Delhi District Court
Girish Kumar vs . Rahul Singh & Ors. on 3 October, 2016
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Girish Kumar Vs. Rahul Singh & Ors.
IN THE COURT OF SH.MOHINDER VIRAT
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
GIRISH KUMAR VS. RAHUL SINGH & ORS.
MACP NO.D94/16
1. SH.GIRISH KUMAR
S/O SH.SHIV CHAND
R/O RZ168, GALI NO.5/5,
SAGARPUR, NEW DELHI.
...... Petitioner
THROUGH LD. COUNSEL SH.H.N.SINGH
Versus
1. SH.RAHUL SINGH
S/O SH.RAMESH SINGH
R/O VILLAGE BAKSARA, PS CAHMAR,
CAZIPUR, UTTAR PRADESH.
2. MERU CAB COMPANY PVT. LTD.
BIMAL PLAZA, FF PLOT NO.9,
POCKET4, SECTOR11, DWARKA, NEW DELHI
3. BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD.
II FLOOR, DLF INDUSTRIAL AREA,
PLOT MOTI NAGAR, NEW DELHI.
THROUGH LD.COUNSEL SH.SANDEEP JHA
MOBILE NO.9717263053
.....Respondents
Date of institution : 09.09.2015
Date of framing of issues : 07.10.2015
Date of hearing arguments : 03.10.2016
Date of decision : 03.10.2016
Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16
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Girish Kumar Vs. Rahul Singh & Ors.
AWARD/JUDGMENT
1. The DAR in case FIR No.289/15 was filed by police on 09.09.2015. The offending vehicle was being driven by Sh.Rahul Singh(hereinafter called as respondent no.1 in short R1), owned by Meru Cab Company Pvt.Ltd(hereinafter called as respondent no.2 (in short R2) and was insured with Bajal Allianz General Insurance Company Ltd. (hereinafter called as respondent no.2(in short R2).
2. Brief facts of the case are that on 10.7.2015 at about 2.00 AM the petitioner after parking his vehicle at Multi level parking IV Floor, IGI Airport, New Delhi, in order to relax lay down near his vehicle, in the meantime the vehicle bearing no.DL1RY 4877(hereinafter called as offending vehicle) being driven in rash and negligent manner by R1 came from the wrong side and without looking at the petitioner, took the front tyre of the car on the body of petitioner due to which he sustained injuries. The petitioner was taken to AIIIMS Trauma Centre.
3. R1 the driver of offending vehicle has not filed reply despite opportunities.
4. R2 the owner of offending vehicle filed reply thereby stating therein that the said vehicle is registered with the owner company and is to be driven by the driver on the basis of agreement. It is stated that the violation of traffic rules is on the part of driver in terms of agreement. It is also stated that the offending vehicle was insured with R3 at the time of accident and there was no violation of terms and conditions of insurance policy and as such the compensation, if any to the injured shall be paid by insurance company.
5. R3 the insurer filed reply thereby admitting therein that the offending vehicle was insured with R3 at the time of accident. It is stated that R1 was not holding valid driving licence at the time of accident. It is further stated that as per Radio Taxi Scheme 2006 the driver of offending vehicle was required the driving licence of appropriate Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16 Page no.2 of 14
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category for at least five years issued by an authority in the NCT of Delhi but in the present case the driver was having driving licence issued from Uttar Pradesh so he was not permitted to drive in Delhi. It is stated that the petitioner was himself negligent as he was sleeping on the floor of parking area.
6. I have heard the Ld. Counsel for the parties and perused the entire material available on record. My issue wise findings are as under: ISSUE NO.1 "Whether the petitioner sustained injuries in the accident which occurred on 10.1.2015 at about 2.00 AM at Multi Level Parking, 4th Floor, IGI Airport, T- 3, New Delhi caused by rash and negligent driving of vehicle no.DL-1RY-4877 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP"
7. The onus to prove this issue was on petitioner and in order to prove the same, the petitioner has filed his examination in chief by way of affidavits Ex.PW1/A. In his affidavit Ex.PW1/A the petitioner has narrated the whole incident and he has relied upon the documents filed alongwith DAR by the police.
8. In the crossexamination he stated that he was laying in the waiting room area in the parking lot and he was sleeping. He further stated that the place where he was laying, vehicles were not coming and going and it is only meant for the drivers to rest. He also stated that there was light at the spot of accident.
9. Now coming to the factual matrix of the present case it be seen that the petitioner has categorically deposed that the accident had taken place on account of rash and negligent driving of offending vehicle by R1. He also stated that there was light at the spot of accident and R1 had come from the wrong side. Further the R1 has not even Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16 Page no.3 of 14
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cared to file reply to the DAR. As per final report under Section 173 of Cr.PC filed alongwith DAR by the IO, R1 has been charge sheeted for offences under Section 279/338 IPC and as per arrest memo he has been arrested in the present case. The seizure of documents of offending vehicle and driving licence etc.of R1 shows the involvement of offending vehicle in the present accident.
10. In order to disprove the negligence, nothing contrary has come on record from respondent's side as they have not led any defence to rebut the averments of aforesaid PW regarding rash and negligent driving of offending vehicle by R1. Further R1 has neither filed reply nor got himself examined or brought any witness in his favour for which this Tribunal draws a adverse inference against him.
11. Here, it should also be remembered that the standard of proof in a claim petition is not as rigid and as high as in a criminal case. In a criminal case proof beyond reasonable doubt is required, however, in a claim petition it is not so. In Bimla Devi and others Vs. Himachal Road Transport Corporation and others (2009) 13 SC 530, it has been observed by the Hon'ble Supreme Court that in a road accident, the strict principles of proof as in a criminal case are not attracted. Relevant portion of the judgment is reproduced as under: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16 Page no.4 of 14
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12. These observations were quoted with approval in the latest judgment of the Hon'ble Supreme Court in Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096(Civil Appeal No.1082 of 2011).
13. In National Insurance Company Limited Vs. Pushpa Rana, 2009 ACJ 287, decided by the Coordinate Bench of the Hon'ble Delhi High Court, it was held that where the claimants filed either the certified copies of the criminal record or the criminal record showing the completion of investigation by the police or issuance of charge sheet under Section 279/338 IPC or the certified copy of FIR or the recovery of the mechanical inspection report of the offending vehicle, then these documents are sufficient proof to reach to a conclusion that the driver was negligent.
14. In this case also the petitioner has proved the negligence of the driver of offending vehicle vide copies of criminal record filed alongwith DAR by the police.
15. In the light of aforesaid discussions, observations and findings of this tribunal, the issue no.1 is decided in favour of the injured and against the respondents holding that the accident has been caused because of the rash and negligent driving of R1. Aforesaid issue is disposed of accordingly.
ISSUE NO.2 "Whether the petitioner is entitled for compensation? If so, to what amount and from whom"
16. As the issue no.1 has been proved in affirmative, therefore, the petitioner has become entitled to be compensated. Now the question arises as to how much amount has to be awarded to him and from whom?
16. Here, it would be also appropriate to refer to the observations made by the Hon'ble Supreme Court in R.D.Hattangadi V/s Pest Control(India) Pvt. Ltd., Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16 Page no.5 of 14
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AIR 1995 SC 755 wherein it was observed as under:
"In injury cases it is not easy to assess the amount of damages. The same can however be based on some element of guess work and some amount of sympathy linked with the nature of disability. However, all such elements are required to be viewed with objective standard. While assessing the damages the court can not base its opinion merely on speculation or fancy though conjectures to some extent are inevitable.
Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. Pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning or profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16 Page no.6 of 14
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variety of matters i.e. on account of injury, the claimant may not be able to walk or run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
17. In the light of the above, the amount of just compensation shall be as under: MEDICINES AND TREATMENT
18. The petitioner in his affidavit Ex.PW1/A has averred that in the accident he sustained grievous injuries. It is stated that immediately after the accident, the petitioner was taken to JPN Apex Trauma Centre, AIIMS. Alongwith DAR, IO has filed the copy of MLC of petitioner prepared at the aforesaid Trauma Centre which shows the nature of injuries as grievous/dangerous. The petitioner has also filed the discharge summary prepared at JPN Apex Trauma Centre which shows that he was admitted in the said hospital on 10.7.2015 and was discharged on 17.7.2015 and the diagnosis is mentioned as RTI with Grade 2 splenic injury with moderate hemoperitoneum left with 45th rib fracture and he was operated on 10.7.2015. The petitioner has also filed the copies of other treatment record consisted of OPD cards, investigation reports etc.etc. The petitioner has filed the medical bills amounting to Rs.4652/. No evidence to the contrary has been adduced by respondents. The petitioner is thus awarded a sum of Rs.4652/ towards medicines and medical treatment. LOSS OF INCOME.
19. In his affidavit the petitioner has submitted that the car of the petitioner was attached with Meru Cab Company Pvt.Ltd. From where he used to deposit Rs.40,000/ on every ten days and the said company was paying a sum of Rs.60,000/ to Rs.70,000/ per month after Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16 Page no.7 of 14
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deducting all taxes. Though the petitioner has deposed that he was earning a sum of Rs.60,000/ to Rs.70,000/ per month but no document in this regard has been filed. The petitioner is stated to be a taxi driver. In the absence of any proof of income, since the petitioner was working as professional driver, his income is taken as Rs.10,478/ which were the minimum wages of a skilled worker at the time of accident.
20. The petitioner has not filed any document thereby authorising him bed rest for any specific period. However, looking at the nature of injuries, notice can be taken of the fact that the petitioner might not have been in a position to attend his avocation/working pattern for a period of five months. The petitioner is thus awarded a sum of Rs.52,390/ towards loss of income for a period of five months.
PAIN & SUFFERINGS:
21. Pain and suffering is covered under non pecuniary damages. To calculate the same, nature of injuries sustained by the injured, duration during which he got the medical treatment and was confined to bed, are some of the factors which are required to be taken into account. The injuries sustained by him were grievous in nature. The mental agony which the petitioner might have undergone at the time of accident, cannot be equated or quantified in terms of money. Physical pain which the petitioner must have undergone during the course of treatment would have been immense. To compensate the petitioner under this head, I award a sum of Rs.60,000/ to the petitioner for pain and sufferings. CONVEYANCE AND SPECIAL DIET AND ATTENDANT CHARGES
22. The petitioner during the course of his deposition has failed to substantiate the amount spent by him on conveyance, special diet and attendant charges with documentary evidence. However, considering the nature of injuries notice can be taken of the fact that the petitioner would have paid repeated visits to the hospital/doctor for his follow up treatment, Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16 Page no.8 of 14
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incurring expenses on conveyance. He must have required to take special diet to recover from the injuries sustained by him. He would have also required assistance of attendant for day to day activities. I, therefore, award a sum of Rs.30,000/(Rs.Thirty Thousand) to the petitioner towards conveyance, special diet and attendant charges.
23. Keeping in view the nature of injuries and nature of evidence following amount shall be just compensation:
SR.NO. HEADS OF COMPENSATION AMOUNT IN RS.
1 MEDICINES AND MEDICAL TREATMENT 4652
2 LOSS OF INCOME 52390
3 PAIN AND SUFFERING 60000
4 CONVEYANCE, SPECIAL DIET AND ATTENDANT CHARGES 30000
5 LOSS OF AMENITIES OF LIFE 20000
TOTAL Rs.1,67,042/
Rs. One Lac Sixty Seven Thousand Forty Two only
INTEREST
24. There is nothing on record to withhold the interest. Hence, the petitioner is awarded interest @ 9% per annum from the date of filing of DAR i.e.09.09.2015 till its realization.
RELEASE
25. Whole amount with interest is ordered to be released to the petitioner. LIABILITY
26. The arguments raised on behalf of R3 the insurance company are two folds. Firstly it is contended on behalf of R3 that the licence of R1 was not valid at the time of accident. Secondly it has been contended that as per Radio Taxi Scheme 2006, the driver of the taxi Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16 Page no.9 of 14
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must be having driving licence issued from NCT of Delhi. In order to prove its defence the insurance company has examined Sh.Sudeep, Senior Executive(Legal) of the company as R3W1. He has tendered in evidence his affidavit Ex.R3W1/A and relied on authorization letter Ex.R3W1/1, copy of insurance policy with terms and conditions Ex.R3W1/2 and copy of radio taxi scheme Ex.R3W1/3. In his affidavit he has stated that the offending vehicle was allowed to be driven by its owner in violation of the terms and conditions of VI(1) of the Radio Taxi Scheme 2006. In the crossexamination he stated that nowhere in the terms and conditions of insurance policy it is mentioned that the violation of conditions of Radio Taxi Scheme 2006 will be considered as violation of terms and conditions of insurance policy.
27. On the other hand R2 the registered owner has examined R2W1 Sh.Pankaj Prakash, its Senior Executive, Legal and Facilitation who has tendered in evidence his affidavit Ex.R2W1/A and relied upon the documents Ex.R2W1/1 to Ex.R2W1/7. In his affidavit he has stated that the radio taxi services are run by the company on the basis of agreement which the concerned driver enter with the company. It is further stated that the driver is responsible for the violation of traffic rules and relied on the agreement Ex.RW1/2. It is stated that the other documents of the offending vehicle were valid at the time of accident. In the crossexamination he admitted that the owner company is running radio taxi under the Radio Taxi Scheme 2006. He further stated that he does not remember whether there is any terms and conditions with respect to the drivers having licence issued from NCT of Delhi. He denied the suggestion that their company has entered into the agreement with the driver in violation of terms and conditions of Radio Taxi Scheme 2006.
28. As regards the first contention of counsel for R3 it will be suffice to mention that as per copy of driving licence filed alongwith DAR by the IO, it was valid from 29.04.2010 till 28.04.2030 for non transport and was valid for transport vehicle till 30.5.2018. As per the Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16 Page no.10 of 14
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documents filed by IO alongwith DAR i.e.copy of driving licence and its verification report the licence of R1 was valid for Transport vehicle at the time of accident. Hence the arguments as raised by insurance company holds no ground.
29. As regards the second contention of R3 it be noted that it has been admitted by R2W1 that the owner company is running radio taxi under the Radio Taxi Scheme 2006 which requires the driver to have driving licence issued by an authority in the NCT of Delhi. Here it is pertinent to mention though as per evidence on record, R2 had committed violation of terms and conditions of Radio Taxi Scheme 2006 but as per judicial record there is no breach of terms and conditions of insurance company and since there is no breach of terms and conditions of insurance company R3 is vicariously liable to indemnify the insured.
30. Admittedly the offending vehicle was being driven by R1, owned by R2 and was insured with R3. Therefore, R1 and R2 are principal tortfeasors and in view of aforesaid R3 is vicariously liable. All the respondents are held jointly and severally li able. Since the vehicle was insured with R3, therefore, it shall pay the awarded amount.
31. In view of the above discussions, issue no.2 is decided in favour of the petitioner and against the respondents.
ISSUE NO.3.
RELIEF
32. In view of findings on issues no.1 and 2, this issue is also decided in favour of the petitioner and against respondents. A sum of Rs.1,67,042/(Rupees One Lac Sixty Seven Thousand Forty Two only) with interest is awarded in favour of the petitioner and against the respondents.
33. R3 shall deposit the award amount directly in bank account of the Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16 Page no.11 of 14
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petitioner at UCO Bank, Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, the R3 fail to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5000/.
34. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
35. R3 shall inform the petitioner through registered post that the cheques of the awarded amount are being deposited so as to facilitate the petitioner to collect his cheque.
36. Manager, UCO Bank, Patiala House Court Complex, New Delhi is directed not to open joint account or to release the award amount in joint account.
37. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi State Legal Services Authority. Further, Nazir is directed to maintain the record Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16 Page no.12 of 14
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as per the directions given by the Hon'ble Delhi High Court in the judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014 which has been circulated vide Circular No.1028/CivilIV/DHC dated 14.01.2015.
38. File be consigned to Records after due compliance.
39. A separate file be prepared for compliance report and put up the same on 04.1.2017.
Announced in the open court. (Mohinder Virat)
on 03.10.2016 PO/MACT, New Delhi.
Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16
Page no.13 of 14
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MACP No.D-94/16
03.10.2016
Present: Petitioner in person.
Sh.Alok Singh, Ld.counsel for respondent no.2.
Proxy counsel for counsel for respondent no.3.
Final arguments heard.
Be put up for orders/award at 4.00 PM.
(Mohinder Virat) Judge/MACT, New Delhi 03.10.2016 At 4.00 PM Present: None.
Vide separate order an award for a sum of Rs.1,67,042/- (Rupees One Lac Sixty Seven Thousand Forty Two only) with interest(as per directions in the award) is passed in favour of the petitioner and against the respondents.
Main file be consigned to Records after due compliance. Nazir to put up for compliance report on 04.01.2017.
(Mohinder Virat) Judge/MACT, New Delhi 03.10.2016 Girish Kumar Vs. Rahul Singh & Ors. MACP No.D-94/16 Page no.14 of 14