Delhi District Court
Aas Mohammed vs Vaibhav Kumar on 21 September, 2023
IN THE COURT OF SH. ASHUTOSH KUMAR : JUDGE (MACT)-01 (CENTRAL) TIS HAZARI COURTS, DELHI CNR No. DLCT01-005762-2023 MACT No. 369/2023 FIR No. 89/2023 PS: Darya Ganj U/s-279/337/338 IPC & U/s-185 M.V. Act Aas Mohammed @ As Mauhammad S/o Sh. Hanif, R/o F-223, Gali No.9, Gokal Puri, Bhagirathi Vihar, Delhi ......Petitioner Versus 1. Vaibhav Kumar (Driver of the offending vehicle) S/o Sh. Manoj Kumar R/o D-791/9, Gali No. 10, Ashok Nagar, Delhi. 2. Manoj Kumar (Owner of the offending vehicle) S/o Sh. Virender Kumar R/o D-791/9, Gali No. 10, Ashok Nagar, Delhi. 3. ICICI Lombard General Insurance Co. Ltd. Office at:- Fourth Floor, Parsavnath Capital Tower, Bhai Veer Singh Marg, New Delhi-110001. ......Respondents Date of filing of DAR: 26.04.2023 Judgment Reserved on: 19.09.2023 Date of Award: 21.09.2023 MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 1 of 39 A W A R D: 1. In the present case, Detailed Accident Report (DAR) was filed by the investigation agency on 26.04.2023 in terms of the provisions of Motor Vehicle Act regarding a Road Traffic Accident, which took place on 26.01.2023, at about 3:30 a.m., at Outer Ring Road, Opposite Rajghat DTC Depot, Delhi, wherein the present injured/petitioner Aas Mohammed @ As Mauhammad had sustained Grievous Injuries, whereas another injured person Nizamudin had sustained Simple Injuries with vehicle i.e. Maruti Suzuki Swift LXI bearing registration No. DL-5CP-1606, driven by respondent no. 1 Vaibhav Kumar, owned by respondent no. 2 Manoj Kumar and insured with respondent no. 3 ICICI Lombard General Insurance Company Ltd. The present petition pertains to petitioner/injured Aas Mohammed @ As Mauhammad. BRIEF FACTS
2. The Facts in brief as emerged from the Detailed Accident Report (DAR) are that on 26.01.2023, present injured/ petitioner Aas Mohammed @ As Mauhammad was posted as ASI at PS Connaught Place and another injured person Nizamudin was posted as HC at PS M.S. Park and they both were on Republic Day Arrangement duty at Zone no. 9 & Zone No. 8 near Kartavya Path and were going on motorcycle no. DL- 5SAM-9095 make Passion Xpro for duty from their house. The said motorcycle was being driven by injured Nizamuddin (in other claim petition), whereas present petitioner/injured Aas Mohammed @ As Mauhammad was a pillion rider. At about 3.30 a.m., when they both were going towards ITO via Kashmiri Gate MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 2 of 39 Bus Terminal and when they reached before U-turn at Outer Ring Road, opposite Rajghat Depot, Delhi, one over speeding car had hit them from behind, as a result of which, both the said police officials fell on the road and the car driver had dragged their motorcycle up to 500 meters. Other police staff, who were going for duty, had stopped the said car and made both the aforesaid police officials to sit in another vehicle. When they reached ahead, they saw that the motorcycle was entangled with the Maruti Swift car bearing registration no. DL-5CP-1606. On inquiry, the name of driver of the offending vehicle was revealed Vaibhav Malik S/o Manoj Kumar, R/o 791/9, Gali No. 10, Ashok Nagar. Both the aforesaid injured were removed to Lok Nayak Hospital, Delhi. GD no. 005A was recorded at PS Darya Ganj at about 03:41:02 hours qua the accident in question. The said GD was marked to SI Jitender Kumar, who along with Ct Ashok reached at the spot, where some pieces of plastic of bumper were found scattered and at a distance of 400 to 500 meters ahead, one Maruti Swift Car bearing registration no. DL-5CP-1606 of white colour and one motorcycle bearing registration no. DL-5SAM- 9095 make Hero X Pro Black Colur, which was entangled underneath the abovesaid car, were found. At the spot, caller PSI Anuj Tomar of PS Vivek Vihar was present, who produced one person named Vaibhav Malik and stated that he was the driver of the said offending car and thereafter the said PSI Anuj Tomar went from there, while stating that he had to go for his duty and that he will give his statement later on. Meanwhile, Ct Kamal came at the spot. Driver of the offending vehicle namely Vaibhav Malik was sent to hospital for the purpose of his medical examination. The spot was got inspected through crime team.
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 3 of 39 The exhibits were taken into possession. Thereafter, SI Jitender Kumar left Ct Ashok at the spot and himself went to Lok Nayak Hospital, Delhi, and collected MLC no. 115131220/23 of Nizamuddin S/o Islamuddin, R/o C-4/235 Brijpuri, wherein alleged history of RTA near Outer Ring Road, at about 3.30 a.m. today, "as told by patient himself" & MLC No. 115131222/23 of Aas Mohammed @ As Mauhammad, wherein alleged history of RTA near Outer Ring Road, at about 3.30 a.m. today, 'told by brought by' was mentioned and they both were found under observation. Injured Nizamuddin had given his written complaint, who was discharged from the hospital and came to PS Darya Ganj along with ASI Jitender Kumar. Ct. Kamal also handed over the MLC and blood sample of Vaibhav Malik (driver of offending vehicle). The blood sample was taken into possession. Thereafter, ASI Jitender Kumar prepared a tehrir and got the FIR of the present case registered u/s 279/337 IPC. During investigation, site plan of the place of occurrence was prepared. Statements of witnesses were recorded. The exhibits were deposited in the malkhana. No CCTV footage qua the incident in question could be found. Respondent no. 1 Vaibhav Kumar (driver of the offending vehicle) was arrested and released on bail. The relevant documents of offending vehicle i.e. Swift Car bearing registration no. DL-5CP-1606 and motorcycle bearing registration no. DL-5SAM-9095 were obtained and were got verified, which were found to be genuine. Mechanical inspection of both the said vehicles was got conducted. The offending vehicle was released on superdari to respondent no. 2 Manoj Kumar S/o Virender Kumar (owner of the offending vehicle) by the orders of Court. Result on the MLCs of both the MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 4 of 39 injured persons was obtained. The nature of injury on the MLC no. 115131220/23 of Nizamuddin was opined to be simple, whereas the nature of injury on the MLC No. 115131222/23 of present petitioner/injured Aas Mohammed @ As Mauhammad was opined to be grievous. As such, Section 338 IPC was added. The owner of motorcycle no. DL-5SAM-9095 failed to produce its insurance, as such, separate proceedings u/s 146/196 M.V. Act were initiated against him. In the medical examination of respondent no. 1 Vaibhav Malik (driver of offending vehicle), the presence of alcohol was detected and as such his blood sample was sent to FSL, Rohini, Delhi, result of which was awaited. Therefore section 185 M.V. Act was added against the respondent no. 1. On completion of investigation,charge-sheet for the offences u/s 279/337/338 IPC & u/s 185 of M.V. Act was filed against respondent no. 1 Vaibhav Malik before the concerned Magisterial Court, whereas DAR was filed before this Tribunal on 26.04.2023. Separate petitions were ordered to be registered qua both the injured persons. The present claim petition pertains to injured/petitioner Aas Mohammed @ As Mauhammad.
2.1. On 05.06.2023, written statement was filed on behalf of respondents no. 1 and 2, wherein they both have claimed that both the injured were plying their motorcycle and discharging their patrolling duties in a jolly mood and due to this, they did not take care for the safety of public at large and continued to drive the motorcycle at a very high speed, rashly and negligently. It is further claimed that the accident in question took place due to negligence of the injured persons, but being the police officials, they falsely implicated the said MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 5 of 39 respondents. It is further claimed that the contents of DAR are imaginary and concocted one and as such the DAR is not maintainable. It is further claimed that the respondent no. 1 was medically examined at Lok Nayak Hospital vide MLC No. 1151131227/23 and he had sustained grievous injuries due to the negligent driving of the injured Nizamuddin and as such he is also victim of the incident dated 26.01.2023. It is further claimed that there is no negligence on the part of the driver of the alleged offending vehicle, therefore, there is no liability to pay any compensation to the alleged injured. It is further claimed that the offending vehicle bearing registration no. DL-5CP-1606 owned by respondent no. 2 Manoj Kumar, is duly insured with respondent no. 3 M/s. ICICI Lombard General Insurance Co. Ltd. vide policy no. 3001/MI-11308665/00/000, valid from 31.08.2022 till 30.08.2023 and as such respondent no. 3 insurance company is liable to indemnify the claim of the present injured/petitioner.
2.2. The respondent no. 3 ICICI Lombard General Insurance Co. Ltd. had admitted that offending vehicle bearing registration no. DL-5CP-1606 was insured with the said respondent vide Policy No. 3001/MI-11308665/00/000 valid from 31.08.2022 to 30.08.2023, in the name of respondent no. 2 Manoj Kumar. It is claimed that respondent no. 1 (driver of the offending vehicle) was under the influence of liquor at the time of incident and hence was charge-sheeted u/s 185 of M.V. Act, which is in violation of terms and conditions of the insurance policy as well as violation of provision of Motor Vehicle Act. It is further claimed that in view of the above facts and MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 6 of 39 circumstances, the insurance company is not liable to compensate the petitioner and also to indemnify the liability of insured.
ISSUES FRAMED
3. On the basis of the pleadings of the parties, vide order dated 12.07.2023, this Tribunal had framed the following issues:
IssueNo.1:Whether the injured/petitioner had suffered grievous injuries in an accident that took place on 26.01.2023, at about 03:30 a.m., at Outer Ring Road, opposite Rajghat DTC Depot, Delhi, involving vehicle bearing registration No. DL-5CP-1606,which was driven rashly and negligently by respondent no.1 Vaibhav Kumar, owned by respondent No. 2 Manoj Kumar and was insured with respondent no.3-ICICI Lombard General Insurance Company Ltd.? (OPP) Issue No. 2:Whether the petitioner is entitled for compensation? If so, to what amount and from whom?(OPP).
Issue No.3: Relief.
EVIDENCE
4. The petitioner/injured had examined himself as PW1 in support of his claim.
4.1. The respondent no. 1 & 2 had examined RW1 Vaibhav Kumar Malik (driver of the offending vehicle) in support of their defence.
4.2. The respondent no. 3-ICICI Lombard General Insurance Company Ltd. had examined R3W1 Ms. Mehak Aggarwal in MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 7 of 39 support of its defence.
4.3. None of the parties have filed any duly filled in Form XIV.
4.4. Financial statement of the petitioner was recorded on 19.09.2023.
4.5. Final arguments have been heard on behalf of the parties.
FINDINGS & OBSERVATIONS
5. I have heard Ld. Counsels for the parties and perused the record.
5.1. My findings on the various issues are as under:-
Issue No.1: Whether the petitioner/injured injured/petitioner had suffered grievous injuries in an accident that took place on 26.01.2023, at about 03:30 a.m., at Outer Ring Road, opposite Rajghat DTC Depot, Delhi, involving vehicle bearing registration No. DL-5CP-1606,which was driven rashly and negligently by respondent no.1 Vaibhav Kumar, owned by respondent No. 2 Manoj Kumar and was insured with respondent no.3-ICICI Lombard General Insurance Company Ltd.? (OPP) 5.2. The onus to prove the issue no. 1 was upon the petitioner. The injured/petitioner Aas Mohammed @ As Mauhammad had examined himself as sole witness to the incident. In his affidavit of evidence Ex. PW1/A, he stated in MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 8 of 39 relevant parts of para nos. 1 to 9 as under:-
1. That I am a claimant who lives at the above-mentioned address and met in a road accident on 26.01.2023 at about 3.30 PM, due to the negligent act and use of the offending vehicle i.e. Swift Car bearing no.
DL-5CP-1606........................................
2. I state that I am working as ASI in Delhi Police, posted at Connaught Place Delhi. The deponent is withdrawing Gross Salary of Rs. 92,438/- per month, while his net salary is Rs. 67,083............................
3. I state that I was working properly on my patrolling duty and was going to Kartavya Path for republic day arrangements on 26.01.2023 at about 3:30 pm. When I was at the Outer Ring Road near Rajghat DTC depot on motorcycle bearing no. DL5SAM9095, which was being riven by Petitioner no.1 and when I reached within the jurisdiction of P.S. Daryaganj central Delhi, in the meanwhile allegedly the offending vehicle bearing no.
DL5CP1606 was driven by respondent no. 1 allegedly in a very high speed, rashly and negligently and he hit our motorcycle from its backside, due to which, I sustained grievous injuries and was sitting behind the motorcycle of petitioner no. 1 and fell down on the road from the motorcycle and the respondent no. 1 dragged motorcycle upto 400-500 meter. (approx). Thereafter the on- duty police staff stopped the respondent's car.
4. I state that during the period, the on-duty Police staff helped us to sit in another car, which took us to Lok Nayak Hospital, where my MLC was done, MLC No. 115131222/23, where I was diagnosed with several grievous injuries, and had a fracture in my left leg and the operation of my leg took place on 27.01.2023, where a supporting iron rod was grafted in my left leg and then I ultimately got discharged on 31.01.2023.............................................
5.I state that due to grievous injuries and MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 9 of 39 the leg which was broken during the accident, I am at complete bed rest till now as per the advice of the doctors and lastly I went for the checkup on 18.05.2023 where the doctors advised me to take bed rest again for another 1 week. I also spent the amount of Rs. 18,646/- on my treatment till date. Other than the medical expenses there are also transport expenses of around Rs.
20,000/- (approx.) which I spent during the travelling to the hospital..........................
6. I state that an FIR was registered at P.S.- Daryaganj, FIR No. 0089/23 u/s 279/337 of IPC and 3/181 of Motor Vehicle Act, 1988 on dated 26.01.2023................................
7. I state that the respondent has caused the accident using the offending vehicle i.e. Swift Car bearing no. DL5CP1606, by driving the offending vehicle rashly, negligently, carelessly, recklessly and without following the Traffic Rules.
8. I state that during the course of the accident, Respondent no.1 was the driver of the offending vehicle and the said vehicle was owned by Sh. Vaibhav Malik S/o Sh.
Manoj Kumar R/o H.No. 791/9, gali no.10, Ashok Nagar, Delhi, hence, the Respondent is liable to pay compensation for the loss caused by the offending act.
9. I state that the claims Rs. 10,00,000/-
(Rupees Ten Lakhs Only) from the Respondents.
.................................................................."
5.3. PW1 has tendered following documents in his evidence:-
i. Copy of Aadhar Card Ex. PW1/1 (OSR). ii. Copy of the salary slip from Jan 2023 to June 2023 supported with certificate U/s 65B Evidence Act, 1881 Ex. PW1/2 (colly) (7 running pages). (objected by Ld. Counsel for R-3 on the mode of proof as those documents were photocopies and computer generated).
iii. Copy of M.L.C. dated 26.01.2023 Ex. PW1/4 MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 10 of 39 (colly).
iv. Copy of treatment record along with OPD slips Ex. PW1/5 (colly) (11 running pages).
v. Original bills of the expenses Ex. PW1/6 (colly) (7 running pages)
vi) The DAR Ex. PW1/7.
5.4. On the other hand, respondent no. 1 Vaibhav Kumar Malik (driver of the offending vehicle) has stated in para nos. 2,3,4,7,18, 19 and 21 of his affidavit of evidence Ex. R1W1/A as under:-
2. I state that, it is alleged by the prosecution on the statement of the complainant that the complainant who is allegedly injured along with his friend Ash Mohd. were on their patrolling duty and they were going to republic day arrangements on 26.01.2023 at about 3.30 PM at : Outer Ring Road, Near Rajghat DTC Depot on their motorcycle bearing No. DL-5SAM-9095 which was being driven by the complainant/injured or when they reached within the jurisdiction of P.S. Darya Ganj, Central Delhi, in the meanwhile, allegedly an offending vehicle bearing No. DL-5CP-1606 being driven by the respondent no. 1 allegedly in a very high speed or rashly or negligently and he hit against the motorcycle of the injured from its backside or due to which, the injured sustained grievous injuries. In fact, the injured and his alleged friend both were plying their motorcycle and discharging their patrolling duties in jolly good mood and due to this, they did not take care to safety of public at large and they continued to drive their motorcycle at a very high speed, rashly and negligently without adopting the traffic rules and norms being police officials and as such, their own negligence, the aforesaid incident had taken place but being police officials, they falsely implicated the deponent. The deponent did nothing in the matter but has falsely implicated on the statement of the MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 11 of 39 complainant. Hence, the deponent should be acquitted from the array of memo of parties.
3. I state that after registration of false, frivolous and concocted alleged FIR based on manipulated facts and circumstances, the police officials filed the DAR in the present case which is not maintainable at the instance of the petitioner, as the DAR is manipulated one. All the contents of the DAR are imaginary and concocted which has been filed by the police officials are fictitious and based on concocted facts and circumstances and as such, the alleged DAR is not maintainable and liable to be dismissed/rejected at once.
4. I state that bare reading of the DAR, the alleged incident as shown not occurred due to the negligent driving of the respondent no.1 but the respondent no. 1 has been falsely implicated by the complainant malafidely. It is further submitted that the respondent no. 1 sustained grievous injuries due to negligent driving of the petitioner. The respondent no.1 was medically examined at Lok Nayak Hospital, New Delhi where his MLC No. 1151131227/23 prepared by the doctor and as such, the respondent no.1 is also victim of the incident dated 26.01.2023. It is a case of self contradiction and doing own wrongs on the part of the injured but without any fair and proper investigation of the police officials, the respondent no. 1 falsely implicated on behalf of the injured in the present false and frivolous litigation in which he has no role to play with the alleged accident....................................
7. I state that the deponent is nowhere liable to pay any compensation to the alleged injured. In fact, the respondent no.1 is a very efficient, skilled and prominent driver and drove the vehicle with valid driving licence issued by the Licensing Authority, so the question of alleged negligent driving of the Respondent no.1 does not arise at all.
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 12 of 39
18. I state that negligence is required to be proved for compensation U/s. 166 of M.V. Act, as the Hon'ble Supreme Court in 2007 (3) RCR (Civil), titled as Oriental Insurance Co. Ltd. V/s. Premlata Shukla & Ors., held that -A Motor Vehicle Act,1988, Section 166-Motor Accident-Claim for compensation-proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine-qua-non for maintaining an application under Section 166 of the Act.
19. I state that in another case titled as Meenu B. Mehta & ors. V/s. Bal Krishan Chander, (1977) 2 Supreme Cout cases 441,held-Proof of negligence is necessary before the owner or the insurance company could be held to be liable for the payment of the compensation in motor accident claim case. Similarly, it is also held by the Hon'ble Supreme Court in the Appeal (Civil) No. 5825/2006 in the case titled as 'The Oriental Insurance Co. Ltd. V/s.
Meena Variyal & Ors.', but in the case in hand, there is no negligence on part of the driver of the alleged offending vehicle, therefore, there is no liability to pay any compensation to the alleged injured.
21. I state that the vehicle in question bearing No. DL-5CP-1606 (CAR) owned by the respondent no.2 is duly insured with M/s. ICICI Lombard General Insurance Co. Ltd.,vide Policy No. 3001/MI-
11308665/00/000, valid w.e.f. 31.08.2022 till 30.08.2023 in the name of Sh. Manoj Kumar, and as such, according to law, the Insurance Company/Respondent No.3 is liable to indemnify the claim of the alleged injured, whereas, no liability could be fastened upon the deponent."
5.5. RW1 has relied upon Ex. R1W1/1 (copy of DL) and R1W1/2 (copy of RC) in his evidence.
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 13 of 39 5.6. R3W1 Ms. Mehak Aggarwal has stated in relevant parts of para no. 2,3 and 4 of her affidavit Ex. R3W1/A as under:-
"2. That the vehicle bearing No. DL-
5CP-1606 was insured with respondent no.3 vide policy bearing No. 3001/MI-11308665/00/000 valid from 31.08.2022 to 30.08.2023 in the name of Mr. Manoj Kumar..............
3. That as per the DAR report which was already exhibited by the petitioner in his evidence, the driver of the alleged offending vehicle was charge sheeted under section 185 of the M.V. Act as he was under the influence of alcohol at the time of the accident and the same was also revealed from the M.L.C. of the driver.
4. That the insurance company sent a notice under O 12 R 08 of Code of Civil Procedure to the Respondent no 1 & 2 i.e. to the driver and owner of the offending vehicle but they are completely failed to respond the same...................................."
5.7. R3W1 has tendered following documents in her evidence:-
i). Policy along with terms and conditions Ex. R3W1/1 (Colly).
ii) Copy of notice to Respondent no. 1 & 2 along with original receipt Ex. R3W1/2 (colly) and its postal receipts Ex. R3W1/3 and Ex. R3W1/4.
5.8. It is well settled that the proceedings before the Claims Tribunal are in the nature of inquiry. In Bimla Devi & Ors. Vs Himachal Road Transport Corporation & Ors [(2009) 13 SC 530, [in Kaushnumma Begum and others V/s MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 14 of 39 New India Assurance Company Limited, [2001 ACJ 421 SC [in National Insurance Co. Ltd. vs. Smt. Pushpa Rana & Ors. cited as [2009 ACJ 287], it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
5.9. The factum of accident and the identity of respondent no. 1 as driver of the offending vehicle stands proved from the testimony of PW1 Aas Mohammed @ As Mauhammad. Nothing substantial was extracted in the testimony of PW1, to demolish his said evidence. Even otherwise admittedly both the injured were unknown to the respondent no. 1 prior to accident and had no enmity with the petitioner and hence it is beyond comprehension as to why the petitioner will implicate the respondent no. 1 falsely, had he not been driving the offending vehicle. Also in reply to notice U/s 133 Motor Vehicle Act, respondent no.2 (owner of offending vehicle) had admitted that Vaibhav Kumar Malik (respondent no. 1 herein) was driving the offending vehicle at the time of accident in question and that the said vehicle was insured with him (respondent no.2). Furthermore, as per the DAR, the offending vehicle i.e. Maruti Swift Car bearing registration no. DL-5CP-1606 was found at the spot, was taken into police possession and was later on released on superdari to respondent no.2, respondent no. 1 Vaibhav Kumar was arrested and was released on bail. Thus, the factum of accident and the identity of respondent no. 1 Vaibhav MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 15 of 39 Kumar as driver of the offending vehicle bearing registration no. DL-5CP-1606, stands established.
5.10. PW1 Aas Mohammed @ As Mauhammad, one of the injured, who is also an eye-witness to the incident, has specifically deposed qua the driving of the offending vehicle bearing registration no. DL-5CP-1606 by respondent no. 1 in a rash and negligent manner and at a high speed, while causing the accident. The perusal of cross-examination of PW1 reveals that he has denied the suggestion that the alleged offending vehicle bearing registration no. DL-5CP-1606 was driven by respondent no. 1 and hit their motorcycle from behind or that the same was plying in a rash and negligent manner or that after the impact they were thrown to 400-500 meters away or that the respondent no. 1 was not driving the vehicle by following all traffic rules and regulations (the word 'not' is mentioned before the word driving in the last sentence but the same appears to be clerical/typographical error). However, the same does not demolish the case of the petitioner in view of the discussion in the preceding para. Furthermore, in the cross-examination conducted on behalf of respondent no. 3 insurance company, RW1/respondent no.1 had admitted that he was charge-sheeted by the police in FIR no. 89/2023, PS Darya Ganj, u/s 279/338 IPC and u/s 185 of M.V. Act. He had further admitted that he had never lodged any complaint before any Court/superior authority of police regarding his false involvement in the present FIR and that he is facing trial in FIR No. 89/2023. RW1 had further admitted that petitioner is not related to him in any manner and he never met with him before the present accident. The plea MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 16 of 39 taken by respondent no. 1/R1W1 is that both the injured persons including the present petitioner were plying their motorcycle and discharging their patrolling duties in a jolly good mood and due to this, they did not take care for safety of public at large and they continued to drive their motorcycle at a very high speed, rashly and negligently, without adopting the rules and norms being police officials and as such, due to their own negligence, the aforesaid incident had taken place. However, during cross- examination, no such suggestion was put to the petitioner that both the injured were discharging their duties in jolly good mood and did not take care of safety of public at large, though it was put to the petitioner/PW1 that Nizamuddin was driving his vehicle in a rash and negligent manner without following traffic rules and regulations. Furthermore, suggestion was given to PW1/petitioner that the present accident was caused by one TATA 407 (vehicle), which fled away from the spot, therefore, PW1 forcibly implicated the driver of Swift car. However, no such plea was taken by the respondent no. 1 either in his WS nor his testimony as RW1. The said TATA vehicle does not find mention either in his WS or in his testimony. Thus, the said respondent has taken inherently contradictory stand in the cross- examination. Furthermore, PW1 has denied the suggestion in the cross-examination that present accident was not caused due to the driver of the Swift car vehicle bearing registration no. DL-5CP- 1606 or that Nizamuddin (another injured person) was driving his vehicle in a rash and negligent manner, without following traffic rules and regulations. Even in his testimony as RW1, the respondent no. 1 has stated that he sustained grievous injuries due to negligent driving of the petitioner and was medically MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 17 of 39 examined at Lok Nayak Hospital, which itself establishes that the accident in question had taken place with the offending vehicle. Had no such accident been taken place, the respondent no. 1 would not have sustained grievous injuries (as claimed by him in his affidavit Ex. R1W1/A). Thus, the testimony of RW1 is not reliable as he had taken inherently contradictory stand in his testimony and cross-examination. The respondent no.1, except for examining himself, has not examined any other witness to substantiate his claim of false implication. No convincing material has been brought on record by respondent no.1 to show that he was not rash and negligent while driving the offending vehicle. From the testimony of PW1, it stands proved that respondent no.1 was rash and negligent in driving the offending vehicle. Furthermore, the mechanical inspection report of the offending vehicle bearing no. DL-5CP-1606 reveals that there were fresh damages on the said car i.e. front bumper was damaged and broken, right front side fender was dented and scratched,front body grill was broken and damaged, both side rear view mirror flap was broken, front bonnet was dented and scratched, front chassis body was dented from lower side, front side mirror was broken, front side radiator, condenser and A/C related some parts were damaged. The mechanical inspection report of motorcycle bearing registration no. DL-5SAM-9095 reveals that its leg guard was bended from left side, front mudguard was broken and damaged, front left side indicator was broken and damaged, back light was broken and damaged, left side back indicator was broken, left side rear body was scratched and broken, rear left side footrest was broken and left side clutch lever was scratched. From the same and on the basis of the site MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 18 of 39 plan, which is also the part of DAR Ex. PW1/7, the principle of res ispa loquitur squarely applies to the facts of the present case qua rashness and negligence on the part of respondent no.1 (driver) in causing the said accident. In this regard, reliance is also placed on the judgment in the case of State of Orissa Vs Nalini Kumar Patnaik, 1989 ACJ 126 Orissa. Furthermore, in view of filing of DAR containing the charge-sheet for the offences u/s 279/337/338 IPC & u/s 185 of M.V. Act & other relevant documents against the respondent no. 1 and in terms of the judgment in the case of "National Insurance Co. Vs. Pushpa Rana & Ors.", 2009 ACJ 287, Delhi, respondent no. 1 (driver of the offending vehicle) is held to be negligent on the basis of preponderance of probability. From the DAR, it is also stands established that respondent no.2-Manoj Kumar was the registered owner of the offending vehicle, which was insured with respondent no.3-ICICI Lombard General Insurance Company Ltd. vide Policy No. 3001/MI-11308665/00/000, valid from 31.08.2022 to 30.08.2023.
5.11. The MLC of the petitioner/injured bearing no. 115131222 prepared at Loknayak Hospital, New Delhi-110002, reveals the alleged history of RTA near outer ring road Rajghat near DTDC Depot at 3.30 a.m. as told by brought by. It further reveals that there was pain and swelling over right side forehead, right knee, left knee and left ankle joint. There was abrasion injury over right side forehead, right knee, left knee and left ankle with swelling. It further reveals that patient was referred to neuro surgery, surgery and ortho and that nature of injury sustained by the petitioner was opined to be grievous in nature.
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 19 of 39 Thus it stands established that the petitioner/injured had sustained grievous injuries in the accident in question.
5.12. Accordingly issues No. 1 is decided in favour of the petitioner and against the respondents.
6. Issue No. 2:Whether the petitioner is entitled for compensation? If so, to what amount and from whom?(OPP).
6.1. The onus of proving the above issue was upon the petitioner/injured.
6.2. The petitioner is claiming total compensation of Rs. 10,00,000/-. In his affidavit of evidence Ex. PW1/A, the petitioner as PW1 has stated in relevant parts of para no. 4 and 5 as under:-
4. I state that during the period, the on-duty Police staff helped us to sit in another car, which took us to Lok Nayak Hospital, where my MLC was done, MLC No. 115131222/23, where I was diagnosed with several grievous injuries, and had a fracture in my left leg and the operation of my leg took place on 27.01.2023, where a supporting iron rod was grafted in my left leg and then I ultimately got discharged on 31.01.2023.............................................
5.I state that due to grievous injuries and the leg which was broken during the accident, I am at complete bed rest till now as per the advice of the doctors and lastly I went for the checkup on 18.05.2023 where the doctors advised me to take bed rest again for another 1 week. I also spent the amount of Rs. 18,646/- on my treatment till date. Other than the medical expenses there are also transport expenses of around Rs.
20,000/- (approx.) which I spent during the travelling to the hospital..........................
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 20 of 39 6.3. He is further placing reliance on computer generated copies of the salary slips from Jan 2023 to June 2023 supported with certificate 65B Evidence Act Ex. PW1/2 (colly) (objected to by Ld. Counsel for respondent no. 3 on the ground of mode of proof being photocopies and computer generated), copy of his MLC dated 26.01.2023 Ex. PW1/4 (colly), copy of treatment record along with OPD slips Ex. PW1/5 and original bills of expenses Ex. PW1/6 (colly).
6.4. The perusal of MLC of the petitioner/PW1 Ex. PW1/4 of Loknayak Hospital, Delhi, reveals that that there was pain and swelling over right side forehead, right knee, left knee and left ankle joint. There was abrasion injury over right side forehead, right knee, left knee and left ankle with swelling. It further reveals that patient was referred to neuro surgery, surgery and ortho and that nature of injury sustained by the petitioner was opined to be grievous in nature. The discharge summary Ex. PW1/5 of the petitioner reveals that he remained admitted in Lok Nayak Hospital, Jawahar Lal Nehru Marg, Delhi, from 26.01.2023 to 31.01.2023. It further reveals that he was diagnosed with fracture of lateral malleli/malleolus (a fracture of lower end of the fibula) and posterior malleoli/malleolus (the posterior portion of the inferior articulating surface of the tibia) with subluxation of left ankle. It further reveals that his surgery was conducted on 27.01.2023 for open reduction and internal fixation with planting with CCS for post in lateral malleolous. It further reveals that the petitioner was also advised high protein diet. The petitioner has also filed the OPD slips (part of Ex.
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 21 of 39 PW1/5) qua his subsequent visits to the hospital bearing the dates 13.02.2023, on which date, he was advised rest for one week, 16.02.2023 advising him further rest of one week, 23.02.2023 advising further rest of two weeks, OPD slip dated 02.03.2023 advising rest of one week, his visits on 06.03.2023 and 07.03.2023 advising rest of two weeks, OPD slip dated 16.03.2023 vide which was directed to come for review after two weeks, 23.03.2023, on which date he was further advised rest for two weeks & review after one week, 06.04.2023 on which date he was further advised rest of two weeks, OPD slip dated 20.04.2023 advising him best rest for two weeks and to revisit on 04.05.2023, OPD slip dated 04.05.2023 advising rest of one week and review after one week, 11.05.2023 advising rest of one week and that he lastly visited the hospital on 18.05.2023,whereby he was declared fit to join duty.
6.5. The petitioner has also placed on record the medical bills Ex. PW1/6 qua the expenses incurred by him on his treatment. The details of the medical bills placed on record by the petitioner are as under:-
S. Bill dated Amount Whether Amount to be No. prescription slip considered to be filed or not paid
1. Receipt bearing S.No. 042 Rs. 1500/- No prescription Nil.
dated 26.01.2023 issued by Kumar Diagnostic Laboratory qua purchase of HIV/HCV/HbsAG/LFT
2. Cash Memo No. 17074 Rs. 980/- No prescription Nil.
dated 27.01.2023 qua
purchase of 02 betadine
surgical SC and one piece of
skin stapler issued by
Haryana Medical Store, shop
opposite GB Panth Hospital,
Delhi.
3. Invoice dated 31.01.2023 Rs. 492/- Yes Rs. 492/-
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 22 of 39
issued by Lookmed, shop
no. 21, near Lok Nayak
Hospital, Asaf Ali Road,
Delhi, qua purchase of
medicines
4. Invoice no. 21053 dated Rs. 415/- Yes. Rs. 415/-
17.02.2023 issued by Kuber
Pharmacy, Shahdara Delhi,
qua purchase of two
medicines Dalacin and
Lizoforce
5. Deepak Gen. Store, Shop no. Rs. 600/- Finds mentioned Rs. 600/-
15, MCD Car Parking, G.B. in discharge
Pant hospital, Nw Delhi, summary
dated 30.01.2023 qua
purchase of walker
6. Invoice no. 140 dated Rs. 13,650/- Finds mentioned Rs. 13,650/-
27.01.2023 issued by in discharge
Surgicare Instruments, summary.
Jhandewalan Extension,
Delhi, qua purchase of
Fibula Sigma Tit 06 hole, TI
2.7 MM LCP 14 MM, 16
MM & 18 MM, TI 3.5 MM
LCP 14, 16, 42 MM and TI
3.5 MM Cortical 40MM and
TIT 4MM CCS 45 MM
7. Invoice No. 22908 dated Rs. 423/- Yes. Rs. 423/-
23.03.2023 issued by Kuber
Pharmacy, Shahdara, Delhi,
qua purchase of Chymoral
Forte Tab
8. Invoice no. A028668 dated Rs. 689/- No prescription Nil.
26.01.2023 issued by Riddhi
Pharma, shop opposite G.B.
Panth Hospital, Delhi, qua
purchase of tab disperzyme
Total Rs. 18,749/- Rs. 15,580/-
6.6. During cross-examination of petitioner as PW1 by respondent no. 3 insurance company, the petitioner has admitted that he received his entire treatment from government hospital. He has denied the suggestion that the medical bills Ex. PW1/6 are forged and fabricated ones and are not related to the present accident. No suggestion was given to the petitioner that he had not spent a sum of Rs. 18,646/- on his treatment till date or that he got re-imbursed the said bills from his department. The total MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 23 of 39 of bills produced on record by the petitioner comes to Rs. 18,749/-. However, as per the aforesaid tabulated form, the petitioner has failed to produce some prescriptions qua the purchase of certain medicines and as such, he can only be compensated only for the bills, for which there are prescriptions available on record. The total of such bills comes to Rs. 15,580/- Hence, a sum of Rs. 15,580/- is awarded as compensation to the petitioner towards medical expenses.
6.7. The petitioner/injured has not claimed any amount towards attendant charges. However, keeping in view the fact that the petitioner/injured had sustained grievous injuries, suffered fracture in his left ankle, implants were grafted in his left leg and was advised bed rest, he must have required the assistance of an attendant. Hence a notional sum of Rs. 10,000/- is awarded under the head of Nursing/Attendant Charges.
6.8. The petitioner has not claimed any amount towards special diet and is only claiming a total compensation of Rs. 10 lakhs. As already discussed in the preceding para that the discharge summary of the petitioner Ex. PW1/5 reveals that he was advised high protein diet. Furthermore, the petitioner had suffered fracture in his left leg, implants were inserted in his left leg and as such, he must have required some special diet and he & his family would have incurred expenses on the same. Considering all these facts and circumstances and the nature of the injury sustained by the petitioner, I am of the considered opinion that petitioner is entitled to notional sum of Rs. 10,000/-
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 24 of 39 under the head of Special Diet.
6.9. The petitioner is claiming a sum of Rs. 20,000/- towards conveyance charges. In the cross-examination, the petitioner/PW1 has admitted that he has not filed any documents to show that he has incurred Rs. 20,000/- in his travelling to the hospital. However, he has denied the suggestion that he had not incurred Rs. 20,000/- in his travelling to the hospital. As already discussed in the preceding para, the petitioner has relied upon the OPD slips, part of Ex. PW1/5 that he has visited the hospital subsequently after his discharge from the hospital on 31.01.2023 on many occasions till 18.05.2023 for review of his injury. The said OPD. Furthermore, admittedly, the petitioner has got his entire treatment from a government hospital and the aforesaid record Ex. PW1/5 is not disputed by the respondent no. 3- insurance company. Hence, the petitioner is awarded notional sum of Rs. 10,000/- towards conveyance charges.
6.10. The petitioner/injured is claiming that he is working as ASI in Delhi Police, posted at Connaught Place, Delhi. He further claimed that he is withdrawing Gross Salary of Rs. 92,438/- per month, while his net salary is Rs. 67,083/-. He further claimed that due to grievous injuries and the leg which was broken during the accident, he is at complete bed rest till now as per the advice of the doctors and lastly he visited for the checkup on 18.05.2023. The OPD slips Ex. PW1/5 reveals that the petitioner was advised rest for total 18 weeks. Further the petitioner has relied upon the salary slips from January 2023 to June 2023. The accident in question took place on 26.01.2023.
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 25 of 39 In the cross-examination, the petitioner has admitted that his salary is increasing from the month of January to June and has voluntarily stated that the cause of increasing of his salary is due to some increment and months containing days 28,30 and 31. He has further admitted that he is getting his full salary regularly during his treatment period and that he has not filed any leave record. He has voluntarily stated that till now the same is not prepared by his office. The petitioner has not placed on record his leave record. He has also admitted that he is getting his full salary during the treatment period. Merely because the petitioner had not examined any duly authorized witness from his department to prove his monthly salary for the month of January, 2023 i.e. month of accident and had merely filed computer generated copy of his salary slip of the said month and merely because Ld. Counsel for respondent no. 3 had objected to the said computer generated copy of salary slip, it cannot be said that the petitioner was not drawing the said salary. The factum of petitioner working as ASI in Delhi Police at the time of accident, has not been disputed by the respondents and further strict rules of evidence are not applicable in this inquiry of MACT claim. Keeping in view the grievous injuries sustained by the petitioner, I hold that the petitioner is entitled to loss of income for two months. The salary slip of petitioner for the month of January, 2023 reveals his total salary as Rs. 92,438/-. The total of two months salary of petitioner comes to Rs. 92, 438/- X 2=Rs. 1,84,876/-.
6.11. Since the petitioner/injured has suffered grievous injuries, suffered fracture in his left ankle and was operated upon MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 26 of 39 and implants were inserted in his left leg, therefore, he must have suffered mental agony, trauma, stress and pain due to the injuries sustained by him in the accident in question. Therefore, a notional sum of Rs. 10,000/- is awarded to the petitioner under each head of "Loss due to Mental & Physical Shock"
& "Pain & Suffering".
6.12. Accordingly, keeping in view the facts and circumstances, the material on record, and the settled principles and guidelines governing the injury cases like the present one, the compensation is being derived in the present case as under:-
NAME OF HEAD AMOUNT (in Rupees) Expenditure on Treatment Rs. 15,580/- Expenditure on Special Diet Rs. 10,000/- (notional)
Expenditure on Nursing/Attendant Rs. 10,000/- (notional) charges Expenditure on Conveyance Rs. 10,000/- (notional) Loss of Income of two months Rs.92,438 x 2 =Rs. 1,84,876/-
Any other loss/expenditure Nil.
Mental & Physical Shock & Pain & Rs. 10,000/-+ 10,000/-= Suffering Rs. 20,000/-
Loss of amenities Nil.
Loss of earning, inconvenience, Nil.
hardship,disappointment, frustration, mental stress, dejectment and unhappiness in future life etc. Total Rs. 2,50,456/-
6.13. I may note that interest @ 9% per annum was awarded by the Hon'ble Apex Court in the case of Municipal MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 27 of 39 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 claimant shall be entitled to interest @ 9% per annum from the date of filing of DAR i.e. from 26.04.2023 till realization.
DISBURSEMENT
7. The Financial Statement of petitioner/injured Aas Mohammed @ As Mauhammad was recorded by this Tribunal 19.09.2023. As per the said statement, the petitioner is working in Delhi Police, his monthly salary is Rs. 90,000/- per month, his family consists of his wife and his son and 03 married daughters. The monthly expenses of his family are Rs. 60,000/- per month.
7.1. Keeping in view the above, I hereby direct that on realization of the award amount of Rs. 50,456/- (Rupees Fifty Thousand Four Hundred & Fifty Six only) plus entire interest amount be released to the petitioner/ claimant Aas Mohammed @ As Mauhammad and the balance amount of Rs. 2,00,000/- (Rupees Two Lakhs only) shall be put in 20 monthly fixed deposits in his name in MACAD account of equal amount of Rs. 10,000/- (Rupees Ten Thousand only) each for a period of 01 month to 20 months respectively, with cumulative interest, in terms of the directions contained in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank situated near the place of his residence 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 MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 28 of 39 such saving account in a bank near his residence with endorsement of the bank that no cheque book facility and ATM card has been issued or if it has been issued the said ATM Card has been withdrawn and shall not be issued without the prior permission of this Tribunal.
7.2. The above FDR(s) shall be prepared with the following conditions as enumerated by the Hon'ble Delhi High Court vide orders dated 07.12.2018 & 08.01.2021 in FAO No. 842/2003 under the title Rajesh Tyagi & Ors. Vs. Jaivir Singh & Ors.:
(i) The bank shall not permit any joint name to be added in the saving account or fixed deposit accounts of the claimants i.e. saving bank accounts of the claimants shall be an individual saving bank account and not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimants.
(iii) The maturity amount of the FDRs be credited by the ECS in the saving bank account of the claimant near the place of their residence.
(iv) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(v) The concerned bank shall not issue any cheque book and/or debit card to claimants. However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank.
(vi) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque books and/or MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 29 of 39 debit card have been issued and shall not be issued without the permission of the Court and the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
7.3. In compliance of the directions given by Hon'ble High Court in FAO No. 842/2003 dated 08.01.2021, Summary of the Award in the prescribed Format-XVI is as under:
SUMMARY OF AWARD:
1. Date of Accident: 26.01.2023
2. Name of the Injured: Aas Mohammed @ As Mauhammad
3. Age of the Injured: 55 years
4. Occupation of the Injured: Security Guard
5. Income of the Injured: Rs. 30,472/-
6. Nature of Injury: Grievous
7. Medical Treatment taken Loknayak Hospital, Delhi.
8. Period of Hospitalization: 26.01.2023 to 31.01.2023
9. Whether any permanent Nil disability? If yes, give details:
COMPUTATION OF COMPENSATION Sr. Heads Awarded by the Claims No. Tribunal
1. Pecuniary Loss:
(i) Expenditure on Treatment Rs. 15,580/-
ii) Expenditure on Special Diet Rs. 10,000/- (notional) MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 30 of 39
(iii) Expenditure on Rs. 10,000/- (notional) Nursing/Attendant charges
(iv) Expenditure on Conveyance Rs. 10,000/- (notional)
(v) Loss of Income of two months Rs.92,438 x 2 =Rs. 1,84,876/-
(vi) Any other loss/expenditure Nil.
vii) Any other loss which may Nil.
require any special treatment or
aid to the injured for the rest of
his life
2. Non Pecuniary Loss
(i) Compensation for mental and
physical shock Rs. 10,000/- + 10,000/-=
Rs. 20,000/-
(ii) Pain and Sufferings
(iii) Loss of amenities of life Nil.
(iv) Disfiguration
Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil
hardships, disappointment,
frustration, mental stress,
dejectment and unhappiness in
future life etc.
3. Disability resulting in loss of earning capacity:
(i) Percentage of disability Nil
assessed and nature of
disability as permanent or
temporary
(ii) Loss of amenities or loss of Nil
expectation of life span on
account of disability
(iii) Percentage of loss of earning Nil
capacity in relation to disability
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 31 of 39
(iv) Loss of future income - Nil (income x % earning capacity x Multiplier)
4. Total Rs. 2,50,456/-
5. Total Compensation Rs. 2,50,456/-
Interest awarded 9%
6. Interest amount upto the date of Rs. 7,514+1,544=
award ( 04 months and 25 Rs. 9,058/-
days)
7. Total amount including Interest Rs. 2,59,514/-
8. Award amount released As mentioned in para
no. 7.1.
9. Award amount kept in FDRs As mentioned in para
no. 7.1.
10. Mode of disbursement of the As mentioned in para
award amount of the no. 7.1.
claimant(s)
11. Next date for compliance of the 27.10.2023
award
Liability:
8. In so far as the liability to pay the award amount is concerned, it is evident from the record that respondent no. 1 Vaibhav Kumar was driving the offending vehicle DL-5CP-1606 under the influence of liquor, which duly owned by respondent no. 2 Manoj Kumar, insured with respondent no. 3-ICICI Lombard General Insurance Co. Ltd. As such, offence u/s 185 of M.V. Act was invoked against respondent no. 1. In this regard, the respondent no. 3 insurance company has relied upon the MLC of the respondent no. 1, wherein it is mentioned that alcohol intake was positive. The said respondent has examined R3W1 Mehak in his evidence, who proved on record policy Ex.
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 32 of 39 R3W1/1 (colly), copy of notices sent to respondents no. 1 and 2 along with original receipts Ex. R3W1/2 (colly) & Ex. R3W1/3 and Ex. R3W1/4. The MLC of respondent no. 1, which is part of DAR, reveals that the alcohol intake of respondent no. 1 was found positive and his blood sample was taken, seized by the IO and was sent to FSL, the report of which is awaited. The Hon'ble Supreme Court in the case of IFFCO Tokio General Insurance Co. Ltd. Vs Pearl Beverages, Special Leave Petition No. 12489/2020, date of decision 12.04.2021, has held in para no. 57 as under:-
"57. In regard to a claim involved in this case as aforesaid, we are of the view that there is nothing in law which would otherwise disentitle the appellant from setting up the case that the exclusion clause would disentitle the respondent from succeeding. As to whether it is a case of driving of the vehicle under the influence of the alcohol is different matter, altogether. The requirement of Section 185 is in the context of a criminal offence. While it may be true that if there is a conviction under Section 185, it would, undoubtedly, fortify the Insurer in successfully invoking Exclusion Clause 2(c), is the reverse also true? We expatiate. If prosecution has not filed a case under Section 185, that would not mean that a competent Forum in an action alleging deficiency of service, under the Consumer Protection Act, is disabled from finding that the vehicle was being driven by the person under the influence of the alcohol. The presence of alcohol in excess of 30 mg per 100 ml. of blood is not an indispensable requirement to enable an Insurer to successfully invoke the clause. What is required to be proved is driving by a person under the influence of the alcohol. Drunken driving, a criminal offence, under Section 185 along with its objective criteria of the alcohol- blood level, is not the only way to prove that the person was under the influence of alcohol. If the Breath Analyser or any other test is not performed for any reason, the Insurer cannot MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 33 of 39 be barred from proving his case otherwise."
8.1. In view of the aforesaid judgment, it is clear that it was no obligatory for the respondent no. 3 insurance company to prove that the driver of the offending vehicle was having more than 30 mg alcohol per 100 mg of his blood at the time of accident, to claim recovery right against the driver and owner of the offending vehicle since as per the MLC of the respondent no. 1 (driver of the offending vehicle), smell of alcohol was positive. Furthermore, respondent no. 1 has failed to bring on record any convincing material on record that he was not under the influence of liquor on the day of the accident, therefore from the DAR and MLC of the respondent no. 1, it stands established on record that the respondent no. 1 was driving the offending vehicle on the day of incident under the influence of liquor. Since the vehicle was duly insured with respondent no.3-ICICI Lombard General Insurance Co. Ltd. on the day of accident, it is respondent no.3, who is ultimately held liable to indemnify the insurance and to pay the compensation amount to the petitioner under the statutory liability. However, the respondent no.3 ICICI Lombard General Insurance Co. Ltd. shall have right to recover the compensation amount from both respondents no. 1 and 2, but after satisfying the award amount.
8.2. Issue No.2 is accordingly decided in favour of the petitioner and against the respondents.
Relief
9. The respondent no. 3-ICICI Lombard General Insurance Co. Ltd. is directed to deposit a sum of Rs.
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 34 of 39 2,50,456/- (Rupees Two Lakhs Fifty Thousand Four Hundred & Fifty Six only) along with interest @ 9% from the date of filing of DAR i.e. 26.04.2023 with the Civil Nazir of this Tribunal within 30 days under intimation to the claimant, failing which the said respondent shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days. However, the respondent no.3 ICICI Lombard General Insurance Co. Ltd. shall have right to recover the compensation amount from both respondents no. 1 and 2, but after satisfying the award amount.
9.1. A copy of this judgment be given to respondent no.3 ICICI Lombard General Insurance Co. Ltd. for compliance within the time granted. The said respondents 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 a copy to the Claimant and his counsel.
9.2. Civil Nazir is directed to place a report on record on 27.10.2023 in the event of non-receipt/deposit of the compensation amount within the time granted.
9.3. Copy of the award be also sent to the court of concerned Metropolitan Magistrate and Delhi State Legal Services Authority (DSLSA).
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 35 of 39 9.4. File be consigned to Record Room.
Announced in the open Court (ASHUTOSH KUMAR) Dated:-21.09.2023 PO, MACT-01, Central District, Tis Hazari Courts, Delhi MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 36 of 39 FORM - XVII COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE MENTIONED IN THE AWARD 1 Date of Accident 26.01.2023 2 Date of filing of Form-I -
First Accident Report 27.01.2023
(FAR)
3 Date of delivery of Form-II
to the victim(s) 26.04.2023
4 Date of receipt of Form-III
from the Driver Verified on 17.03.2023
5 Date of receipt of Form-IV
from the Owner Verified on 17.03.2023
6 Date of filing of the Form-
V-Interim Accident Report 17.03.2023
(IAR)
7 Date of receipt of Form-
VIA and Form VIB from Not mentioned.
the Victim(s)
8 Date of filing of Form-VIII
- Detail Accident Report
(DAR) 26.04.2023
9 Whether there was any
delay or deficiency on the
part of the Investigating No
Officer? If so, whether any
action/direction warranted?
10 Date of appointment of the
Designated Officer by the Not mentioned.
Insurance Company
11 Whether the Designated
Officer of the Insurance Filed on 12.07.2023
Company admitted his
report within 30 days of the
DAR?
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 37 of 39
12 Whether there was any
delay or deficiency on the No.
part of the Designated
Officer of the Insurance
Company? If so, whether
any action/direction
warranted?
13 Date of response of the No legal offer was given.
claimant(s) to the offer of
the Insurance Company.
14 Date of award 21.09.2023
15 Whether the claimant(s)
were directed to open Yes.
savings bank account(s)
near their place of
residence?
16 Date of order by which
claimant(s) were directed to
open Savings Bank 26.04.2023
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 the
passbook of their savings PAN card and Aadhar card
bank account(s) near the produced on 19.09.2023.
place of their residence Time sought for furnishing
alongwith the endorsement, bank passbook
PAN card and Aadhaar
Card?
18 Permanent residential As per Award.
address of the claimant(s).
19 Whether the claimant(s) Time sought for furnishing the
MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 38 of 39
savings bank account(s) is
near their place of bank passbook
residence?
20 Whether the Claimant(s)
were examined at the time Yes. The Financial Statement of passing of the Award to of the claimant was recorded ascertain his/their financial on 19.09.2023 condition?
(ASHUTOSH KUMAR) PO, MACT-01 (Central), Tis Hazari Courts, Delhi 21.09.2023 MACT No. 369/2023 Aas Mohammad Vs Vaibhav Kumar & Ors. Page No. 39 of 39