Delhi District Court
Ranvir Singh vs Musharray on 10 August, 2016
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTH-EAST DISTRICT : KKD COURTS : DELHI
MACT No. 142/12 and MACT New No. 14406/15
FIR No. 947/11, P.S. Loni, Ghaziabad
u/sec 279/337/338 IPC
RANVIR SINGH
S/o Sh. Laxman Singh
R/o U-66,PH-4, Gali no. 2,
Shiv Vihar, Delhi. ....... Petitioner
Versus
1. MUSHARRAY
S/o Sh. Kahva
R/o New Colony, Distt. Baghpat, UP
2. SH. YOGENDAR
S/o Ishwar Singh
R/o Village: Ashok Vihar,
PS Loni,
Distt. Ghaziabad, UP
3. THE NEW INDIA ASSURANCE CO. LTD.
Timber Nagar, Delhi Garh Road,
Hapur 245101,UP
4. SHRI MAHARAJ SINGH
S/o Sh. Ranvir Singh
R/o Village Harnathpur, Kota,
Tehsil & Distt. Hapur , UP
......... Respondents
Through counsel:-
Sh. Upender Singh, Ld. Counsel for the petitioner, Lawyers Ch No. K-56, Tis Hazari Courts, Delhi-
54.
Sh. Mukesh Kumar Malik, ld. Counsel for respondent no. 1 and 2, Ch. No. 605, Civil Court, Ghaziabad.
Ms. Shubhada Khosla, ld. counsel for insurance co. (address not mentioned)
i) Date of Institution of Claim Petition : 31.03.2012
ii) Date of Decision : 10.08.2016 APPLICATION U/S 166 & 140 M.V. ACT 1988 FOR GRANT OF COMPENSATION MACT no. 142/12 Ms. Kiran Bansal Page no. 1/15 AWAR D
1. Petitioner being the injured filed the present claim petition u/s 166 & 140 MV Act seeking the compensation. It is the case of the petitioner that on 13.10.2011 at about 5:10 am, the petitioner was driving the vehicle bearing no. UP 17A 7748 and going from Tronica City to Mau Gorakhpur. When petitioner reached bus stand Delhi Saharanpur Road, at the same time a tractor bearing no. UP 14AB 0619 which was being driven in rash and negligent manner and at a very high speed came from opposite side and hit the vehicle of the petitioner. As a result of which, petitioner sustained crush injuries on his right leg and his right leg was amputated below knee. Petitioner was shifted to GTB Hospital, where his MLC was prepared. Petitioner also suffered various other injuries on his body as per MLC and discharge summary. FIR No. 947/11 u/sec 279/337/338 IPC was also registered at PS Loni Ghaziabad in this respect. It is further stated that petitioner was 39 years of age and was driver by profession.
2. Summons of the petition was issued to the respondents. WS was filed on behalf of respondents no. 1, 2 & 4. Respondent no. 1 in his WS has stated that vehicle was being driven by Musharraf @ Musharray S/o Kalwa R/o New Colony Baghpat, P.S. & Distt. Baghpat and that the accident occurred due to sole mistake and rash and negligent driving of the injured. The averments made in the plaint are denied in general. Though, factum of accident has not been specifically denied. It is stated that the respondent no. 1 was driving his vehicle carefully and had valid and effective DL on the date of accident. WS of respondent no. 2 is more or less on similar lines as that of respondent no. 1. It has not been specifically denied that FIR no. 947/11 was registered at PS Loni (Ghaziabad) UP against respondent no. 1. Respondent no. 2 is the owner of the offending vehicle who has taken the vehicle on superdari. During pendency of the proceedings, an application u/o 1 rule 10 r/w section 151 CPC has been moved for impleading Sh. Maharaj Singh as respondent no. 4 and it is stated that at the time of accident vehicle stood in the name of Sh. Maharaj Singh and the insurance policy in the name of Sh. Maharaj Singh is also issued from 15/02/2011 to 14/02/2012 and the accident occurred on 13/10/2011 and the RC of the offending vehicle was transferred on 19/11/2011. It was therefore, prayed that Sh. Maharaj Singh be impleaded as respondent no. 4. Notice of the application was issued to respondent no. 4 Sh. Maharaj Singh. Ld counsel for the respondent no. 4 appeared and sought time to file WS. WS was filed by respondent no. 4 Sh. Maharaj Singh stating that he had sold the vehicle to respondent no. 2 and vehicle is now transferred in the name of respondent no. 2. He has further MACT no. 142/12 Ms. Kiran Bansal Page no. 2/15 stated that as the vehicle was insured during the period of accident he has no liability. After 01/04/2015 neither ld. Counsel for respondent no. 1,2 and 4 nor respondent no. 1,2 and 4 appeared and no evidence was led on behalf of respondent no. 1, 2 and 4.
3. WS was also filed on behalf of respondent no. 3 stating that vehicle bearing no. UP 14AB 0619 was insured with the respondent no. 3 vide policy no. 32110431100100001798 which is valid from 15.02.2011 to 14.02.2012 in the name of Sh. Yogender S/o Sh. Ishwar Singh.
4. After completion of the pleadings, following issues were framed :
1. Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. UP 14AB 0619 by respondent no. 1 on 13.10.2011 at about 5:00 a.m. at near 2 no. bus stand Delhi-Sharanpur Road, UP within the jurisdiction of PS Loni? OPP
2. Whether petitioner is entitled to compensation ? If so, to what amount and from whom?
3. Relief.
5. Petitioner has examined himself as PW1 and has tendered his affidavit Ex. PW 1/1 and relied upon the documents i.e medical treatment records Ex. PW1/1, disability certificate Ex. PW1/ 2, DL of the petitioner Ex.PW 1/ 3,election identity card of the petitioner Ex. PW1/ 4, Aadhar Card of the petitioner Ex. PW1/5. Dr. Anuj Jain, Sr. Resident, Department of Orthopedic has been examined as PW2, Respondent no. 3 has been examiend Sh. Sunil Kr. Verma as R3W1, Sh. Amit Kumar, Jr. Clerk, RTO Office has been examined as R3W2, Sh. S. V. Singh has been examined as R3W3.
6. I have heard ld. counsel for petitioner and ld. Counsel for insurance and gone through the entire evidence and written submissions on record. My issue wise findings are as below :
7. ISSUE NO. 1Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. UP 14AB 0619 by respondent no. 1 on 13.10.2011 at about 5:00 a.m. at near 2 no. bus stand Delhi-Sharanpur Road, UP within the jurisdiction of PS Loni? OPP Petitioner has examined himself and deposed about the facts in his affidavit. During cross examination he deposed that he was driving his vehicle at the speed of 30 to 35 kmph and the driver of the offending vehicle hit his vehicle. The driver of the offending vehicle fled away from the spot after the accident. Injured in his affidavit has stated that tractor bearing no. UP 14AB 0619 was being driving by the driver at a high speed and in rash and negligent manner which came from wrong side and hit the vehicle with great force. This fact that respondent no. 1 was driver of the offending vehicle on the day of accident is admitted by respondent no. 1 in his WS. However, he has only stated that accident had happened due to negligence of injured. As per FIR, driver of the MACT no. 142/12 Ms. Kiran Bansal Page no. 3/15 offending vehicle had hit the injured while coming from the wrong side. Certified copy of criminal case record shows that chargsheet is filed against Musharaf S/o Kalwa after investigation by the IO. Offending vehicle has been released on superdari to respondent no. 2 by the order of concerned ACJM, Ghaziabad. Site plan corroborates the testimony of injured that the offending vehicle i.e tractor came from wrong side. The mechanical inspection report of the vehicle of the injured bearing no. UP 17A 7748 shows that his vehicle is damaged from front side. Air pressure pipe is broken. Steering rod is broken, front bumper is damaged, front glass of both the doors are damaged. All these documents corroborates the testimony of injured.
Moreover, nothing has come forward in the testimony of PW 1 to disbelieve his version regarding the manner of accident. On the other hand, respondent no.1 /driver has also not stepped into the witness box to state as to how accident occurred and to depose that he was not at fault or was not driving his vehicle on wrong side and was not driving the vehicle in rash and negligent manner or that no accident occurred with his vehicle.
To determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also a settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
Further the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India MACT no. 142/12 Ms. Kiran Bansal Page no. 4/15 Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit.
A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
Therefore, in view of the statement of PW Sh. Ranvir and FIR, it is proved that the petitioner has sustained injuries in the accident which occurred on 13.10.2011 due to rash and negligent driving of offending vehicle bearing no. UP 14AB 0619 driven by its driver. The issue is decided accordingly.
8. ISSUE NO. 2Whether petitioner is entitled to compensation? If so, to what amount and from whom?
It is stated by the petitioner in his statement as well as in chief affidavit that he suffered crushed injuries on his right leg and other bodily injuries and his right leg was amputated. Petitioner was hospitalized in GTB Hospital from 13.10.2011 to 24.10.2011. Injured has suffered compound grade 3 fracture of both leg and crushed injury on half right leg. Right leg was amputated. Wire was affixed on his left foot. Suturing was done on upper lips and NCCT head dated 13/10/2014 study shows that there was swelling in frontal area. Daily dressing was advised to him on 02/11/2011 alongwith other medicine. K wire implanted on the left foot was removed on 09/11/2011. Again dressing was advised to him on 26/11/2011.
Disability:-
Petitioner was allowed to get examined by the GTB Hospital for the purpose of assessing disability and the disability certificate was issued. As per the contents of the disability certificate Ex. PW1/2, petitioner suffers from the permanent disability of 60% of right lower limb. DR. Anuj Jain, Sr. Resident, Department of Orthopedic,GTB Hospital has been examined as PW2 proved the MACT no. 142/12 Ms. Kiran Bansal Page no. 5/15 disability certificate of the patient Ranvir who was examined by a board of doctors on 01.06.2012, the certificate is Ex. PW 1/2.
It is difficult to ascertain in exact terms as to how much the disability in right lower limb has affected the whole body of the petitioner. Counsel for petitioner has argued that as important limb of petitioner is rendered almost non-functional, the functional disability be considered 100% where as the counsel for insurance has argued that whole body disability be reduced to half. Injured herein was a driver and certainly after amputation he cannot be expected to work as driver. Injured does not seem to be educated enough to be employed for even any clerical work. PW2 Dr. Anuj Jain has clearly deposed that injured cannot drive on account of amputation of right side lower limb. He cannot even peddle cycle. During cross-examination he has stated that working capacity of the rest of the body after amputation is reduced. He has further stated that though patient can walk but not normally. He has also stated that injured is not in a position to walk without crutches even with prosthesis.
Considering the age and occupation of the petitioner and the fact, regarding amputation and disability of right lower limb, I am of the opinion that 100% of functional disability can be considered in relation to whole body for the purpose of calculation of future loss of income. Income of deceased:-
As far as income of the petitioner is concerned, it is stated by petitioner in the claim petition that he was driver by profession and was working with Sh. Pankaj Kumar Dixit as driver and earned a sum of Rs. 10,000/-p.m. Perusal of the FIR shows that FIR has been registerd on the complaint of Sh. Pankaj Kumar Dixit being employer of the petitioner. However, no proof regarding the income of the petitioner has been filed . Even the original documents regarding the educational qualification of the injured have not been placed on record. Looking to the fact of the present case, the possible income, in my opinion, of the claimant would be around Rs. 209.46 per day on the date of accident (minimum wages as applicable in UP).
Age of deceased:-
As per the disability certificate dated 01.06.2012, petitioner at the time of examination was aged about 39 years. As per MLC he was 33 years of age on the date of accident. As per the adhar card Ex. PW1/5 the year of birth of injured was 1973. As per the election I card, Ex. PW1/4 injured was 38 years of age as on 01/01/2011. As per the petition, the injured was aged about 39 years and thus, age of the injured is taken to be 38-39 years on the date of accident. Applying the guidelines of the Hon'ble Supreme Court in the judgment reported as "Smt. MACT no. 142/12 Ms. Kiran Bansal Page no. 6/15 Sarla Verma vs DTC 2009 AIR (SC) 3104", the multiplier applicable in the present case is 15, for the purpose of calculating future loss of income.
The law has been well settled that the compensation has to be awarded in disability injury cases under following heads:- (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, injured is further entitled to non-pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries (2) loss of prospects of marriage & (3) loss of expectation of life.
PECUNIARY EXPENSES / COMPENSATION Diet, Conveyance and Attendant Charges:-
Keeping in view the nature of injuries suffered by the Claimant i.e disability of right lower limb and the fact that he was under constant treatment, he would have definitely needed an Attendant to look after him and the claimant is therefore, entitled to attendant charges. Petitioner has not filed any bills to show that he has received help of special attendant however, some family member must have been attending him. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of of Hon'ble Delhi High Court held that a victim cannot be deprived of compensation towards gratuitous services rendered by some of the family members, for the benefit of the tortfeasor. In the circumstances, where the injured had suffered amputation of right lower limb, it is deemed fit that a lump sum of Rs.40,000/- be awarded as compensation towards Attendant charges. Petitioner has not shown anything for spending money on special diet and conveyance but he must have gone for follow up check ups and must have been given special diet for speedy recovery. Thus, Rs. 25,000/- is awarded for special diet and Rs. 20,000/- towards conveyance charges.
Treatment expenses:-
Petitioner has stated that he has spent an amount of Rs. 1,50,000/- on his medical treatment. Treatment record is filed however, no bill has been filed in respect of expenses stated to have been incurred by him in his affidavit and in the absence of any bill in original, the petitioner is not granted any amount under this head.
Future Treatment expenses / Aid:-
Petitioner has stated in his affidavit that he needs an artificial limb for right leg and artificial limb will have to be replaced after every three years. As petitioner is suffering amputation of right MACT no. 142/12 Ms. Kiran Bansal Page no. 7/15 lower limb, need for artificial limb cannot be doubted. The petitioner has not filed any quotation regarding estimate expenditure for implantation of artificial limb. However, Rs. 400,000/- would be just and reasonable compensation towards of cost of artificial limb.
Petitioner is still 40 years of age and certainly would require more than one artificial limb during his life time. Artificial limb would have to be replaced from time to time and some amount would also be incurred on maintenance of artificial limb.
Thus, it is deemed fit that an amount of Rs. 400,000/- be awarded to petitioner towards cost of implantation of the artificial limb and an additional amount of Rs. 100,000/- be awarded towards maintenance cost of artificial limb and future medical expenses etc. As the amount awarded towards implantation of artificial limb and toward its maintenance, cost is calculated as on date and is awarded as per its cost as on date, therefore, petitioner would not be entitled to interest on the above said amount of Rs. 500,000/-. However, petitioner shall be entitled to interest @ 9% on the above said amount of Rs. 500,000/- from the date of the award till it is deposited by insurance co. with the tribunal.
Future loss of income:-
Accordingly, the loss of future income due to disability is calculated as below: Rs. 209.46 X 25 (monthly) X 12 (annual) X 15 (multiplier) = Rs. 9,42,570/- Rs. 9,42,570/- + 4,71,285/- (50% future prospects) = Rs. 14,13,855/- X 100% (disability) = Rs. 14,13,855/-.
NON PECUNIARY EXPENSES:-
In Zahid Khan Vs. Arun Mandal and others, 2016 ACJ 1142 in which injured was labourer and suffered 85% permanent disablement due to amputation of right leg, Rs. 100,000/- was awarded as pain and suffering, Rs. 1,50,000/- for loss of amenities, Rs. 1,75,000/- for amputation of leg and disfigurement, Rs. 200,000/- for artificial limb and Rs. 200,000/- for future medical and other expenses.
Accordingly, compensation is calculated as below:
NON-PECUNIARY COMPENSATION
Compensation towards pain and suffering Rs. 100,000/-
Compensation towards loss of amenities of life Rs.1,50,000/-
Compensation towards disfiguration and Rs.1,50,000/-
amputation of leg
Total non-pecuniary compensation Rs. 400,000/-
MACT no. 142/12 Ms. Kiran Bansal
Page no. 8/15
PECUNIARY COMPENSATION
Loss of Income for 6 months / post accident Rs. 31,419/-
(Rs.209.46 X 25 X 6 )
Loss of future income due to permanent Rs. 14,13,855/-
disability
Compensation towards salary of attendant Rs. 40,000/-
Compensation towards special diet Rs. 25,000/-
Compensation towards conveyance Rs. 20,000/-
Artificial limb Rs.400,000/- Interest not payable
Future Medical expenses such as purchase Rs. 100,000/- Interest not payable
of artificial limb etc.
Total Rs. 20,30,274/-
Thus, the total compensation amount is Rs. 24,30,274/-
9. Liability
Sh. Sunil Kr. Verma has been examined as R3W1, who has brought the attested copy of insurance policy which was originally issued in the name of U. B. I. M. Bagadput, A/c 101088 Sh. Maharaj Singh bearing policy no. 32110431100100001798 w.e.f 15.02.2011 to 14.02.2012 for the vehicle UP 14AB 0619 as a commercial vehicle package policy,which is Ex. R3W1/A. It is further deposed that policy was again endorsed in the name of Mr. Yogender S/o Sh. Ishwar Singh bearing policy no. 32110431100100001798 w.e.f 23.11.2011 to 14.02.2012 for the vehicle bearing no. UP 14AB 0619 which is Ex. R3W1/B and the notice sent to the owner of the vehicle Sh. Yogender through registered AD U/o 12 Rule 8 CPC for producing the original documents I.e original policy, RC, fitness and permit and in relation to the vehicle bearingno. UP 14AB 0619, the copy of the notice is Ex. R3W1/C and postal receipt Ex. R3W1/D, no reply has been received till date by the insurance company or by their counsel. It is further deposed that as per the report of investigator the vehicle is registered for only agricultural purposes and the report of transport department Regional Transport Office, Ghaziabad, UP which mentions the class of vehicle as (agriculture) which is Ex. R3W1/F. It is further deposed that the vehicle being tractor and registered as use for agricultural purposes but it was not being used on the date of accident for the agricultural purpose.
MACT no. 142/12 Ms. Kiran Bansal Page no. 9/15 Sh. Anil Kumar, Jr. Clerk, RTO Office, Ghaziabad, UP has been examined as R3W2, who has brought the registration file of tractor bearing no. UP 14AB 0619 in the name of Maharaj Singh, S/o Sh. Ranvir Singh, R/o harnath Pur, Kota, Tehsil Hapur, Distt. Ghaziabad, UP. It is further deposed that the aforesaid traction was transferred in thename of Yogender, S/o Sh. Ishwar Singh, R/o Village Ashok Vihar, PS Loni, Distt. Ghaziabad, UP on 18.11.2011 and the transfer application has been signed by Mr. Yogender Singh for the transfer of the vehicle bearing no. UP 14AB 0619 has been submitted by Mr. Yogender Singh for purpose of transfer of the vehicle on 17.11.2011 and this RC of the said vehicle has been issued only for the agricultural purposes and for tractor. It is further deposed that it is a mandatory provision that if the tractor is attach with the trolly, a separate registration is required for trolly. It is further deposed that he cannot say if any permit is required for attaching a trolly with the tractor or not. Entire original registration record of the vehicle bearing no. UP 14AB 0619 is Ex. R3W2/A (Colly 26 sheets) Section 2 (44) of The Motor Vehicles Act, 1988 defines a tractor as follows:- "2(44) "tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion) but excludes a road-roller," A light motor vehicle is defined to include a tractor and the relevant provision, namely, Section 2 (21) reads as follows"-
(21) " light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms;".
Similarly, section 2 (47) defines a transport vehicle as follows:-
"transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;"
Section 2 (14) defines a 'goods carriage' as follows:-
"goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;
The Supreme Court in the case of Natwar Parikh & Co. Ltd. vs. State of Karnataka & Ors., 2005 (7) SCC 364 in para 24 held as follows:-
24. ... Therefore, we have to read the words "motor vehicle" in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles etc. A combined reading of the aforestated definitions under section 2, reproduced MACT no. 142/12 Ms. Kiran Bansal Page no. 10/15 hereinabove, shows that the definition of "motor vehicle" includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer.
Therefore, even though a trailer is drawn by a motor vehicle, it by itself being a motor vehicle, the tractor-trailer would constitute a "goods carriage" under section 2 (14) and consequently, a "transport vehicle" under section 2 (47). The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor trailer in the present case falls under Section 2 (14) as a "goods carriage" and consequently, it falls under the definition of "transport vehicle" under Section 2 (47) of the MV Act, 1988." Therefore, the words "motor vehicle" have been defined in the comprehensive sense by the legislature."
This was a case pertaining to a tax levied under the Karnataka Motor Vehicle Taxation Act. The appellant in that case had used the vehicle for transporting over-dimensional cargo and was using a drawing vehicle which the appellant call a 'tractor' to push/pull the loaded trailer. Hence, the vehicle being used therein though described as tractor trailer, was a different kind of vehicle.
The Punjab & Haryana High Court while interpreting the above judgement in the case of Bajaj Allianz General Insurance Co. Ltd vs. Tarun Kaura & Ors (FAO 2887/2008 decided on 02.03.2010) held as follows:-
"The judgement of the Hon'ble Supreme Court cannot be read to mean, that the person holding a driving licence to drive a tractor cannot drive, it with the trolley attached to it. Trolley is an agricultural equipment, therefore, the driver holding a driving licence to drive tractor can always drive tractor along with the trolley".
The Supreme Court in the case of Oriental Insurance Company vs. Brij Mohan, AIR 2007 SC 1971 held that a tractor fitted with a trailer may or may not be a goods carriage. A tractor was meant to be used for agricultural purposes. A trailer attached to the tractor is necessarily required to be used for agricultural purposes, unless registered otherwise. It further mentioned that carriage of vegetables for being agricultural produce would lead to an interference that the tractor was being used for agricultural purposes. The Court further noted that where the tractor and trailer were being used to transport vegetable to the market for purpose of sale, then it could not be termed to be agricultural purpose. Relevant portion of the judgment reads as follows:-
"16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2 (14) of the Motor Vehicles Act.
MACT no. 142/12 Ms. Kiran Bansal Page no. 11/15 The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus necessarily it required to be used for agricultural purposes, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to the market for the purpose of sale thereaof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes...."
Hon'ble Delhi High Court in the case of New India Insurance Company Ltd. vs. Sanjay Singh in MAC. APP. 561/2012 decided on 08/05/2014 has held that a tractor is a LMV and that no separate endorsement is required on the driving licence for driving a tractor and a person having a driving licence for driving LMV can drive a tractor.
As per the contents of FIR offending vehicle was loaded with sand. During cross- examination on 04/04/2016, injured has also stated that at the time of accident, tractor was attached with trolley and the trolley was filled with sand (Reta). In view of the testimony of injured, it is proved that the offending vehicle was not being used for agricultural purpose. No evidence has been led on behalf of respondent no. 1,2 and 4 in rebuttal. It is also proved on record that offending vehicle was purchased by respondent no. 2 before the date of accident and on the date of accident it was respondent no. 2 who was actual owner in possession and respondent no. 2 has taken the vehicle on superdari from the court of concerned Magistrate. Respondent no. 2 has thus, used the vehicle for the purpose other than the agricultural purpose and thus, violated the terms and policy.
However, it is settled law that if the offending vehicle is insured then the insurance company shall first satisfy the award and may thereafter, recover the same from the owner and the driver, as the case may be.
In view of the testimony of R3W1 and R3W2, Insurance Co is entitled to recovery right and it is directed that Insurance Co. shall first satisfy the award and may thereafter, recover the same from respondent no. 2 being the owner of the vehicle.
10. RELIEF Injured was examined as per clause 26 of the Modified Claims Tribunal Agreed Procedure wherein he stated that he is an illiterate and presently unemployed due to amputation of right lower leg below knee. He has a wife and three children in his family. He has stated that the amount he would get from the tribunal will be utilised by him for opening a petty shop of household articles / daily use articles in his residence itself.
MACT no. 142/12 Ms. Kiran Bansal Page no. 12/15 Injured is entitled to an amount of Rs. 24,30,274/-.
Out of the abovesaid award amount, an amount of Rs. 500,000/- alongwith corresponding interest (from the date of award) is be deposited by way of separate cheque and the same be kept in separate account and the amount be utilised for implantation of artificial limbs of the injured and for expenses to be incurred for its repair / replacement in future from time to time.
Accordingly, Respondent no. 3 New India Assurance Company Ltd. is directed to pay a sum of Rs. 19,30,274/- (including interim compensation, if any), by way of depositing cheque in the account of Ranvir Singh, petitioner no. 1 having account in Bank of Baroda, Karawal Nagar,Delhi bearing account no. 41840100009554 along with interest @ 9% per annum from date of filing of the petition (31.03.2012) within 30 days. In default, respondents no.3 shall be liable to pay penal interest on the award amount @ 12% p.a. for the default period. In Reliance General Insurance Co. Ltd. Vs. Vimla Devi, MAC APP. 547/2016 vide its order dated 25/07/2016 Hon'ble High Court of Delhi has observed that "This court is of the view that if the deceased would have been alive, his family members would have received a portion of his income every month and not a lump sum amount at any point of time. The purpose of awarding compensation is to put the family members of the deceased in the same financial position. As such, it would be appropriate to ensure that the family members get reasonable amount of compensation every month like they would have received if the deceased had been alive".
As per clause 28 of the Modified Claim Tribunal Agreed Procedure ,depending upon the financial status and financial need of the claimant, the tribunal has to release the amount as considered necessary and remaining amount be kept in FDR in phased manner. Injured, if would have kept on earning or working, he would have received monthly salary and not lumpsum amount at any point of time.
Bank Manager, Bank of Baroda, Karawal Nagar is thus, directed to keep a sum of Rs. 1,50,000/- in fixed deposit in the following manner and the remaining amount be released in his account.
Sr. No. Duration of FDR Petitioner no. 1 FDR amount
1 1 year 1,50,000/-
2 2 years 1,50,000/-
3 3 years 1,50,000/-
4 4 years 1,50,000/-
5 5 years 1,50,000/-
MACT no. 142/12 Ms. Kiran Bansal
Page no. 13/15
6 6 years 1,50,000/-
7 7 years 1,50,000/-
8 8 years 1,50,000/-
9 9 years 1,50,000/-
10 10 years 1,50,000/-
11 11 years 1,50,000/-
12 12 years 1,50,000/-
Total 18,00,000/-
The Bank shall further comply with following directions :-
(a) The interest on the fixed deposits be paid monthly to the injured.
(b) The monthly interest be credited automatically in the saving account of the claimant.
(c) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs be given to the claimant along with the photocopy of the FDR. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant.
(d) No cheque book be issued to the claimant without permission of the court. However, a photo identity card be issued to the claimant and the withdrawal be permitted upon production of the identity card.
(e) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the court.
(f) The Bank shall not permit any joint name to be added in the savings bank account or fixed deposit accounts of the victim.
(g) Half yearly statement of account be filed by the Bank in the Tribunal. Copy of the award be sent to the Nodal Officer of the Bank of Baroda alongwith the court stamped copy of the photographs, specimen signatures, proof of residence and bank account details of the petitioner. (as per clause 27 of the Modified Claim Tribunal Agreed Procedure).
A separate cheque in the name of PO, MACT , North East for an amount of Rs.500,000/- Lakh alongwih interest 9% per annum from date of award (10/08/2016) be also deposited by the insurance company towards cost of artificial limb within 30 days of the award . In default, respondents no.3 shall be liable to pay penal interest on the abovesaid amount @ 12% p.a. for the default period . The petitioner can approach the present tribunal from time to time for release of the above amount for implantation of the artificial limb. It is further directed that amount shall be MACT no. 142/12 Ms. Kiran Bansal Page no. 14/15 released to Ottobock Healthcare India Pvt. Ltd. directly from tribunal as per bills / quotation received for implantation of the artificial limb and its maintenance from time to time.
Attested copies of the award be furnished to the concerned parties from court for compliance and be sent to the court of concerned Ld. MM & DLSA.
Put up for compliance on 13/09/2016.
Pronounced in Open Court on (KIRAN BANSAL)
10/08/2016 P.O. MACT(North-East)
KKD Delhi
MACT no. 142/12 Ms. Kiran Bansal
Page no. 15/15