have been suppressed Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 2 of28 and not supplied to the respondent no.1. It is further pleaded that the claimant has no cause of action since it is the claimant himself who is responsible for the accident and allegedly suffered injuries as no such accident took place due to the rash and negligent driving of the respondent no.1. It is also pleaded that the Kalandra lodged against claimant under Section 119/177 Motor Vehicles Act bearing DD No.62 of 2020 itself proves the guilt of the claimant as the claimant himself was driving the Scooter rashly and negligently and at a very high speed. It is further pleaded that the claimant negligently abruptly intruded and entered one way road from wrong side and dashed his scooter bearing registration No. DL12SE2665 into the slow moving car of the respondent and caused accident. It is also pleaded that despite there being no apparent visible injuries, the respondent no.1 on humanitarian grounds, immediately took the fallen/ distressed claimant to nearest hospital i.e. BLK Hospital and extended help to the claimant from his own pocket. It is also pleaded that in the documents so filed with DAR, the age of the petitioner is differently mentioned since in the copy of Aadhar Card the injured was born in 1974 whereas in the prescription slip & purported treatment records, he is shown as 45 years old but in the Preventive Action Report DD No.62 of 2020, his age is shown as 49 years though the claimant was more than 55 years of age and was unemployed. It is further pleaded that the car bearing registration No. DL8CAD2866, was insured with Oriental Insurance Co. Ltd. vide policy no. 212800/31/2020/329 valid from 01.10.2019 to Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 3 of28 30.09.2020. It is also pleaded that the respondent no.1 is not liable to pay any compensation to the claimant and in case any award is passed in the matter, the insurer of the car is liable to pay the compensation to claimant.
(4) The Respondent No.2 Oriental Insurance Co. Ltd. has filed its reasoned offer of settlement/ reply wherein it is submitted that the vehicle bearing no. DL8CAD2866 was insured in the name of Sh. Dushyant Kumar Bargoti with the Oriental Insurance Company vide Policy No. 212800/31/2020/329 valid and effective for the period from 01.10.2019 to 31.08.2020. It is pleaded that the liability of the respondent no.2 is subject to terms, conditions and stipulations contained therein and the Motor Vehicles Act and Rules framed thereunder. It is further pleaded that if any violation of policy condition is found or if at any stage any collusion is found between claimant and respondent no.1, the respondent no.2 Insurance Company reserves its right to contest the case on all the grounds as provided under Section 149 of the Motor Vehicles Act and the same is without prejudice to the provisions of Section 170 of the Motor Vehicles Act. The Insurance Company has offered a sum of Rs.41,000/ to the claimant towards compensation after deduction of 50% towards contributory negligence on the part of the injured/ petitioner as he himself was driving the scooter bearing registration No. DL12SE 2665 without having valid and effective Driving License.
Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 4 of28 ISSUES SETTLED:
(5) On the basis of the pleading of the parties, vide order dated 19.04.2021 passed by this Court, the following issues are settled which are as under:
i. Whether the accident in question had taken place on account of negligence of the petitioner Arun Kumar, as alleged by the respondent no.1 in para 3 of his written statement? (OPR1) ii. Whether the petitioner Arun Kumar had sustained Grievous Injuries in an accident which took place on 05.06.2020 at 10:00 AM at Rani Jhansi Round about, Jhandewalan, Pahar Ganj, Delhi on account of rash and negligent driving of car bearing registration No. DL8CAD2866 by the respondent no.1 Dushyant Kumar Bargoti? (OPP) iii. Whether the petitioner is entitled to any compensation? If yes, to what extent and from whom? (OPP) iv. Relief.
EVIDENCE:
(6) In order to prove his case, the injured Sh. Arun Kumar has examined himself as PW1 as his sole witness. In so far as the respondents are concerned, they have not led any evidence. It is evident from the record that after closing of the petitioner's evidence, Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 5 of28 an opportunity was granted to the respondents to lead their evidence.
On 10.03.2022 Ld. Counsels appearing for the respondents have closed the evidence on behalf of the respondents. (7) For the sake of convenience, the testimony of the injured/ petitioner is put in tabulated form as under:
S. Witness Deposition
No.
1. Sh. Arun PW1 Sh. Arun Kumar is the injured himself in the
Kumar (PW1) present case who in his examinationinchief by way of
affidavit Ex.PW1/A has corroborated the version of the Investigating Agency in the DAR. He has placed his reliance on the following documents:
1. Treatment papers which are Ex.PW1/1 (Colly, running into 15 pages).
2. Complete set of DAR including FIR, site plan and other documents are Ex.PW1/2 (Colly, running into 99 pages).
3. Photocopy of Aadhar Card of the petitioner/ injured which is Ex.PW1/3 (OSR).
4. Original bills which are Ex.PW1/4 (Colly, 27 pages).
In his cross examination by the Ld. Counsel for the respondent no.1, the witness has deposed as under: That he is 7th class passed from DAV Public School, Aram Bagh Park, Paharganj.
That he signed his affidavit Ex.PW1/A at the chamber of his counsel on 24.11.2021.
That he had got the affidavit himself attested from the Notary Public.
That the documents filed alongwith affidavit were not taken/ produced by him before the Notary Public.
That Notary has got this affidavit signed from him in his presence on the affidavit Ex.PW1/A itself. That except himself there were no other signatures appearing on Ex.PW1/A when he produced the Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 6 of28 same before the Notary Public.
That Ex.PW1/X1 (R1) is the same copy which is supplied to the respondent no.1 alongwith documents.
That on Ex.PW1/XR1 at point A signatures appearing in Ex.PW1/A are not appended. That he is not aware as to whose signatures are appended at point A on his affidavit Ex.PW1/A. That he is also not aware when the above signatures at point A on Ex.PW1/A were appended.
That the documents Ex.PW1/4 (Colly, 27 pages) alongwith his affidavit, running from page 27 to 47 are filed by him without permission of this Court.
That no prescription slip in support of above said documents has been filed.
That all the documents Ex.PW1/4 and other treatment record filed on the record, are computer generated and there is certificate under Section 65 of Indian Evidence Act in support of the same. That he had narrated the facts of the accident to the IO in the same way, he has stated in his affidavit Ex.PW1/A. That no authentic document supporting his date of birth has been filed on the judicial record. That he is having his birth certificate at his home. That according to him, his date of birth is 25th June, 1974.
That he has not brought any proof regarding his date of birth in the court.
That the witness has denied the suggestion that he has not filed any document to support just to suppress his actual date of birth.
That the affidavit Ex.PW1/X2 (R1) handed over to the IO was prepared by his counsel.
That he cannot tell exact date as to when the same was got prepared by his counsel.
That he had handed over the abovesaid affidavit to his counsel.
That he did not take the same to anyone except handing the same to his counsel.
Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 7 of28 That he is not aware as to who has signed or attested the same after handing over the same to his counsel by him.
That Ex.PW1/X2 (R1) was signed by him after attestation thereof by some Notary Public, that too, on the places at points A, B, C and D respectively bearing cross marks by black pencil. That Ex.PW1/X2 does not mention his date of birth or his age.
That interpolations at page no.1 and 2 of his affidavit Ex.PW1/A do not bear his signatures and the interpolations were made by his counsel according to which he is not aware about the facts that as to whether the facts "....the petitioner/ injured and his family are very poor and had small amounts of saving which they spent on the treatment....." as mentioned in para 6 of affidavit Ex.PW1/A are mentioned or not.
That he hail from a poor family and had no money to get himself treated.
That his entire treatment was done from out of Government funds i.e. Delhi Arogya Kosh which was cashless.
That the witness has denied the suggestion that he was challaned by the police for causing accident while driving on wrong side.
That he has not received any written statement and the documents, annexed thereto from and by respondent no.1 Dushyant Kumar Bargoti. That he is not aware whether the same are supplied to his counsel or not.
That the witness has denied the suggestion that he is deposing falsely before this court and handing over the copy of the same are duly recorded in the order dated 02.02.2021.
That no replication thereto (written statement of respondent no.1) has been filed by him.
That his name is Arun Kumar, his father's name is Sh. Deep Kumar and his age was 49 years at the time of accident.
That his address is 224B, LIG DDA Flats, Motia Khan, Paharganj, Delhi but he denied the suggestion that he was challaned by the police for Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 8 of28 causing accident while driving on a wrong side of the road Ex.PW1/X3 which forms a part of the DAR.
That he was got admitted in the hospital by the driver of the car and got the treatment done from his own pocket.
That the accident took place during the lockdown. That he has not placed any document on record to show that he was working as a labour nor he has placed on record any details of the person with whom he was employed.
That he has placed on record any document to prove his income.
That Rani Jhansi Road is a thickly populated area. That nobody can drive the vehicle at a fast speed in the area in view of the high traffic and traffic jam.
That the place of occurrence is a one sided road and in order to reach the round about from Motia Khan, one has to take a U Turn from Rani Jhansi Road.
That the witness has denied the suggestion that in order to avoid U turn from Rani Jhansi Road, people normally drive on the wrong side as a shortcut to reach round about.
That the witness has denied the suggestion that the gate open from Motia Khan is towards the wrong side of the road in case one has to go to round about.
That there are two gates of the colony and has voluntarily explained that one is opening one Desh Bandhu Gupta Road and other one the Jhandewalan side.
That the site plan Ex.PW1/X4 was prepared by the IO at his instance.
That the witness has denied the suggestion that accident had taken place due to rash and negligence act of the respondent no.1 Dushyant Kumar Bargoti or that the accident took place due to his negligently abruptly intrude and entering onewayroad from wrong side and dashing scooter bearing No. DL12SE 2665 into slow moving / moderately vehicle of the respondent Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 9 of28 which was being driven in a proper lane and caused the accident and suffered injuries. That the witness has denied the suggestion that he was not doing any work nor had any earnings at the time of accident.
That the witness further denied the suggestion that he was more than 55 years of age at the time of accident.
That the witness also denied the suggestion that respondent no.1 has been falsely implicated in the present case to extort money from him.
That he has not placed on record any supporting document to show that he had incurred the expenses of Rs.1,00,000/ upon his treatment, Rs.50,000/ towards conveyance and Rs.50,000/ towards his special diet.
That the witness has denied the suggestion that he has deliberately made an exaggerated demand without incurring any expenses as herein above. That the witness has further denied the suggestion that he has no cause of action to file the present case.
In so far as the respondents are concerned, they have not examined any witness and closed their evidence on 10.03.2022.
FINDINGS & OBSERVATIONS:
(8) I have heard the arguments advanced before me and considered the material on record. My findings on the various issues are as under:
Issue No.1: Whether the accident in question had taken place on account of negligence of the petitioner Arun Kumar, as alleged by the respondent no.1 in para 3 of his written statement? (OPR1) Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 10 of28 Issue No.2: Whether the petitioner Arun Kumar had sustained Grievous Injuries in an accident which took place on 05.06.2020 at 10:00 AM at Rani Jhansi Round about, Jhandewalan, Pahar Ganj, Delhi on account of rash and negligent driving of car bearing registration No. DL8CAD2866 by the respondent no.1 Dushyant Kumar Bargoti? (OPP) (9) Both the above issues are clubbed together for the sake of convenience involving common discussion. Onus of proving the issue no.1 was upon the respondent no.1 and that of the issue no.2 upon the petitioner.
(10) The case of the petitioner Arun Kumar is that on 05.06.2020 he was going to Bagga Link Petrol Pump from his house on his Scooty bearing registration No. DL12SE2665 and was driving his Scooty with utmost care and in lawful manner. According to the petitioner, at about 10:00 AM when he reached at Rani Jhansi Road, Jhandewalan, Paharganj, Delhi the offending Car bearing registration No. DL8C AD2866 which was being driven by the respondent no.1 came in very rash and negligent and carelessness manner and forcibly hit against the injured as a result of which he sustained grievous injuries after which he was taken to BLK Hospital where his MLC was prepared. It is the case of the petitioner that the accident in question had taken place on account of the rash and negligent driving of the offending vehicle by the respondent no.1 Dushyant Kumar.
(11) On the other hand, the case of the respondent no.1 Dushyant Kumar is that it was the petitioner himself who negligently and Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 11 of28 abruptly intruded/ entered the onewayroad from wrong side and dashed the scooter bearing No. DL12SE2665 into slow moving/ vehicle of the respondent which was being driven in a proper lane. The case of the respondent no.1 Dushyant Kumar is that the petitioner Arun Kumar himself was solely responsible for the accident. (12) In order to prove his case the petitioner Arun Kumar has examined himself as his sole witness as PW1 whereas the respondents have not led any evidence in support of their case. (13) I have considered the arguments advanced before me and perused the record including the DAR and the documents attached along with the same. My findings and observations are as under:
Identity of the respondent no.1 as driver of the offending vehicle:
(14) Coming first to the Identity of the respondent no.1 Dushyant Kumar Bargoti as the Driver of the alleged offending vehicle i.e. WagonR Car bearing No. DL8CAD2866. I may note that the respondent no.1 Dushyant Kumar Bargoti has nowhere disputed that he was not driving the said car rather, in his written statement he has duly admitted that he was driving the WagonR Car bearing No. DL8CAD2866. This being the background, I hold that the identity of the respondent no.1 as driver of the alleged offending vehicle i.e. WagonR Car bearing No. DL8CAD2866 stands established.
Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 12 of28 Injuries caused to the injured Arun Kumar:
(15) In so far as the aspect of Injuries caused to the injured Arun Kumar is concerned, I have gone through the photocopy of the Medico Legal Report of the injured Arun Kumar prepared at BLK Hospital which shows that the injured was brought to the hospital on 05.06.2020 at 12:20 PM with alleged history of RTA at around 11:00 AM today near Jhandewalan Gol Chakkar as told by patient himself.
As per the medical documents placed on record including the Discharge Summary which is Ex.PW1/1 the injured was diagnosed with Fracture Shaft of Femur Left Side which injury has been opined to be Grievous in nature. It is also an admitted case of the petitioner that his entire treatment was done from out of Government funds i.e. Delhi Arogya Kosh which was cashless. There is no dispute to the same nor any evidence contrary to the same has come on record. This being the background, it stands established that the injured Arun Kumar had sustained Grievous Injuries in the accident in question.
Rashness and Negligence so attributed to the respondent no.1:
(16) Coming next to the Rashness and Negligence so attributed to the respondent no.1 Dushyant Kumar is concerned, the case of the petitioner is that the accident had taken place on account of the rash and negligent driving of the respondent no.1 whereas according to the respondent no.1 the petitioner was solely responsible for the accident in question.
Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 13 of28 (17) It is a settled law that a claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. In a criminal case the rashness and negligence against the accused has to be proved beyond reasonable doubt whereas in a civil case or MACT claim for grant of compensation the principle involved is preponderance of probability. It would be sufficient if the surrounding circumstances and the material on record establishes the allegations of rashness and negligence made against the driver of the offending vehicle. (18) The present case has been registered on the basis of the statement of injured Arun Kumar wherein he had stated that the accident in question had taken place on account of the rash and negligent driving of WagonR Car bearing No. DL8CAD2866. In this regard, I may observe that a bare perusal of the chargesheet shows that during investigations it was revealed that the petitioner/ injured was driving his scooter on wrong side of the road for which a Kalandra under Section 119/117 of Motor Vehicles Act was also filed against him before the Evening Court. The conduct of the Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 14 of28 petitioner Arun Kumar (PW1) is not above board. When this aspect was specifically put to the petitioner he denied that he was challaned by the Police for causing accident while driving on wrong side of the road. Copy of the above Kalandra forms a part of the DAR and is Ex.PW1/X3 which shows that the petitioner was driving his scooter on the wrong side of the road and hence, he was booked for violations under Section 119/117 of Motor Vehicles Act. (19) Further, the Mechanical Inspection Report of the accidental Scooter i.e. LML (NV) bearing No. DL12SE2665 shows the following fresh damages:
➢ Left side pipe beading scratched.
➢ Left side lever/ muttha scratched.
➢ Left side engine cover scratched and flap cover torn. ➢ Right side engine cover dented/ pressed/ flap cover torn. ➢ Engine plastic head cover damaged.
(20) The Mechanical Inspection Report of the alleged offending vehicle i.e. WagonR Car bearing No. DL8CAD2866 shows that there were following damages on the same:
➢ Front bumper damaged/ scratched.
➢ Two front grills damaged.
➢ Left head light scratched.
➢ Front Bonnet dented/ scratched/ pressed.
Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 15 of28 (21) The above Mechanical Inspection Reports establish that the WagonR was going in proper lane and it was the Scooter which came in front of the car due to which the car hit the right side of the scooter as a result of which the right side engine cover of the scooter was pressed/ dented and corresponding damages on the front portion of the car. The scooter then fell down on its left side which fact is evident from the scratches present on its left side and corresponding injuries on the left hip and thigh. These Mechanical Inspection Reports show that the WagonR Car was being driven in its proper lane and the two wheeler scooter came in front of the car. (22) Also, the copy of the Site Plan which forms a part of the DAR shows that the spot of the accident is near the Rani Jhansi Round About. It is an admitted case of the petitioner/ injured Arun Kumar that he is a resident of Flat No. 224B, LIG DDA Flats, Motia Khan, Pahar Ganj, Delhi. It is also an admitted case of the petitioner that there are two gates of the colony one is opening on Desh Bandhu Gupta Road and other towards Jhandewalan side. It is evident from the site plan that there is no gate of Motia Khan Residential Area towards Jhandewalan side and after taking an exit from the gates of Motia Khan residential area on DBG Road, one has to take a U Turn from the main road to reach the Rani Jhansi Round About, whereas in the present case, instead of taking a U Turn the injured Arun Kumar approached the Rani Jhansi Round About, by driving his Scooter on the wrong side of the road.
Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 16 of28 (23) The circumstantial evidence on record in the form of Mechanical Inspection Reports, Site Plan and Kalandra against the petitioner Arun Kumar under Section 119/177 of Motor Vehicles Act confirm the version of the respondent no.1 Dushyant Kumar to the effect that there was no negligence on his part and the accident had taken place on account of the fact that the petitioner Arun Kumar was driving his scooter on wrong side of the road and suddenly came in front of the car.
(24) During the course of proceedings, an application was filed by the Ld. Counsel for the petitioner for converting the present case under Section 163(A) of Motor Vehicles Act since the petitioner has failed to prove the rashness and negligence on the part of respondent no.1. It is submitted that though the provisions of Section 163(A) of Motor Vehicles Act have been deleted w.e.f. 01.04.2022, yet the accident in the present case took place on 05.06.2020 and hence, the present case be considered under Section 163 (A) of Motor Vehicles Act. I have duly considered the request made. In the light of my discussion as above, particularly on account of the fact the petitioner / injured was driving his Scooter on the wrong side of the road, I hereby hold as under:
➢ That the WagonR Car bearing No. DL8CAD2866 was being driven by Dushyant Kumar Bargoti (respondent no.1) when the accident took place.
➢ That the LML (NV) Scooter bearing No. DL12SE2665 was being driven by the petitioner/ injured Arun Kumar on Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 17 of28 wrong side of the road.
➢ That in the accident the petitioner Arun Kumar had sustained Grievous Injuries.
➢ That the Rashness and Negligence so attributed to the respondent no.1 Dushyant Kumar does not stand established.
(25) On the face of it, the Rashness and Negligence attributed to the respondent no.1 Dushyant Kumar does not stand established though in the said accident the injured Arun Kumar sustained Grievous Injuries involving the WagonR Car bearing No. DL8C AD2866 driven by respondent no.1 Dushyant Kumar. Hence, in the interest of justice, I hereby permit the invocation of the provisions of Section 163A of the Motor Vehicles Act. (26) Both the issues are accordingly disposed off.
Issue No.3: Whether the petitioner is entitled to any compensation? If yes, to what extent and from whom? (OPP) (27) Onus of proving this issue was upon the petitioner. The petitioner having failed to establish the rashness and negligence attributed to the respondent no.1 Dushyant Kumar, in the interest of justice, this Tribunal invokes the provisions of Section 163A of Motor Vehicles Act. I may note that vide S.O. 3147 (E) dated 30.08.2019 the provisions of Section 163A of Motor Vehicles Act along with the Second Schedule stand deleted but since the accident in Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 18 of28 question had taken place on 05.06.2020, in the interest, I proceed under Section 163A the Motor Vehicles Act. (28) Now coming to the quantum of compensation, I may observe that vide Gazette Notification bearing No. S.O.2022 (E) dated 22.05.2018 issued by the Ministry of Road Transport and Highways, Government of India, the compensation payable in case of death and injuries have been assessed. The Second Schedule under Section 163 A of Motor Vehicles Act is reproduced as under:
Schedule for Compensation for Third Party Fatal Accidents/ Injury cases claims:
1. (a) Fatal Accident:
Compensation payable in case of Death shall be five lakh rupees.
(b) Accidents resulting in permanent disability:
Compensation payable shall be = [Rs.5,00,000/ X percentage disability as per ScheduleI of the Employee's Compensation act, 1923 (8 of 1923)];
Provided that the minimum compensation in case of permanent disability of any kind shall not be less than fifty thousand rupees.
(c) Accidents resulting in minor injury:
A fixed compensation of twenty five thousands rupees shall be payable.
2. On and from the date of 1st day of January, 2019, the amount of compensation specified in the clause
(a) to (c) of paragraph (1) shall stand increased by 5 per cent annually.
Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 19 of28
3. This notification shall come into force on the date of its publication in the Official Gazette.
(29) It stands established that the injured/ petitioner had suffered Grievous Injuries in the accident in question but the aspect of his having suffered any Disability has not been proved. I hereby hold that the fixed compensation of Rs.50,000/ (Rupees Fifty Thousand only) is to be awarded to the petitioner/ injured Arun Kumar. (30) I may note that interest @ 9% per annum was awarded by the Hon'ble Apex Court in the case of Municipal Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy reported in 2012 ACJ 48 (SC). In the interest of justice, it is held that claimants shall be entitled to interest @ 6% per annum from the date of filing of DAR i.e. from 23.04.2022 till realization.
Disbursement:
(31) The Financial Statement of the petitioner was recorded by this Court/ Tribunal on 08.04.2022 according to which his family consists of himself and two elder sisters and his monthly family expenses are about Rs.25,000/ per month. (32) Considering the quantum of amount, on realization of the award amount, the entire award amount along with interest be released to the petitioner Arun Kumar. In terms of the directions contained in FAO No. 842/2003 decided on 07.12.2018 & 08.01.2021, Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 20 of28 the entire amount shall be transferred in his saving account maintained in a nationalized bank without the facility of cheque book and ATM card. It is clarified that the amount shall be released to him only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without prior permission of this Tribunal.
(33) In compliance of the directions given by Hon'ble High court in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021, Summary of the Award in the prescribed FormatXVI is as under:
SUMMARY OF AWARD:
1. Date of Accident: 05.06.2020
2. Name of the Injured: Arun Kumar
3. Age of the Injured: 46 Years
4. Occupation of the Injured: Labour (Not proved)
5. Income of the Injured: No Proof
6. Nature of Injury: Grievous
7. Medical Treatment taken by BLK Hospital the injured:
8. Period of Hospitalization: 05.06.2020 to 10.06.2006
9. Whether any permanent Nil disability? If yes, give details:
Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 21 of28
10. COMPUTATION OF COMPENSATION Sr. Heads Awarded by the No. Claims Tribunal
11. Pecuniary Loss:
(i) Expenditure on Treatment Under Section 163A of Motor Vehicles
(ii) Expenditure on Conveyance Act
(iii) Expenditure on Special Diet
(iv) Cost of Nursing/ Attendant
(v) Loss of earning capacity
(vi) Loss of income
(vii) Any other loss which may require any special treatment or aid to the injured for the rest of his life
12. Non Pecuniary Loss
(i) Compensation for mental and physical Under Section 163A shock of Motor Vehicles
(ii) Pain and Sufferings Act
(iii) Loss of amenities of life
(iv) Disfiguration
(v) Loss of marriage prospects
(vi) Loss of earning, inconvenience, hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life etc.
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and Under Section 163A nature of disability as permanent or of Motor Vehicles temporary Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 22 of28
(ii) Loss of amenities or loss of expectation Act of life span on account of disability
(iii) Percentage of loss of earning capacity in relation to disability
(iv) Loss of future income - (income x % earning capacity x Multiplier)
14. TOTAL Rs.50,000/
15. INTEREST AWARDED 6%
16. Interest amount upto the date of award Rs.4,050/ (1 year, 4 months & 6 days)
17. Total amount including interest Rs.54,050/
18. Award amount released As mentioned in para 32
19. Award amount kept in FDRs As mentioned in para 32
20. Mode of disbursement of the award As mentioned in para amount of the claimant(s) 32
21. Next date for compliance of the award 27.05.2022 Liability:
(34) In so far as the liability to pay the awarded amount is concerned, I may note that as per the provisions of Section 163A of Motor Vehicles Act the Owner of the motor vehicle or the Authorized Insurer shall be liable to pay. The provision of Section 163A of Motor Vehicles Act is reproduced as under:
163A. Special provisions as to payment of compensation on structured formula basis: (1) Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 23 of28 Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
(35) The respondent no.1 Dushyant Kumar Bargoti being the drivercumowner of the offending vehicle bearing No. DL8CAD 2886 which was insured with respondent no.2 The Oriental Insurance Company Ltd. therefore both shall be jointly and severally liable to pay compensation to the petitioner but since the vehicle was duly insured with respondent no.2 i.e. The Oriental Insurance Company Ltd. as on the day of accident, it is respondent no.2 The Oriental Insurance Company Ltd. who is ultimately held liable to indemnify the insurance and to pay the compensation amount to the petitioner under the statutory liability.
RELIEF:
(36) Since the offending vehicle was insured with the respondent no.2 The Oriental Insurance Company Ltd. therefore, the respondent no.2 is directed to deposit a sum of Rs.50,000/ (Rupees Fifty Thousand only) with interest @ 6% per annum from the date of filing of DAR i.e. 14.12.2020. The Insurance Company is directed to Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 24 of28 deposit the award amount or transfer the same by RTGS/NEFT/IMPS to the bank account of the MACT01, State Bank of India, Tis Hazari Courts Complex Branch, Delhi and while making the payment through one of the aforementioned modes, Insurance Company shall also furnish particulars of this case, name of the Tribunal and the date of decision as well. Insurance Company is further directed to submit copy of the award attested by its responsible officer in the bank along with receipt qua depositing/ transferring of award amount. Insurance Company is further directed to place on record proof of deposit of the award amount, proof of delivery of notice to petitioner(s) in respect of deposit of the award amount and complete details in respect of calculation of interest etc., if any, in the Tribunal within 30 days with effect from today failing which insurance company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days. (37) A copy of this judgment be sent to the respondent No.2 i.e. The Oriental Insurance Company Ltd. for compliance within the time granted. Respondent No.2 The Oriental Insurance Company Ltd. is further directed to give intimation of deposit of the compensation amount to the claimant and shall file a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount within 15 days of the deposit with upto date interest with a copy to the Ld. Counsel for the petitioner namely Ms. Babita Tyagi Advocate, Chamber No. 197, Civil wing, Tis Hazari Court, Delhi (Mobile No. 9811396354).
Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 25 of28 (38) Civil Nazir is directed to place a report on record on 27.05.2022 in the event of nonreceipt/deposit of the compensation amount within the time granted.
(39) File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 23.04.2022 PO, MACT01, Central District,
Tis Hazari Courts, Delhi
Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 26 of28 FORM - XVII COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE MENTIONED IN THE AWARD 1 Date of Accident 05.06.2020 2 Date of filing of FormI - First Accident Not Applicable being a case of Report (FAR) 2020 3 Date of delivery of FormII to the Not Applicable being a case of victim(s) 2020 4 Date of receipt of FormIII from the Not Applicable being a case of Driver 2020 5 Date of receipt of FormIV from the Not Applicable being a case of Owner 2020 6 Date of filing of the FormV - Interim Not Applicable being a case of Accident Report (IAR) 2020 7 Date of receipt of FormVIA and Form Not Applicable being a case of VIB from the Victim(s) 2020 8 Date of filing of FormVIII - Detail 14.12.2020 Accident Report (DAR) 9 Whether there was any delay or deficiency on the part of the Investigating Officer? If so, whether any action/ direction No warranted?
10 Date of appointment of the Designated Officer by the Insurance Company 17.12.2020 11 Whether the Designated Officer of the Yes Insurance Company admitted his report within 30 days of the DAR?
12 Whether there was any delay or deficiency No on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13 Date of response of the claimant(s) to the 02.02.2021 offer of the Insurance Company.
Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 27 of28 14 Date of award 23.04.2022 15 Whether the claimant(s) were directed to Yes open savings bank account(s) near their place of residence?
16 Date of order by which claimant(s) were 14.12.2021 directed to open Savings Bank Account(s) near his place of residence and produce PAN card and Aadhaar Card and the direction to the bank not to issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s).
17 Date on which the claimant(s) produced On 08.04.2022 the claimant the passbook of their savings bank produced his PAN Card bearing account(s) near the place of their residence No. CFMPK9315M, Aadhar Card alongwith the endorsement, PAN card and and copy of Bank PassBook with Aadhaar Card? necessary endorsement.
18 Permanent residential address of the As per Award claimant(s).
19 Whether the claimant(s) savings bank Yes account(s) is near their place of residence? 20 Whether the Claimant(s) were examined at Yes, the Financial Statement of the the time of passing of the Award to petitioner was recored on ascertain his/their financial condition? 08.04.2022 (Dr. KAMINI LAU) PO, MACT01 (Central), Tis Hazari Courts, Delhi/ 23.04.2022 Arun Kumar Vs. Dushyant Kumar Bargoti & Anr., MACT No. 645/2020, Award dated 23.04.2022 Page No. 28 of28