Delhi District Court
Anuj Kumar @ Anuj Kumar Premi vs Rahul Kumar on 12 March, 2025
IN THE COURT OF MS. MAYURI SINGH
P.O : MOTOR ACCIDENT CLAIMS TRIBUNAL
EAST DISTRICT : KARKARDOOMA COURTS: DELHI
In the matter of :
MACP No. 463/2019
CNR No. DLET01-003228-2019
1. Anuj Kumar @ Anuj Kumar Premi
S/o- Shri Netra Pal Singh
(Through his wife Smt. Vijay)
R/o- Village & Post Pilkhani,
Uncha Gaon, Tehsil Siana,
District- Bulad Shahar (UP)
.............Petitioner
Versus
1. Rahul Kumar
S/o Sh. Rati Pal Singh
R/o- H.No.10, Ground Floor, Sapera Basti,
Village- Gharoli, East Delhi-96.
2.United India Insurance Co. Ltd. (Insurer)
D-8, 2nd floor, Chandrashekhar Azad Marg,
Laxmi Nagar, Vikas Marg, Delhi-110092.
......................Respondents
Date of Institution : 09.04.2019
Date of reserve for order : 11.03.2025
Date of Judgment : 12.03.2025
AWAR D
1. By this award, claim petition under section 163-A of Motor
Vehicles Act, 1988, would be decided.
2. The important facts of the case are that on 18.06.2018, at about
06:00 a.m. near Bridge Canal/Kali River, Chhatari, Dist. Bulendshahar, U.P,
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when injured alongwith R1 were coming back to his village from Mathura
on motorcycle bearing No. DL-7SCC-1845, being driven by Rahul/R1, an
unknown offending vehicle, all of a sudden came from back side and hit the
motorcycle, resulting in grievous injury to the petitioner, who is presently in
a state of coma. In connection with this accident, FIR No.302/18, u/s
279/338/427 IPC, was registered at PS Chhatari, Bulandshahar, U.P. As per
FIR, at the aforesaid time and place, the deceased was returning from
Mathura alongwith R1 on motorcycle bearing registration No.
DL-7SCC-1845, which was being driven by R1/Rahul (owner of
motorcycle) and injured Anuj Kumar @ Anuj Kumar Premi was pillion
rider on the same. At about 10:00 p.m., when they reached at the aforesaid
place, one unknown vehicle hit the motorcycle and as a result of which, R1
sustained minor injuries, whereas petitioner Anuj Kumar sustained serious
head injuries. Untrace report was filed by the IO in the above-mentioned
connected criminal case, as the offending vehicle and driver could not be
traced out. In view of the above, petitioners claimed a compensation of
Rs.25 lakhs.
3. On service of notice of the petition, R1 marked appearance and
filed copy of the insurance policy on record and further, on application
under Order I Rule 10 CPC as moved by the petitioner, United India
Insurance Company Ltd. was impleaded as R2 and amended memo of
parties was filed on record. Both of the respondents filed their written
statements.
4. Respondent No.1 stated in the written statement that petition is
liable to be dismissed for want of territorial jurisdiction and further that R1
had a valid driving license and insurance policy at the time of accident. It is
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further stated that R1 has no concern with the alleged accident and his
vehicle is falsely implicated and accident was caused by an unknown
offending vehicle. Respondent No.2/ Insurer in its written statement has
mentioned that the FIR was lodged after a delay of 02 months and 5 days
and the informant is not an eye witness. It was further stated that the claim
petition has been filed by petitioner in collusion with R1, who is admittedly
friend of petitioner. It is further mentioned that petitioner has understated
his income with a view to qualify the claim under Section 163A of M.V.
Act. R2 has denied the claim made in the petition for want of knowledge.
5. On the basis of pleadings, following issues were framed on
16.03.2020:-
(i). Whether the petitioner Anuj Kumar @ Anuj Kumar Premi
suffered grievous injuries in a motor vehicular accident
happened on18.06.2018 at 06.00 am near Kali Nadi Pul,
Chhatari Bamba, Distt. Bulandshahar, U.P., within jurisdiction of
PS Chhatari, due to rash and negligent driving of offending
vehicle bearing registration No. DL-7SCC-1845 (motorcycle),
driven by respondent No.1/ Rahul Kumar? (OPP)
(ii). Whether the petitioner is entitled to compensation on
account of said injuries and if yes, to what extent and from
whom? (OPP)
(iii) Whether the petitioner is entitled for interest on the award
amount, if so, at what rate and for which period? (OPP)
(iv). Relief.
6. Petitioner side examined only one witness in support of the
claim. Wife of Petitioner namely Smt. Vijay stepped into the witness box
and deposed on the strength of affidavit Ex.PW1/A about the manner of
accident and relied on the documents i.e. aadhar card, Election Id card and
PAN Card of hers (Ex.PW1/1 to Ex. PW1/3), Aadhar card and election ID
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card of injured (Ex.PW1/4 & 5), educational qualification documents of
injured (Ex.PW1/6), certified copies of criminal record case (Ex.PW1/7) ,
original medical bills and OPD cards(Ex.PW1/8), photocopy of ration card
of PW1 and petitioner ( MARK A) and disability certificate of the petitioner
(Ex.PW1/9) . She was cross-examined by counsels for both the respondents.
7. Respondent side opted not to lead any evidence in their defence.
8. I have heard Sh. H.L. Dagar, learned counsel for petitioner and
and Sh. S. Ghosh, learned counsel for respondent No.2/ insurer. Record of
the case has also been perused. Learned counsel for respondent No.2 /
insurer has not disputed the accident in question. It is also not disputed by
counsel for R-2 that the offending vehicle was duly insured on the date of
accident.
ISSUE NO. 1 :
9. For claiming compensation under section 163A of M.V. Act, the
petitioners are required to establish, first of all, the 'use' of offending
vehicle. In this case, injuries to petitioner Anuj Kumar due to involvement/
use of the unknown offending vehicle and the vehicle on which the injured
was pillion rider, are not in dispute. It is seen that though there is
discrepancy regarding the time of accident and different timing has been
given in the FIR and the claim petition of the petitioner, it is not of any
serious consequence as it is seen that the medical document of the petitioner
shows that he was admitted to JPN Apex Trauma Centre, AIIMS on
19.06.2018 at 07:30 a.m. The FIR specifies that the petitioner had left for
Mathura on 18.06.2018 at 06:00 a.m. in the morning and was returning to
Delhi when accident occurred at about 10:00 p.m. No suggestion to the
contrary was given to PW1. There is no such suggestion to PW1 that
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accident did not occur and further medical documents show that alleged
history of road traffic accident was given to the Doctor. Thus, the assertion
of the petitioner as PW-1 has gone unrebutted. Further, untrace report
corroborates the testimony of PW1. Perusal of mechanical inspection report
of the victim vehicle dated 26.09.2018 shows damages. This also
corroborates the version of the PW1 that the accident had happened due to
the victim vehicle being hit by some unknown offending vehicle. Hence, it
is clear that the accident resulted in the severe head injuries to the victim.
Therefore, on the basis of preponderance of probabilities and appreciation
of evidence on this yardstick, it can be said that injured Anuj Kumar @
Anuj Kumar Premi sustained severe head injuries and other injuries in the
road accident which happened due to collision of an unknown offending
vehicle, which remained untraced, against victim motorcycle. The disability
certificate Ex.PW1/9 reflects that the cognitive impairment spastic
Quadriparesis is mentioned as the affected part of body, under the disability
of chronic neurological conditions and diagnosis is of 'head injury' and
permanent physical/mental disability under the heading of Chronic
Neurological condition is 90 %. Quadriparesis , as per webmd.com is
defined as a condition in which a person has muscle weakness in all four of
his limbs (both legs and both arms). This weakness and diminished mobility
is permanent, in the case of the petitioner, as evident from the disability
certificate Ex.PW1/9. Hence, considering the testimony of PW1 and the
claim petition, supported with the medical documents and disability
certificate, it can be safely deduced that functional permanent disability of
the four limbs of the petitioner is 100 per cent.
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10. The only issue in controversy is whether the insurance company
can be absolved of its liability, if it is found that deceased was at fault
resulting into the accident. Law is well settled that in a proceeding under
Section 163-A of the Motor Vehicle Act, insurance company cannot raise
any defence of negligence on the part of victim to counter the claim of
compensation. Reference can be have to the decisions of Supreme Court of
India in the cases titled as Shivaji & Anr. vs. Divisional Manager, United
India Ins. Co. Ltd. & Ors., 2018 ACJ 2161 and United India Ins. Co. Ltd.
vs. Sunil Kumar, 2018 ACJ 1. Similarly, as the issue of fault on the part of
the deceased cannot be looked into in a claim petition under section 163A of
M.V. Act, it is immaterial to go into the issue whether the rider of the
motorcycle was negligent or not at fault.
11. In view of above, the issue No.1 is decided in favour of
petitioner.
ISSUE NO. 2 :
12. Section 163-A M.V. Act is extracted herein under:-
"Section 163-A. Special provisions as to payment of
compensation on structured formula basis-
(1) Notwithstanding anything contained in this Act or
in any other law for the time being in force or
instrument having the force of law, the owner of the
motor vehicle or the authorized insurer shall be liable
to pay in the case of death or permanent disablement
due to accident arising out of the use of motor
vehicle, compensation, as indicated in the Second
Schedule, to the legal heirs or the victim, as in the
case may be. ......................................"
13. The Second Schedule of M.V. Act has been amended vide
notification bearing No. S. O. 2022 (E) dated 22.05.2018 issued by Ministry
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of Road Transport and Highways and the compensation payable in case of
accident resulting in permanent disability has been fixed at Rs. 5,00,000 x
percentage disability as per schedule I of the Employee's Compensation
Act, 1923. Schedule I of the Employee's Compensation Act, 1923 is
reproduced hereunder:-
Part I
List of injuries deemed to result in permanent total disablement
Percentage of
S. No. Description of Injury loss of earning
capacity
Loss of both hand or amputation at
1. 100
higher sites
2. Loss of a hand and a foot 100
Double amputation through leg or thigh,
3. or amputation through leg or thigh on 100
one side and loss of other foot
Loss of sight to such an extent as to
4. render the claimant unable to perform 100
any work for which eye sight is essential
5. Very severe facial disfigurement. 100
6. Absolute deafness. 100
Part II
List of injuries deemed to result in permanent partial disablement.
Percentage of
Sl No. Description of Injury loss of earning
capacity
Amputation cases-upper limbs (either
1. arm)
Amputation below shoulder with stump
2. less than 20.32 cms from tip of acromion 80
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Amputation from 20.32 cms from tip of
3. acromion to less than 11.43 cms below 70
tip of olecranon
Loss of a hand or of the thumb and four
4. fingers of one hand or amputation from 60
11.43 cms below tip of olecranon
......
Note- Complete and permanent loss of the use of any limb or member referred to in this Schedule shall be deemed to be the equivalent of the loss of that limb or member.
14. It is seen that head injury or mental injury is not mentioned under the description of injuries in schedule I. The petitioner in the present case suffers from permanent disability of nature as defined as cognitive impairment spastic quadriparesion under the 'head chronic neurological disability'. However, needless to say that the mental disability in a given case may also have an impact on the other limbs of the body. Hence, with a view to understand the exact nature of disability and its effects on the four limbs i.e. legs and arms, doctor Anurag Jain was examined as a Tribunal witness. He testified that the disability suffered in the accident by the petitioner is of such a nature and to such an extent that he has limitations on the use of the limbs above-mentioned and he is unable to make intelligent use of those limbs. TW1 also testified that the petitioner cannot make purposeful use of those limbs, suffers from rigidity and stiffness of the limbs and cannot be gainfully employed. It can be safely deduced from the testimony of TW1 that the petitioner might be in a condition to walk with difficulty and with support but the brain injury has rendered him __________________________________________________________________________ MACP No.463/19;
Anuj Kumar @ Anuj Kumar Premi Vs. Rahul Kumar & Anr..; 8 of 11 Pages incapacitated to employ the four limbs to any good use or for day to day activities and work. From a perusal of the schedule, it is seen that under the note of second schedule, where descriptions of various permanent disabilities is given, it is made clear that the complete and permanent loss of the use of any limb, shall be considered as equivalent to the loss of that limb. Hence, the case at hand, in my considered view, qualifies as 100 percent permanent disability on account of the loss of purposeful use of the four limbs i.e. legs and arms. It is a classic case where despite no such apparent physical injuries to legs and arms evident from the medical document of the petitioner, on account of the severe head injuries sustained by him, he is helpless and unable to make use of his all four limbs i.e. two legs and two arms. Needless to say that once petitioner is not in a condition to make best use of his limbs as specified in schedule I of Employee's Compensation Act, despite the limbs being intact, for all practical purpose, it is a case where the petitioner on account of his brain injury suffers from 100 percent permanent disability qua his legs and arms and cannot work. It is further seen that as per notification No. 1829 of Ministry of Road Transport and National Highways dated 22.05.2018, as per the second schedule, paragraph 2, the amount of compensation specified in clause A to C of paragraph No. 1 shall stand increased by 5% annually on and from 01.01.2019.
15. In view of above, it is held that petitioners would be entitled for a compensation of Rs.5,00,000/- (on account of 100 % disability)= Rs.5,00,000+ 5% of Rs. 5,00,000/- annually (i.e. 25,000 x 7 = Rs.1,75,000). Thus, petitioners are granted award in the sum of Rs.6,75,000/-.
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16. Accordingly, the issue No.2 is decided in favour of petitioner and against the respondents.
INTEREST
17. The petitioners have been pursuing this case from the date of filing i.e. 09.04.2019. It is seen that R-1 and R-2 had already put in their appearance and written statement was filed by both. However, PW-1 was not cross-examined by R1 and he stopped appearing since 27.05.2023. Perusal of order further reflects that insurance company put appearance through counsel on the very next date i.e. 20.12.2021. Therefore, petitioner is entitled for interest @ 7.5% per annum on the aforesaid award amount from the date of filing of the petition till date of realization. LIABILITY
18. Now, the question arises as to which of the respondents is liable to pay the compensation amount. As insurance company has contractual and statutory liability to indemnify the insured and in this case, insurance company has not been able to prove that any term or condition of insurance policy was breached/violated by insured, therefore, respondent no.2/insurance company becomes liable to pay the aforesaid compensation amount.
RELIEF :
19. In view of the findings on the issues, this Tribunal awards a compensation of Rs.6,75,000/- (rupees Six Lakhs Seventy Five Thousands Only) alongwith interest @ 7.5% per annum from the date of filing of petition till realization in favour of petitioner and against the respondent no.2/insurer and same is required to be deposited with this Tribunal within 30 days.
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20. Considering the physical and mental condition of the petitioner, the total award amount shall be secured in the form of one FDR for a total sum of Rs.6.75000/- in the name of petitioner and the interest amount on the aforesaid FDR issued in the name of petitioner shall be credited into his saving bank account on monthly basis.
Digitally signed by MAYURI MAYURI SINGH
Date:
SINGH 2025.03.12
17:04:02
+0000
Announced in the open (Mayuri Singh)
Court on 12.03.2025 Presiding Officer-MACT (East)
(Total 11 pages) Karkardooma Courts, Delhi
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