Delhi District Court
Raghuvir vs . Akhilesh Kumar & Ors. on 4 April, 2018
Raghuvir Vs. Akhilesh Kumar & Ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
JUDGE, MACT-1 (CENTRAL), THC, DELHI.
Suit no. 502/15
MACT No. 356911/16
Unique Case ID No. DLCT01-002115-2015
Sh. Raghuvir
S/o Sh. Ram Lal,
R/o C-220, Ganga Vihar,
Gokalpuri, Delhi.
........Petitioner
VERSUS
1. Sh. Akhilesh Kumar,
S/o Sh. Kanwarpal Singh,
R/o New Brij Vihar, Colony,
Near Mundera Mandi, Allahabad, UP.
...........Respondent No.1
(Driver)
2. M/s Kunwar Enterprises Pvt. Ltd. Through:-
Sh. Kanwarpal Singh, S/o Sh. Harbhajan Singh, Managing Director, C-73, Sec. -10, Noida, UP ...........Respondent No.2 (Owner)
3. The New India Assurance Co. Ltd.
Level-5, Tower-II, Jeevan Bharti Building, 124, Connaught Place New Delhi.
MACT No. 356911/16 (Old Suit N. 502/15) Page No. 1 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
And also at:-
New India Insurance building, 87 MG Road, Fort, Mumbai.
...........Respondent No.3 (Insurer) Date of filing of DAR : 05.12.2015 Arguments heard on : 23.02.2018 Date of passing of Award : 04.04.2018 Present: Sh. Jitender Kumar, Advocate, counsel for the petitioner Respondent No. 1 is ex-parte.
Sh. Rajesh Shrivastva, Advocate, counsel for respondent no. 2 Sh. Suman Sharma, Advocate, counsel for respondent No.3 FORM- V COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 16.04.2013
2. Date of intimation of the accident by 18.04.2013 the Investigating Officer to the Claims Tribunal. (Clause 2)
3. Date of intimation of the accident by 17.04.2013 the Investigating Officer to the Insurance Company. (Clause 2)
4. Date of filing of Report under Section Not mentioned on 173 Cr.P.C. before the Metropolitan DAR Magistrate. (Clause 10) MACT No. 356911/16 (Old Suit N. 502/15) Page No. 2 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
5. Date of filing of Detailed Accident 05.12.2015 Information Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the 05.12.2015 Insurance Company. (Clause 11)
7. Date of service of DAR on the 05.12.2015 claimant(s). (Clause 11)
8. Whether DAR was complete in all Yes respects? (Clause 16)
9. If not, whether deficiencies in the NA DAR removed later on?
10. Whether the police has verified the Yes documents filed with DAR? (Clause 4)
11. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/ direction warranted?
12. Date of appointment of the Designated 13.01.2016 Officer by the Insurance Company. (Clause 20)
13. Name, address and contact number Sh. Vikas Shokin of the Designated Officer of the Adv. AB-18, Insurance Company. (Clause 20) Miyawali Nagar, Paschim Vihar, New Delhi-87 Mob. No. 9212766999
14. Whether the Designated Officer of the No Insurance Company submitted his report within 30 days of the DAR?
(Clause 22)
15. Whether the Insurance Company No admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with MACT No. 356911/16 (Old Suit N. 502/15) Page No. 3 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
law.(Clause 23)
16. Whether there was any delay or deficiency on the part of the No Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) to -
the offer of the Insurance Company. (Clause 24)
18. Date of the award. 04.04.2018
19. Whether the award was passed with No the consent of the parties?(Clause 22)
20. Whether the claimant(s) were directed Yes to open savings bank account(s) near their place of residence? (Clause 18)
21. Date of order by which claimant(s) 04.04.2018 were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s).(Clause 18)
22. Date on which the claimant(s) Not yet produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card? (Clause 18)
23. Permanent Residential Address of the As mentioned in Claimant(s)(Clause 27) award
24. Details of savings bank account(s) of A/ No. the claimant(s) and the address of the 3632690357, bank with IFSC Code.(Clause 27) CBI, Kashmiri Gate, Delhi IFC- Not CBIN0280291
25. Whether the claimant(s) savings bank No MACT No. 356911/16 (Old Suit N. 502/15) Page No. 4 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
account(s) is near his place of residence?(Clause 27) 26 Whether the claimant(s) were Yes on examined at the time of passing of the 08.12.2017 award to ascertain his/their financial condition? (Clause AWARD:
1. Detailed Accident Report (hereinafter referred to as DAR) has been filed in respect of an FIR No. 74/13 for the offence punishable under Sections 279/338/420/468/471 IPC, PS IP Estate, Delhi in relation to grievous injuries caused to claimant Raghuvir in a motor vehicular accident that took place on 16.04.2013 within the jurisdiction of PS IP Estate.
2. Facts in brief as emerged from the DAR are that on 16.04.2013, at about 6.00am when petitioner was crossing Ring Road on his cycle from IGI stadium Gate no. 20, offending dumper bearing no. HR-38R-9457 came from behind at fast speed and hit him, consequently, he fell down and sustained injuries. It was alleged that after the accident, dumper ran away towards Raj Ghat Side. It was alleged that the dumper was being driven by respondent no. 1 and it was registered in the name of respondent no. 2 and insured with respondent no. 3.
(i). During investigation it was revealed that MACT No. 356911/16 (Old Suit N. 502/15) Page No. 5 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
driving license of respondent no. 1 was fake, accordingly, sections 420/468/471 IPC were also added in the chargesheet. As per MLC petitioner sustained grievous injury.
3. DAR was contested by respondent No. 2 and 3 by filing their separate written statement. In its written statement respondent no. 2 took the plea that accident had taken place due to rash and negligence of the petitioner. It was further contended that at the time of employing respondent no. 1, his DL was checked which prima facie appeared genuine. Besides that road test was also taken and it was revealed that respondent no. 1 knew how to drive the vehicle. It was alleged that respondent no. 2 had no knowledge that driving license of respondent no. 1 was fake. It was alleged that since the vehicle was duly insured, insurance company is liable to indemnify its liability if any.
(i) Respondent no. 3 admitted in its written statement that vehicle was duly insured but took the plea that since the license of respondent no. 1 was fake, insurance company is not liable to pay any compensation.
(ii) Respondent no. 1 preferred not to file any reply to the DAR and he was was proceeded ex-parate vide order dated 23.03.2016.
4. On the basis of pleadings of both the parties, vide order dated 04.08.2016, following issues were framed:-
MACT No. 356911/16 (Old Suit N. 502/15) Page No. 6 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
(i) Whether the petitioner Raghuvir had suffered grievous injuries in road traffic accident which took place on 16.04.2013 within the jurisdiction of PS: IP Estate, Delhi due to rash and negligent driving of the vehicle bearing registration No. HR-38R-
9457 by Respondent Akhilesh Kumar?
(ii) Whether the petitioner is entitled to any compensation? if so, to what amount and from whom?
(iii) Relief.
5. In support of his case, petitioner examined himself as PW1.
(i) In rebuttal, respondent no.2 examined Smt. Sarita as R2W1 and respondent no. 3 examined Ms. Tako Meniya, Administrative Officer as R3W1.
6. On completion of evidence led by both the parties, statement of petitioner was recorded on 08.12.2017 in compliance of clause 26 of FAO No. 842 of 2003 titled Rajesh Tyagi & ors. vs. Jaivir Singh & ors. decided by Hon`ble High Court of Delhi on December 12, 2014 wherein he submitted that he needs between ` 6,000/- ` 7,000/- per month for his household expenses.
MACT No. 356911/16 (Old Suit N. 502/15) Page No. 7 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
7. I have heard rival submissions advanced by counsel for petitioner and counsel for respondent No.2 and 3, perused the record carefully gave my thoughtful consideration to their contentions.
8. My issue-wise findings are as under:-
Issue No. 1:
Whether the petitioner Raghuvir had suffered grievous injuries in road traffic accident which took place on 16.04.2013 within the jurisdiction of PS: IP Estate, Delhi due to rash and negligent driving of the vehicle bearing registration No. HR-38R-9457 by Respondent Akhilesh Kumar?
FINDING:-
9. Though Learned counsel appearing for respondents did not raise any serious contention about the rashness or negligence of respondent no. 1, yet I deem it appropriate to deal this aspect also.
(i) In this regard, testimony of PW1 is relevant. PW1 in his examination-in-chief reiterated his version that when he was crossing the road on his bicycle, offending truck MACT No. 356911/16 (Old Suit N. 502/15) Page No. 8 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
came from behind at fast speed and hit him and thereafter ran towards Rajghat side. Though PW1 was cross-examined at length, but nothing could be extracted, which may cast any dent in his testimony to that extent. Thus, I am of the considered opinion that testimony of PW1 is sufficient to hold that the accident had been caused due to rashness or negligence of respondent no.1. Accordingly, Issue no. 1 is decided in favour of petitioner and against the respondents.
Issue No.2 Whether the petitioner is entitled to any compensation? if so, to what amount and from whom?
10. As per MLC, he has sustained grievous injury and he remained under treatment till 16.04.2013 as outdoor patient. Petitioner did not get any treatment as indoor patient.
(a). INCOME OF THE PETITIONER: (i) Learned counsel appearing for the petitioner
fairly conceded that since petitioner failed to adduce any evidence to establish his income, his income is liable to be assessed as per minimum wages prevalent at the relevant time. Accordingly his income is assessed at ` 7,722/- per MACT No. 356911/16 (Old Suit N. 502/15) Page No. 9 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
month for computation of just compensation.
LOSS OF INCOME:
(i) As already stated that petitioner sustained grievous injury and remained under treatment till 16.04.2013.
Considering the fact that he sustained grievous injury, loss of income for two months @ ` 7,722/- per month i.e. ` 15,444/- is awarded to the petitioner.
(b) Expenditure on Medical Treatment:
(i) Learned counsel appearing for petitioner contended that since the petitioner got the treatment from the Govt. Hospital, he had spent on only ` 4,686/- on his medical treatment and bills are Ex. PW1/4 (Colly). During inquiry, no contrary evidence has been led, which may raise any suspicion over the said bills. Accordingly, a sum of ` 4,686/-
is awarded to him towards medical expenses.
(c) CONVEYANCE CHARGES: (i) Though counsel has claimed ` 10,000/-
towards conveyance charges, yet fairly conceded that petitioner has no documentary evidence in this regard. Admittedly, petitioner is a resident of Gokalpuri, Delhi and he got treatment from LN hospital. Considering the distance between his residence and hospital and duration of treatment, MACT No. 356911/16 (Old Suit N. 502/15) Page No. 10 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
a sum of ` 5,000/- is awarded to him towards conveyance charges.
(d) SPECIAL DIET: (i) Though counsel has claimed ` 10,000/-
under this head, yet fairly conceded that petitioner has no documentary evidence in this regard. Admittedly, petitioner has sustained grievous injury, thus it can safely be culled out that he must have spent sum amount on special diet. Considering the facts and circumstances of the case, a sum of ` 3,000/- is awarded to him under this head.
(e) NURSING/ATTENDANT CHARGES : (i) Though counsel has claimed ` 5,000/-
towards attendant charges, yet fairly conceded that petitioner has no documentary evidence in this regard. Considering the facts and circumstances of the case, a sum of ` 3,000/- is awarded to him under this head.
(e) COMPENSATION UNDER NON-PECUNIARY HEADS:-
Mental and Physical Shock and pain suffering:-
(i) Counsel has claimed ` 25,000/- under these two heads. As already discussed that petitioner met with an MACT No. 356911/16 (Old Suit N. 502/15) Page No. 11 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
accident all of sudden without any fault. Due to accident, he sustained grievous injury. Thus, it can safely be culled out that he must have not only suffered mental and physical shock but also pain and suffering. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 25,000/- is awarded to him under this head.
Loss of amenities of life:
(i) Counsel has claimed ` 10,000/- under this head. Considering the facts and circumstances of the case, a sum of ` 5,000/- is awarded under this head.
11. As discussed above, the overall compensation is tabulated as under:
NAME OF HEAD AMOUNT (In ` ) Loss of Income 15,444/- Medical Expenses 4,686/- Conveyance charges 5,000/- Special Diet 3,000/- Attendant Charges 3,000/- Mental & physical shock Pain & suffering 25,000/- Loss of life amenities 5,000/- MACT No. 356911/16 (Old Suit N. 502/15) Page No. 12 of 21
Raghuvir Vs. Akhilesh Kumar & Ors.
Total 61,130/-
Round off :- ` 62,000/-
(Rupees Sixty Two Thousands Only)
(i) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of the DAR i.e. 05.12.2015 till realization.
12. DISBURSEMENT:-
(i) Petitioner's statement was recorded on December 8,2017, regarding his financial status, in terms of clause 26 of Rajesh Tyagi & others Vs Jaibir Singh & others, FAO No. 842 of 2003 decided by Hon`ble High Court of Delhi on December 12, 2014 wherein he deposed that he needs between ` 6,000/- to ` 7,000/- per month for his household expenses.
(ii) In view of his statement, on realization, a sum of ` 12,000/- with entire interest shall be released to him forthwith and in terms of the directions contained in FAO No. 842/2003 dated December 15, 2017, balance amount of ` 50,000/- shall be put in one fixed deposits in the name of petitioner/claimant in a nationalized bank for a period of six months, Besides the above said amount, amount of FDR on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank near MACT No. 356911/16 (Old Suit N. 502/15) Page No. 13 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
the place of his residence without the facility of cheque book and ATM card. It is clarified that the amount shall be released to the petitioner only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal.
13. The above FDRs shall be prepared with the following conditions as enumerated by the Hon`ble High Court in MAC Appeal No. 422/2009, titled Sobat Singh vs. Ramesh Chandra Gupta & ors and FAO No. 842/2003 Rajesh Tyagi & ors vs. Jaivir Singh & ors decided on December 15, 2017:-
(i) The bank shall not permit any joint name(s) to be added in the saving account or fixed deposit account of the victim i.e. saving bank account(s) of the claimant shall be individual saving bank account and shall not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by the bank to the claimant.
(iii) The monthly interest be credited by Electronic Clearing System(ECS) in the saving bank account of the claimant near the place of his residence.
(iv) The maturity amount of the FDR be credited by MACT No. 356911/16 (Old Suit N. 502/15) Page No. 14 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
the ECS in the saving bank account of the claimant near the place of his residence.
(v) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(vi) The concerned bank shall not issue any cheque book and/or debit card to claimant. However, in case the debit card and/cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimant so that no debit card be issued in respect of the account of claimant from any other branch of the bank. The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant shall produce the passbook with the necessary endorsement before the Tribunal for compliance.
14. In compliance of the directions given by Hon`ble High court in FAO No. 842/2003 dated December 15, 2017, Summary of the Award in the prescribed format- IV B is as under:-
SUMMARY OF AWARD
(i) Date of accident 16.04.2013
(ii) Name of the injured Raghuvir
(iii) Age of the injured 32+ years
(iv) Occupation of the Not proved injured
(v) Income of the injured ` 7,222/- p.m MACT No. 356911/16 (Old Suit N. 502/15) Page No. 15 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
(vi) Nature of injury Grievous (vii) Medical treatment taken LN Hospital by the injured (viii) Period of NA hospitalization (ix) Whether any permanent No.
disability? If yes, give details:
10. COMPUTATION OF COMPENSATION S.No. Heads Awarded by the Tribunal (IN `)
11. Pecuniary Loss:
(i) Expenditure on treatment 4,686/-
(ii) Expenditure on conveyance 5,000/-
(iii) Expenditure on special diet 3,000/-
(iv) Cost of nursing/attendant 3,000/-
(v) Loss of earning capacity NA (vi) Loss of income 15,444/- (vii) Any other loss which may require any NA
special treatment or aid to the injured for the rest of his life
12. Non-Pecuniary Loss:
(i) Compensation for mental and physical shock 25,000/-
(ii) Pain and suffering (iii) Loss of amenities of life 5,000/- (iv) Disfiguration NA (v) Loss of marriage prospects NA (vi) Loss of earning, inconvenience, NA
hardships, disappointment, frustration, MACT No. 356911/16 (Old Suit N. 502/15) Page No. 16 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
mental stress, dejectment and
unhappiness in future life etc.
(vii) Less contributory negligence NA
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and NA nature of disability as permanent or temporary
(ii) Loss of amenities or loss of NIL expectation of life span on account of disability
(iii) Percentage of loss of earning capacity No in relation to disability
(iv) Loss of future Income-(Income x% No Earning Capacity x Multiplier) 14 Total Compensation (Rounded off) 62,000/-
15. INTEREST AWARDED 9%
16. Interest amount upto the date of award 12,998/-
02 years 03 months 30 days
17. Total amount including interest 74,998/-
18. Award amount release 12,000/- plus entire interest
19. Award amount kept in FDRs 50,000
20. Mode of disbursement of the award One FDR of amount to the claimants (s) (Clause 50,000/- as
29) mentioned in para No. 12
21. Next date for compliance of the award. 08.05.2018 (Clause 31.) LIABILITY TO PAY:-
15. Learned counsel appearing for insurance company contended that since during investigation police MACT No. 356911/16 (Old Suit N. 502/15) Page No. 17 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
found that driving license of the respondent no. 1 was fake, it means that respondent no. 1 was driving the offending vehicle without any valid and effective driving license, accordingly, insurance company is entitled for recovery rights qua respondent no. 1 and 2.
(i) Per contra counsel appearing for the respondent no. 2 refuted the said contention by sagaciously arguing that since the respondent no. 1 had a license to drive the offending vehicle and he had also taken driving test of respondent no. 1 before employing him, it cannot be said that there was any willful breach on his part. Accordingly, it was urged that insurance company is liable to indemnify his liability.
16. In this regard, besides the DAR, testimony of R2W1 and R3W1 are relevant.
(i) R2W1 in his examination-in-chief testified that before employing respondent no. 1, his driving license was seen and driving test was also taken. Since he was found driving correctly, he was employed. Indisputably, respondent no. 1 was having a driving license issued from Allahabad Licensing authority. As per the said license, license was issued on 19.03.2009 and it was valid upto 18.03.2012. It was renewed on 18.03.2012 and valid upto 17.03.2015. As per the said license, respondent no. 1 was authorized various type of vehicles including heavy goods vehicle. No doubt during investigation, said license was found fake, but this itself is not MACT No. 356911/16 (Old Suit N. 502/15) Page No. 18 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
sufficient to establish that there was any willful breach of any term and condition of the policy on the part of respondent no.
2. There is nothing on record which may show that it was in the knowledge of respondent no. 2 that the license was fake or he had reason to believe that license was fake. Mere fact that respondent no. 1 succeeded to get employment on the basis of forged license, it cannot be said that there was any willful breach on the part of respondent no. 2. In these circumstances I am of the considered opinion that insurance company failed to establish that there was any willful breach on the part of respondent no. 2.
(ii) However, since the license belonged respondent no. 1 and during investigation, IO verified the said license from issuing authority and it was revealed that the said license was never issued by the authority, I am of the view that insurance company has succeeded to establish that it was in the knowledge of respondent no. 1 that the license was fake. But despite that he preferred to drive the vehicle. This establishes that there was a willful breach of the term and condition of the insurance policy on the part of respondent no.
1. Accordingly, insurance company is entitled to recover the award amount from respondent no. 1 without filing a separate civil suit after satisfying award.
(iii) In view of the above, insurance company is permitted to recover the award amount from respondent No.1 after satisfying the same without filing a separate civil suit.
MACT No. 356911/16 (Old Suit N. 502/15) Page No. 19 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
Accordingly, Issue No.2 is decided in favour of petitioner and against the respondents.
RELIEF:
16. Since, the offending vehicle was insured with respondent No.3 (New India Assurance Co. Ltd.), respondent No.3 is directed to deposit a sum of ` 62,000/-
with interest @ 9 % per annum from the date of filing of petition i.e. December 5,2015 till realization with Nazir of this Tribunal within 30 days under intimation to the petitioner failing which the respondent No. 3 shall be liable to pay interest @ 12 % per annum for the period of delay beyond 30 days.
17. Insurer, driver and owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioner/claimant and complete detail in respect of calculation of interest etc. within 30 days from today.
(i) A copy of this judgment be sent to Respondent No.2 (New India Assurance Co. Ltd.), for compliance within the time granted.
MACT No. 356911/16 (Old Suit N. 502/15) Page No. 20 of 21 Raghuvir Vs. Akhilesh Kumar & Ors.
(ii) Nazir is directed to place a report on record on May 08, 2018 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iii) In terms of clause 31 & 32 of the judgment titled Rajesh Tyagi & others Vs. Jaibir Singh & Ors. decided by Hon`ble High Court on December 12, 2014, copy of this award be sent to the concerned court of Ld. Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
(iv) File be consigned to Record Room.
Announced in open court on this 4th day of April, 2018 (PAWAN KUMAR JAIN) Judge, MACT-1 (Central), THC, Delhi/v Digitally signed by PAWAN PAWAN KUMAR JAIN KUMAR Date:
JAIN 2018.04.04
17:25:12
+0530
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