Delhi District Court
Bhuri Singh (Dar) vs Yogesh Kumar (149/19Jp) on 15 April, 2024
IN THE COURT OF MS. SHELLY ARORA
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No. 56/20
FIR no. 149/2019
PS: Jaitpur
U/s 279/337 IPC & 3/181, 5/180 MV Act
CNR No. DLSE01-000317-2020
Bhuri Singh Vs. Yogesh Kumar & Ors.
Bhuri Singh
S/o Sh. Hukam Singh
R/o H.No. 72A, Dharma Shala Wali Gali
Gali no.2 Meethapur, New Delhi.
...Claimants/LRs of deceased
Versus
1. Yogesh Kumar
S/o Laxmi Chand
R/o H. No. 48, Hari Nagar
Village Jaitpur
New Delhi.
..... Driver /R-1
2. Meena Devi
W/o Laxmi Chand
R/o H. No. 48, Hari Nagar
Village Jaitpur
New Delhi.
..... Owner /R-2
MACT No. 56/20 Bhuri Singh Vs. Yogesh Kumar & Ors. Page No. 1 of 24
3. National Insurance Company Limited
2E/09, Jhandewalan Extension, New Delhi.
......Insurance Company/ R-3
.....Respondents
Date of accident : 16.07.2019
Date of filing of DAR : 14.01.2020
Date of Decision : 15.04.2024
AWARD
1. Detailed Accident Report (hereinafter referred as DAR) pertaining to
alleged accident of injured Sh. Bhuri Singh (hereinafter referred as claimant),
by vehicle bearing Reg. No. DL 3SEZ 1873 (hereinafter referred as offending
vehicle), which was driven by its driver Sh. Yogesh Kumar (hereinafter referred
as Respondent No.1) and owned by Smt. Meena Devi (hereinafter referred as R-
2) and insured with National Insurance Company Limited (hereinafter referred
as R-3) was filed by IO HC Ram Avtar in terms of provisions of Motor Vehicle
Act, which is being treated as Claim Petition under Section 166 (1) read with
Section 166 (4) MV Act.
2. Preliminary information regarding accident in question was received at
PS Jaitpur vide DD no. 2A dated 17.07.2019 regarding accident upon receipt of
which HC Ramottar along with Ct. Kalu Ram proceeded to spot of accident as
intimated, at Molarband Road, Meethapur Gaon, Aggarwal Dharamshala Wali
Gali where a new Splendor Silver motorcycle without number plate was found
along with driver Yogesh Kumar, who informed that the injured has been taken
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to hospital by PCR van. In the meanwhile, DD no.7A, dated 17.07.2019 was
received in respect of MLC of injured Bhuri Singh with alleged history of "RTA
Pending investigation and fit for statement" from AIIMS Trauma Center.
Statement of Bhuri Singh was recorded by HC Ramottar at his residence. He
stated that he was walking through the Dharamshala wali gali when a
motorcycle with two boys being speedily driven in a rash and dangerous manner
had hit him because of which he received injury in the right foot and that
motorcyclist had revealed his name to be Yogesh Kumar whereupon police was
informed. FIR was registered. The offending motorcycle was taken into police
possession. Yogesh Kumar was found without DL therefore, appropriate penal
provisions were added. One Ms. Meena, mother of driver Yogesh Kumar was
found to be registered owner of offending vehicle. Injury was opined to be
grievous in nature. Notice under Sec. 133 MV Act was also served upon the
owner who revealed that her son was driving the vehicle. Upon completion of
investigation, charge-sheet was filed under Sections 279/338 IPC and 3/181 MV
Act against Yogesh Kumar and 5/180 MV Act against Ms. Meena (Reg. Owner)
before concerned MM. DAR was filed by Investigating Officer before this
Tribunal.
Reply/ Response:
3. In response to DAR, R-1 & 2 did not file any reply despite opportunity.
4. R-3/Insurance Company filed reply with submissions that offending
vehicle was duly insured in the name of Meena on the date of accident.
However, involvement of the said vehicle in the accident has been doubted upon
on account of certain contradiction in respect of time of call to the police as well
as discrepancy in date of accident. Mention was also made about driver/ R-1
driving the offending vehicle without driving license and even without
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registration.
Issues:
5. From the pleadings of parties, following issues were framed vide order
dated 16.03.2021:
1) Whether the injured suffered injury in a road traffic
accident on 16.07.2019 due to rash and negligent driving of
vehicle no. DL 3SEZ 1873 being driven by R-1, owned by R-2
and insured with R-3? OPP.
2) Whether the petitioners are entitled to any compensation, if
so, to what extent and from whom ? OPP.
3) Relief.
6. Thereafter, matter was listed for PE. Claimant appeared in the witness
box as PW-1 and tendered his examination in chief by way of affidavit
Ex.PW1/A. He relied upon following documents:
Copy of Aadhar Card - Ex.PW1/1
MLC - Ex.PW1/2
Discharge Summary - Ex.PW1/3
Medical Treatment reports as Ex.PW1/4 (colly)
Medical bills Ex.PW1/5 - (colly)
DAR as -Ex.PW1/6
7. Matter was then listed before Ld. Local Commissioner for recording of
remaining evidence. Report of LC was filed as noted in the order dated
15.07.2023. Final arguments were advanced on the same date of hearing. Matter
was then listed for judgment and subsequently again taken up for final
arguments upon transfer of the undersigned. All this while, counsel for
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insurance company never appeared in this case. Noting that there is no formal
submission recorded for closing Respondent Evidence in this matter, notice was
issued to Nodal officer concerned to appear along with counsel to lead evidence,
if any. However, no evidence was led. RE was accordingly closed. Submissions
advanced by counsel for R-1 & 2.
8. On the basis of material on record, evidence adduced and arguments
addressed, issue wise findings are as under :-
ISSUE NO.1
Whether the injured suffered injury in a road traffic accident on
16.07.2019 due to rash and negligent driving of vehicle no. DL 3SEZ
1873 being driven by R-1, owned by R-2 and insured with R-3? OPP.
9. It is well settled that the proceedings before the Claims Tribunal are in the
nature of inquiry and the finding of rash and negligent driving by driver of the
offending vehicle is to be returned only at the touch stone of preponderance of
probabilities. The factors noted above are sufficient to conclude that
preponderance of probability is made out showing negligence of respondent
no.1 in causing the accident.
10. Police after investigation had filed charge-sheet against respondent no.1
U/s 279/337 IPC & 3/181, 5/180 MV Act which is also suggestive of
negligence of respondent no.1 in causing the accident. The IO has filed Detailed
Accident Report before this Tribunal. In National Insurance Co. Vs. Pushpa
Rana 2009 ACJ 287 Delhi, it was laid down that completion of investigation
and filing of chargesheet under relevant section are sufficient proof of
negligence of the driver of the offending vehicle.
11. It is also settled that if driver of offending vehicle does not enter the
witness box, an adverse inference can be drawn against him as observed by
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Hon'ble High Court of India in the case of Cholamandlam insurance company
Ltd. Vs. Kamlesh 2009 (3) AD Delhi 310. In this case also, R-1 / driver has not
adduced any evidence to controvert the affirmation on the part of claimant that
the accident did not occur on account of any negligence on the part of
Respondent no.1.
12. PW-1 has affirmed that he was walking back to his home from his
workplace on 16.07.2019 at about 10.30 pm that the offending vehicle being
driven by R-1 hit him forcefully because of which he sustained grievous injury.
It is evident from the site plan that the vehicle was coming from the opposite
side and had hit the pedestrian from the front. There is nothing to suggest that
there was poor visibility on the street which led to the accident. Further, the area
is presumably a densely populated residential colony, therefore, stray
movements of public persons on the narrow streets is quite expected and thus, it
becomes necessary for any rider to control the speed and manage the driving
lane to be able to safely navigate without harming others on the public way. In
this case, even in the complaint which led to registration of FIR, injured alleged
that the vehicle was being driven dangerously which led to the accident. This
was also affirmed in the evidence led by injured. Counsel for R-1 & 2 chose not
to cross examine the witness on the aspect. R-1 & 2 has not even filed reply to
answer the allegation made as part of DAR. Apart from claimant, it was only R-
1 who could have clarified about the factual matrix of the accident, which he
chose not to do. Nothing has come up during cross examination by counsel for
insurance company which questions the credibility of injured as a witness. The
driver was identified at the spot and was also named in the FIR. Notice under
section 133 MV Act was also served upon owner which also established the
identification of the driver, with no denial on the part of owner about
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involvement of the offending vehicle in the accident. R-3 in its written
statement has raised doubt with respect to presence of bhanja of injured on the
spot which is of no relevance to prove the factum of accident. Mention has also
been raised with respect to date and time particulars mentioned in the MLC in
contrast with the DD entries and the information received in the PS for
registration of FIR. The accident happened as per the statement of injured at
about 10.30 pm on 16.07.2019 whereas time of admission in the Trauma Center
is mentioned to be 2.43 am on 17.07.2019. GD no.2A mentions information
received at 12.10 am on 17.07.2019 by one Sandeep and GD entry no. 7A qua
admission in the Trauma Center by PCR received at 01.43 am. Even though it is
mentioned in the FIR that the information was received at 03.17 am but it also
mentions occurrence of offence at 10.30 pm along with GD entries of receipt of
information and proceeding to spot of accident as well as to the hospital.
Accordingly, there is nothing which does not fit in to the narrative and therefore,
puts the factum of accident in doubt.
13. As such, in view of the evidence proved on record and charge-sheet
against R-1 and that R-1 did not appear in the witness box to deny the rash and
negligence on the part of driver, in backdrop of the discussion made above,
nothing remains in contention any further. It is held that rash and negligent
driving of the offending vehicle was responsible for causing injuries to Bhuri
Singh. Issue No.1 is decided accordingly, in favour of the petitioner and against
respondent.
ISSUE NO. 2
ii). Whether the petitioner is entitled to any compensation, if so, to what
extent and from whom?OPP
14. Section 168 MV Act enjoins the Claim Tribunals to hold an enquiry into
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the claim to make an effort determining the amount of compensation which
appears to it to be just and reasonable. Same is reproduced hereunder for ready
reference:
"(1) Award of the Claims Tribunal.--On receipt of an application
for compensation made under section 166, the Claims Tribunal
shall, after giving notice of the application to the insurer and
after giving the parties (including the insurer) an opportunity of
being heard, hold an inquiry into the claim or, as the case may be,
each of the claims and, subject to the provisions of section 162
may make an award determining the amount of compensation
which appears to it to be just and specifying the person or
persons to whom compensation shall be paid and in making the
award the Claims Tribunal shall specify the amount which shall
be paid by the insurer or owner or driver of the vehicle involved
in the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for
compensation under section 140 in respect of the death or
permanent disablement of any person, such claim and any other
claim (whether made in such application or otherwise) for
compensation in respect of such death or permanent disablement
shall be disposed of in accordance with the provisions of Chapter
X.
(2) The Claims Tribunal shall arrange to deliver copies of the
award to the parties concerned expeditiously and in any case
within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is
required to pay any amount in terms of such award shall, within
thirty days of the date of announcing the award by the Claims
Tribunal, deposit the entire amount awarded in such manner as
the Claims Tribunal may direct."
15. Before putting in frame the position of law, it is noted that the process of
determining the compensation by the court is essentially a very difficult task
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and can never be an exact science. Perfect compensation is hardly possible,
more so in claims of injury and disability. (As observed by Hon'ble Supreme
Court of India in the case of Sidram Vs. The Divisional Manager United
India Insurance Company Ltd, SLP (Civil) No. 19277 of 2019).
16 The basic principle in assessing motor vehicle compensation claims, is to
place the victim in as near a position as she or he was in before the accident,
with other compensatory directions for loss of amenities and other payments.
These general principles have been stated and reiterated in several decisions.
[Support drawn from Govind Yadav v. New India Insurance Co. Ltd., (2011)
10 SCC 683] .
17. This Tribunal has been tasked with determination of just compensation.
The observation of Hon'ble Supreme Court of India in Divisional Controller,
KSRTC v. Mahadeva Shetty and Another, (2003) 7 SCC 197, needs mention
here (para 15):
"Statutory provisions clearly indicate that the compensation must
be "just" and it cannot be a bonanza; not a source of profit but
the same should not be a pittance. The courts and tribunals have
a duty to weigh the various factors and quantify the amount of
compensation, which should be just. What would be "just"
compensation is a vexed question. There can be no golden rule
applicable to all cases for measuring the value of human life or a
limb. Measure of damages cannot be arrived at by precise
mathematical calculations. It would depend upon the particular
facts and circumstances, and attending peculiar or special
features, if any. Every method or mode adopted for assessing
compensation has to be considered in the background of "just"
compensation which is the pivotal consideration. Though by use
of the expression "which appears to it to be just", a wide
discretion is vested in the Tribunal, the determination has to be
rational, to be done by a judicious approach and not the outcome
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of whims, wild guesses and arbitrariness.. ..."
18. Delineating the damages as pecuniary and non pecuniary, Hon'ble
Supreme Court of India, in case of R. D. Hattangadi Vs. Pest Control (India) Pvt
Ltd, 1995 AIR 755, made following observations:
"9....while fixing an 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. In order to appreciate two
concepts pecuniary damages may include expenses incurred by
the claimant: (i) medical attendance; (ii) loss of earning of profit
up to the date of trial; (iii) other material loss. So far 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
variety of matters i.e. on account of injury the claimant may not
be able to walk, 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."
19. Certain principles for delineating just compensation were enumerated in
the case of Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343, by Hon'ble
Supreme Court of India. Following observations are relevant in the context:
"40.General principles relating to compensation in injury cases
5. The provision of the Motor Vehicles Act, 1988 ("the Act", for
short) makes it clear that the award must be just, which means
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that compensation should, to the extent possible, fully and
adequately restore the claimant to the position prior to the
accident. The object of awarding damages is to make good the
loss suffered as a result of wrong done as far as money can do so,
in a fair, reasonable and equitable manner. The court or the
Tribunal shall have to assess the damages objectively and exclude
from consideration any speculation or fancy, though some
conjecture with reference to the nature of disability and its
consequences, is inevitable. A person is not only to be
compensated for the physical injury, but also for the loss which
he suffered as a result of such injury. This means that he is to be
compensated for his inability to lead a full life, his inability to
enjoy those normal amenities which he would have enjoyed but
for the injuries, and his inability to earn as much as he used to
earn or could have earned. [See C.K. Subramania Iyer v. T.
Kunhikuttan Nair [(1969) 3 SCC 64 : AIR 1970 SC 376] , R.D.
Hattangadi v. Pest Control (India) (P) Ltd. [(1995) 1 SCC 551 :
1995 SCC (Cri) 250] and Baker v. Willoughby [1970 AC 467 :
(1970) 2 WLR 50 : (1969) 3 All ER 1528 (HL)] .]
6. The heads under which compensation is awarded in personal
injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would
have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of
the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
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(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded
only under heads (i), (ii)(a) and (iv). It is only in serious cases of
injury, where there is specific medical evidence corroborating the
evidence of the claimant, that compensation will be granted
under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of
future earnings on account of permanent disability, future
medical expenses, loss of amenities (and/or loss of prospects of
marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under
Item (ii)(a) do not pose much difficulty as they involve
reimbursement of actuals and are easily ascertainable from the
evidence. Award under the head of future medical expenses--Item
(iii)--depends upon specific medical evidence regarding need for
further treatment and cost thereof. Assessment of non-pecuniary
damages--Items (iv), (v) and (vi)--involves determination of
lump sum amounts with reference to circumstances such as age,
nature of injury/deprivation/ disability suffered by the claimant
and the effect thereof on the future life of the claimant. Decisions
of this Court and the High Courts contain necessary guidelines
for award under these heads, if necessary. What usually poses
some difficulty is the assessment of the loss of future earnings on
account of permanent disability--Item (ii)(a). We are concerned
with that assessment in this case."
20. It is settled proposition of law as held in catena of judgments that "just
compensation" should include all elements that would go to place the victim in
as near a position as she or he was in, before the occurrence of the accident.
Whilst no amount of money or other material compensation can erase the
trauma, pain and suffering that a victim undergoes after a serious accident, (or
replace the loss of a loved one), monetary compensation is the manner known to
law, whereby society assures some measure of restitution to those who survive,
and the victims who have to face their lives.
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21. PW-1/ injured deposed that he was doing private job and earning Rs.
20,000/- per month, however, he has not filed any documentary proof in support
of the income. He has also not mentioned the nature of job he was engaged in.
There is nothing filed on record about any educational or technical qualification
of injured either. As per Aadhar Card Ex.PW1/1, he was resident of Badarpur,
Delhi as such his income is assessed as per minimum wages for unskilled
workman for Delhi at the time of accident which was Rs. 14,468/- per month.
22. He further deposed in his affidavit that due to accident, he became
permanently disabled and is unable to do his routine work. He further deposed
that he lost his job after accident as he received on bed rest. He also deposed
that he has not been working past accident. However, no such document/
prescription found on record to prove his deposition. The only treatment
documents, except medical bills, filed on record are discharge summary of
JPNA Trauma Center, AIIMS (Ex.PW1/3) and of Neelkanth Mahadev Hospital
(Ex.PW1/5) wherein same day discharge has been mentioned in the Discharge
Summary of JPNA, Trauma Center AIIMS and 1 day hospitalization is
mentioned in the Discharge Summary of Neelkanth Mahadev Hospital. Injured
never moved any application for assessment of disability to prove any
disablement further there is nothing on record to suggest that he was completely
bed ridden or out of job. However, considering the nature of injury and duration
as can be gathered from medical treatment history, loss of income is assessed
for at least 3 months.
23. Having regard to the law as also discussed above regarding
compensation, in the present case award amount is calculated as under:
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Sl. no. Pecuniary loss : - Quantum
1. (i) Expenditure on treatment : Rs. 28,000/-
Claimant has proved medical bills as
Ex.PW1/5 (colly) totaling of Rs.
28,000/-
(ii) Expenditure on Conveyance : Rs. 15,000/-
Claimant has deposed in his evidentiary
affidavit that he has spent Rs. 1,00,000/-
on conveyance, however, there is no
supporting bill has been filed. It seems
that amount claimed under conveyance is
excessive and exaggerated without any
basis, however, however, considering the
nature of injury, it can be considered that
claimant would not have been in a
position to use public transport.
(iii) Expenditure on special diet: Rs.15,000/-
Claimant has also deposed that he had
spent Rs. 1,00,000/- on special diet
which also suggest that same is
exaggerated without any basis or
supporting bill. Therefore, by guess
work, compensation can be awarded for
special diet.
(iv) Cost of nursing / attendant : It is
also deposed by claimant in his Rs.15,000/-
evidentiary affidavit that he has spent Rs.
3,00,000/- towards nursing /attendant
charges. No bill has been filed or proved
by claimant related to cost of attendant.
There was prescription of any doctor
which suggests that claimant was unable
to do his routine job or he was in need of
attendant for his day to day functioning.
It is also unreasonable for a person, to
spent Rs. 3,00,000/- on attendant charges
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having income of Rs. 20,000/- only.
However, considering that the nature of
injuries are grievous even in the absence
of documentary proof, compensation for
attendant's charges is to be given even if
services were rendered by family
members.
(v) Loss of income : Rs.43,404/-
Compensation towards loss of income,
as noted above is Rs.14,468/- x 3 months
= Rs. 43,404/-
(vi) Cost of artificial limbs (if NA
applicable) :
(vii) Any other loss / expenditure : NA
2. Non-Pecuniary Loss :
(I) Compensation of mental and Rs.30,000/-
physical shock : The nature of injuries
are grievous and he would have
undergone great mental and physical
shock.
(ii) Pain and suffering : Compensation Rs. 30,000/-
for pain and suffering is to be awarded
keeping in mind the nature of injuries
suffered by the petitioner.
(iii) Loss of amenities of life : The Rs.10,000/-
nature of injuries are grievous
(iv) Disfiguration : Nil
(v) Loss of marriage prospects : Nil
3. Disability resulting in loss of earning
capacity
(I) Percentage of disability assessed N/A
and nature of disability as permanent
or temporary
(ii) Loss of amenities or loss of Already granted
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expectation of life span on account of
disability : The nature of injuries are
grievous
(iii) Percentage of loss of earning N/A
capacity in relation to disability: As
already discuss above.
(iv) Loss of future Income: N/A
(v) Future medical expenses Nil
Total Compensation Rs.1,86,404/-
Deduction, if any, Nil
Total Compensation after deduction Rs.1,86,404/-
Interest As directed
below
24. It may be noted that in the judgment of Ram Charan & Ors. Vs. The
New India Assurance Co. Ltd., MAC Appeal no. 433/2013, decided on
18.10.2022 it was noted regarding rate of interest:
"25 to evaluate the submission made by counsel for the
applicants, it is imperative to examine the guiding principles for
the grant of interest. In Abati Bezbaruah Vs. Geological Survey of
India, (2003) 3 SCC 148, the following was held while
interpreting section 171 of the MV Act, 1988:-
Three decisions were cited before us by Mr. A. P. Mohanty,
learned counsel appearing on behalf of the Appellant, in support
of his contentions. No ratio has been laid down in any of the
decisions in regard to the rate of interest and the rate of interest
was awarded on the amount of compensation as a matter of
judicial discretion. The rate of interest must be just and
reasonable depending upon the facts and circumstances of each
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case and taking all relevant factors including inflation, change of
economy, policy being adopted by Reserve Bank of India from
time to time, how long the case is pending, permanent injuries
suffered by the victim, enormity of suffering, loss of future income,
loss of enjoyment of life etc. into consideration. No rate of interest
is fixed under Section 171 of the MV Act 1988. Varying rates of
interest are being awarded by Tribunals, High Courts and the
Supreme Court. Interest can be granted even if a claimant does
not specifically plead for the same as it is consequential in the eye
of the law. Interest liability is compensation for forbearance or
detention of money and that interest being awarded to a party
only for being kept out of the money which ought to have been
paid to him. No principle could be deduced nor can any rate of
interest be fixed to have a general application in motor accident
provision under Section 171 giving discretion to the Tribunal in
such matter. In other matters, awarding of interest depends upon
the statutory provisions mercantile usage and doctrine of equity.
Neither Sec. 34 CPC nor Sec. 4-A(3) of Workmen's Compensation
Act are applicable in the matter of fixing are of interest in a claim
under the Motor Vehicles Act. The courts have awarded the
interest at different rates depending upon the facts and
circumstances of each case. Therefore, in my opinion, there
cannot be any hard and fast rule in awarding interest and the
award of interest is solely on the discretion of the Tribunal of the
High Court as indicated above."
25. Having regard to the prevailing rate of interest and the judgments of
Hon'ble Supreme Court of India, including in the case of Erudhaya Priya vs
State Express Transport decided on 27 July, 2020, Civil Appeal Nos. 2811-
2812 OF 2020 [Arising out of SLP (C) Nos.8495-8496 of 2018], which is three
Judges Bench judgment of Hon'ble Supreme Court, such interest @ 9% per
annum is deemed fit and accordingly granted in the present case from the date
of filing of DAR till realization.
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Liability :-
26. The defence raised by insurance company/ R-3, apart from questioning
the involvement of offending vehicle in factum of accident is that the driver of
the offending vehicle in question was not having a valid driving license at the
time of accident to drive such vehicle and was also without registration
certificate. It is evident from record that the offending vehicle was purchased
few days prior to accident and therefore, there was no permanent registration
number assigned to the vehicle on the date of accident, however, there is
nothing mentioned that even temporary registration number was not assigned.
No evidence has been led on behalf of insurance company to prove that the
vehicle was without even temporary registration as applicable under relevant
rules. Further the owner has not been charge sheeted for letting his vehicle plied
on a public way without registration and therefore by any means, it cannot be
concluded against R-1 & R-2 that an unregistered vehicle was being driven on a
public way. Similarly, no evidence has been adduced to show that R-1 was
without any valid and effective driving license on the date of accident. There is
nothing on record to show that any notice under Order XII Rule 8 CPC was ever
served upon the driver calling upon him to place on record the Driving License,
if any. There is nothing brought on record to show that the accident happened on
behalf of insurance company to show that not only the driver was without
driving license rather non possession of driving license was the fundamental
reason for the occurrence of the accident and therefore, the insurance company
can avoid its liability towards the insured. The observations of Hon'ble
Supreme Court of India made in case of Amrit Paul Singh And Another Vs.
Tata AIG General Insurance Company Limited And Others . [ (2018) 7
MACT No. 56/20 Bhuri Singh Vs. Yogesh Kumar & Ors. Page No. 18 of 24
Supreme Court Cases 558 : (2018) 3 Supreme Court Cases (Cri) 255 :(2018) 3
Supreme Court Cases (Civ) 677 : 2018 Scc Online Sc 548] as relevant in this
context are reproduced hereunder:
"..To avoid its liability towards the insured, the insurer has to prove that
the insured was guilty of negligence and failed to exercise reasonable care
in the matter of fulfilling the condition of the policy regarding use of
vehicles by a duly licensed driver or one who was not disqualified to drive
at the relevant time.
***
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act."
27. In view of the above, whole liability falls on the shoulder of insurance company itself. Insurance Company is thus liable to pay compensation to claimant with simple interest @ 9% p.a. from the date of filing of DAR till actual realization. (If there is any order regarding excluding of interest for specific period same be complied at the time of calculation of award amount).
28. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 00000042706870765, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the petitioner.
MACT No. 56/20 Bhuri Singh Vs. Yogesh Kumar & Ors. Page No. 19 of 24 MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
29. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annuity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
30. Another issue which is to be decided is out of such Award amount, how much is to be released at present and how much is to kept in the form of FDR for future financial used of the petitioner.
31. At this stage, it is relevant to the refer to the judgment of A. V. Padma & Ors. Vs., R. Venugopal & Ors. (2012) 3 Supreme Court Cases 378:
"......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. MACT No. 56/20 Bhuri Singh Vs. Yogesh Kumar & Ors. Page No. 20 of 24 to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi- illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit.
The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos. (i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No.
(i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semi literate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only MACT No. 56/20 Bhuri Singh Vs. Yogesh Kumar & Ors. Page No. 21 of 24 to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him. The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice....."
32. In this background of legal position, it may be noted that in present case, MACT No. 56/20 Bhuri Singh Vs. Yogesh Kumar & Ors. Page No. 22 of 24 accused suffered injury and incurred expenses including on medical expenses, special diet, conveyance. Further, in the considered view of this Tribunal, the purpose of such Award is to compensate the petitioner for the financial loss already sustained that is to reimburse the same, in the same manner in which he would have otherwise earned.
33. Keeping in view the entirety of the facts and circumstances involved in the present case and the above-said guidelines laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court, entire award amount of Rs.1,86,404/- along with interest, be released to the petitioner/injured in his bank account near his place of residence as per rule/ directions.
FORM -VI-B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 16.07.2019 2 Name of injured Bhuri Singh 3 Age of the injured 32 years 4 Occupation of the Not proved.
injured 5 Income of the injured Minimum wages applicable in Delhi for unskilled person on the date of accident to the tune of Rs.14,468/- shall be applicable 6 Nature injury Grievous 7 Medical treatment As per record.
MACT No. 56/20 Bhuri Singh Vs. Yogesh Kumar & Ors. Page No. 23 of 24 taken by the injured:
8 Period of As per record.
Hospitalization 9 Whether any No. permanent disability?
34. Copy of this award be given to the parties free of cost. The copy of award be also sent to the DLSA and Ld. Metropolitan Magistrate.
35. Put up on 15.05.2024 for compliance.
Announced in the open court on 15.04.2024 Shelly Arora PO (MACT)-02, SE/Saket/Delhi 15.04.2024 MACT No. 56/20 Bhuri Singh Vs. Yogesh Kumar & Ors. Page No. 24 of 24