Delhi District Court
Sh. Prince vs Sh. Akhlak (Driver) on 7 March, 2018
IN THE COURT OF SH. RAKESH KUMAR-III:
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :02
(CENTRAL):DELHI
Case No.: 357116/16
Sh. Prince
S/o. Sh. Ram Saran
R/o. A-78, Gali No. 3, Ambe colony,
Chauhan Patti, Delhi. .............Petitioner
VERSUS
1. Sh. Akhlak (Driver)
S/o. Sh. Siraj Ali
R/o. H. No. 161A, I. G. Camp, Tembur
Nagar, Delhi.
2. Sh. Rajesh (Regd. Owner)
S/o. Sh. Har Narayan
R/o. E-4/153, Nand Nagri, Delhi.
3. Future Generali India Insurance co. (insurer)
303-310, 3rd Floor, Kailash Building, K. G. Marg,
Connaught Place, New Delhi. ............ Respondents
Date of Institution: 08.01.2016 (DAR) Date of reserving order/judgment: 07.03.2018 Date of pronouncement : 07.03.2018 Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 1/14 JUDGMENT-CUM-AWARD:
INFORMATION IN TERMS OF PROVISIONS OF THE MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP) Date of Accident 21.09.2015 Date of intimation of the accident by 08.01.2016 the Investigation Officer to the Claims Tribunal (Clasuse2) Date of intimation of the accident by 08.01.2016 the Investigation Officer to the Insurance Company (Clause2) Date of filing of the Report under section 173 Cr.PC before the Metropolitan Magistrate (Clause 10) Date of filing of Detailed Accident 08.01.2016 Information Report(DAR) by the Investigation Officer before Claims Tribunal (Clause) Date of service of DAR on the 08.01.2016 Insurance Company (clause11) Date of service of DAR on the 08.01.2016 claimant(s)(Clause11) Whether DAR was complete in all Yes respects? ( Clause11) If not state deficiencies in the DAR No Whether the police has verified the Yes documents filed with DAR? (clause4) Whether there was any delay or No deficiency on the part of the Investigation Officer? If so, whether any action/ direction warranted?
Date of appointment of the -
Designated Officer by the Insurance
Company
Name, address and contact number -
of the Designated Officer of the
Insurance Company(Clause 19)
Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 2/14
Whether the Designated officer of the No
insurance Company submitted his
report within 30 days of the DAR?
(Clause 21)
Whether the Insurance Company Yes
admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law. (Clause22) Whether there was any delay or No deficiency on the part of the Designated officer of the Insurance Company? If so whether any action/ direction warranted?
Date of response of the claimant(s) to 20.09.2016 the offer of the Insurance Company?
(Clause 23)
Date of Award 07.03.2018
Whether the award was passed with No
the consent of the parties? (Clause
22)
Whether the claimants(s) examined Yes
at the time of passing of the award to
ascertain his/ their financial
condition? (Clause 26)
Whether the photographs, specimen yes
signatures, proof of residence and
particulars of bank account of the
injured/ legal heirs of the deceased
taken at the time of passing of the
award? (Clause26)
Mode of disbursement of the award Mentioned in the Award
amount to the claimant(s) (Clause 28)
Next Date of compliance of the 07.04.2018
award(Clause30)
Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 3/14
1. The present Claim Petition has arisen on the basis of a DAR in respect of injuries suffered by Sh. Prince in a motor vehicular accident.
2. The case of the petitioner is that on 21.09.2015 at about 05.00 p.m., injured Prince was going back to his house on his motorcycle bearing no. DL13SJ6973 and when he reached behind Lal Quila, one TSR bearing registration no. DL1RQ2460 came in a rash and negligent manner and hit his motorcycle. Due to the impact, Prince had fallen down and he received injuries. PCR Van took him to AAA Hospital, where he took treatment. On the complaint of injured Prince, FIR No. 810/15 U/s 279/337 IPC was registered.
The petitioner has claimed Rs. 15,524/- as compensation on account of the injuries sustained by him in the accident.
3. The written statement was filed by Respondents No. 1 & 2 wherein he categorically denied the rash and negligent aspect and also described the contents of the petition to be false one.
4. The written statement was also filed by respondent no.3/ insurance company wherein it was admitted that the offending vehicle was insured with it as on the date and time of accident. It is stated that driver Akhlak was driving the auto-rickshaw, whereas he was holding license for the category of Light Motor Vehicle and he was not authorized to drive the commercial vehicle and insurance company in these circumstances has no liability to pay the compensation.
Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 4/145. On the pleadings of the parties, following issues were framed for consideration on 20.09.2016 :-
1. Whether the petitioner Sh. Prince suffered injuries in an accident that took place on 21.09.2015 at about 05.00 P.M involving TSR bearing registration NO. DL-1RQ-2460 driven by the Respondent No. 1
rashly and negligently, owned by
respondent no.2 and insured with the
Respondent No.3? OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom? OPP
3. Relief.
6. In order to establish its claim, the petitioner examined himself as PW-1 and has exhibited copy of his election I card Ex.PW1/1, copy of DL Ex.PW1/2 and DAR Ex.PW1/3.
7. The respondents no. 1 and 2 did not adduce any evidence in their defence.
8. The respondent no. 3 / Insurance company examined Sh. Amit Sharma as R3W1 on its behalf and has exhibited attested Insurance police Ex.R3W1/1, notice u/o 12 Rule 8 CPC Ex.R3W1/2, post receipt Ex.R3W1/3 and DL verification report filed by the IO Ex.R3W1/4.
9. I have thoroughly gone through the testimony of the witness and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the parties.
Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 5/14My findings on various issues are as under :-
10. ISSUE NO. 1The present petition is under Section 166 of M.V. Act and as such, it was the duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
11. The police has filed the Detailed Accident Report (DAR) on record pertaining to the case FIR no. 810/15, PS Kotwali, u/s. 279/337 IPC along with charge-sheet etc.
12. The petitioner explained the mode and manner of the accident in his affidavit, Ex. PW1/A . He deposed that on 21.09.2015 at about 05.00 p.m., injured Prince was going back to his house on his motorcycle bearing no. DL13SJ6973 and when he reached behind Lal Quila, one TSR bearing registration no. DL1RQ2460 came in a rash and negligent manner and hit his motorcycle. Due to the impact, Prince had fallen down and he received injuries. PCR Van took him to AAA Hospital, where he took treatment. The cross-examination carried on by the respondent No. 3 is not suggestive of anything which may discard the claim of the petitioner to the effect that the driver of the offending vehicle was not rash and negligent at the time of accident. Respondents no. 1 and 2 have not cross-examined this witness.
13. While determining the negligence of the driver of the offending vehicle, 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 Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 6/14 addition the recovery memo on 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 mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under section 166 and 140 of the Act.
14. It is also 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.
15. Further recently the Hon'ble High of Delhi in MAC App.
No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble High Court of Delhi 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 Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 7/14 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."
16. Therefore, after considering the oral as well as documentary evidence, it is clear that respondent no. 1 was driving the vehicle in a rash and negligent manner.
17. The issue no. 1, therefore, goes in favour of the petitioner and against the respondents.
ISSUE NO.2 : COMPENSATION NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
18. As per the MLC of the petitioner, he has suffered minor injuries. It is stated by the petitioner (PW1) in his examination in chief that the original medical bills and treatments papers have been misplaced by him.
It is common knowledge that generally people during the treatment do not maintain the bills etc as they are not aware of this benevolent legislation having provisions for compensation. Keeping in view the overall circumstances, I hereby grant a sum of Rs. 3000/- towards medical expenses.
Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 8/1419. PAIN AND SUFFERINGS :
It is settled law that a particular amount can not be fixed for pain and sufferings in all the cases and it varies from case to case. Judicial notice can be taken to the fact that since the petitioner had got injuries as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have also to take heavy dose of anti-biotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision:
2.2.2007, Delhi High Court by Hon'ble Mr. Justice Pradeep Nandrajog wherein it was held that:-
"On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment."
20. Keeping in view the said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs.5,000/- towards pain and sufferings and loss of amenities of life. Besides this, I hereby award a sum of Rs.3,000/- towards special diet and conveyance.
21. LOSS OF INCOME DURING TREATMENT PERIOD The petitioner was stated to be working as salesman with T. R. Gandhi & Company and earning Rs.15,000/- per month, but no income Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 9/14 proof has been filed or proved on record. Keeping in view the nature of injuries, it appears to me that petitioner could not have worked for about 15 days. In these circumstances, the income of the petitioner can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 21.09.2015 on which the minimum wages for Unskilled Persons were Rs. 9048/-. Accordingly, I award Rs. 4524/- (Rs.9048 X ½ ) towards loss of income.
The total compensation is assessed as under:-
Treatment expenses : Rs. 3000/-
Pain and sufferings : Rs. 5000/-
Conveyance & special diet : Rs. 3000/-
Loss of income during
treatment period : Rs. 4524/-
__________
Total : Rs. 15,524/-
22. RELIEF:
I award Rs. 15,524/- (Rupees Fifteen Thousand Five Hundred Twenty Four Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR i.e.,08.01.2016 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several.
APPORTIONMENT OF LIABILITY
23. Ld. Counsel for the respondent No.3 has vehemently argued that recovery rights are to be granted to the insurance company as respondent No.1 was having a DL for LMV (non-transport) category, whereas he was driving an auto-rickshaw (commercial).
24. In 2017(7) Scale 731 titled as Mukund Dewangan vs. Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 10/14 Oriental Insurance Company Ltd., the Hon'ble Supreme Court of India, in para no. 46 thereof has held as under: -
Para no. 46 (iv) "The effect of amendment of Form 4 by Insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving license for transport vehicle of class of "light motor vehicle' continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding license to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect".
As per the ratio of the said authority, if a driver was holding a license to drive Light Motor vehicle, he was able to drive Transport Vehicle of such class without any endorsement to that effect. To my mind, it can be safely concluded that the respondent No1 was having a valid DL on the date and time of the accident.
In S.Iyyapan v. United India Insurance Co. Ltd., the Hon'ble Supreme Court has considered the decisions in Ashok Gangadhar, Annappa Irappa Nesaria, Prabhu Lal and other decisions and laid down thus: (S.Iyyapan case, SCC p. 77 para 18) "18. In the instant case, admittedly the driver was holding a valid driving license to drive light motor vehicle.
There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving license to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 11/14 to pay compensation because impugned judgment is, therefore, liable to be set aside."
The Hon'ble Supreme Court of India, in Kulwant Singh v. Oriental Insurance Co. Ltd. (2015) 2 SCC 186 referring to the decisions of Hon'ble Supreme Court in S. Iyyapan and Annappa Irappa Nesaria (2008) 3 SCC 464 has laid down that when one driver is holding a license to drive light motor vehicle, he can drive commercial vehicle of that category.
Reference can also be made to National Insurance Company Ltd. Vs Shama & Ors in MAC Appeal No. 490/2008 dated 19 th July, 2017, wherein Hon'ble Mr. Justice R. K. Gauba has taken the similar view after discussing Mukund Dewangan vs. Oriental Insurance Company Ltd. 2017(7) SCALE 731 and New India Assurance Co. Ltd. Vs Arvinder Kaur & Ors. MAC Appeal No. 32/2006 decided on 17.02.2016.
25. In view of the aforesaid discussion, I am of the considered opinion that the insurance company is not entitled to any recovery rights.
26. The Respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, Respondent No.3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
27. The Hon'ble High Court of Delhi in its judgment in Union of India and Another Vs. Nanisari and Others MACA 682/2005 decided on 13.1.2010 as well as in MAC. APP No. 422/2009 titled as Sobat Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 12/14 Singh Vs. Ramesh Chandra Gupta & Anr. & FAO 842/2003 & CM32859/2017, 41125-41127/2017 titled as Raesh Tyagi & Ors. Vs. Jaibir Singh & Ors. Dated 15/12/2017 has laid certain guidelines which are as under regarding depositing of award amount :-
"The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. H S Rawat, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09717044322) or to UCO Bank through Mr. M M Tandon, Member-
Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
28. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its Nodal Officer, Relationship Manager, Tis Hazari Branch, Tis Hazari or to UCO Bank through Mr. M M Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 13/14 the victim of the road accident".
29. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Branch for opening the account.
30. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioner. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
31. File be consigned to Record Room.
32. A separate file be prepared for compliance report and put up the same on 07.04.2018. Digitally signed by RAKESH RAKESH KUMAR Date:
KUMAR 2018.03.07
16:10:55
+0530
Announced in the open court (RAKESH KUMAR-III)
on this 7th March, 2018 PO: MACT-02 (CENTRAL):
DELHI /07.03.2018
Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 14/14
Suit No. 357116/16 Prince Vs. Akhlak & Ors.
07.03.2018
Present : Ld. Counsels for the parties.
Arguments heard.
Put up for judgment at 4:00 PM.
(Rakesh Kumar - III )
P.O. MACT (Central - 02)
Delhi / 07.03.2018
AT 4:00 PM
Present: None.
Vide separate judgment, the petitioner is awarded
Rs.15,524/- (Rupees Fifteen Thousand Five Hundred Twenty Four Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR i.e.,08.01.2016 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
The petitioner is further directed to open a bank account, if not opened earlier, near his place of residence and to file the photocopy of his passbook, with due endorsement on the passbook that no cheque book or debit card is issued and file the copy of the same with the Nazir of this court.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 07.04.2018.
( Rakesh Kumar - III ) P.O. MACT (Central - 02) Delhi / 07.03.2018 Suit No. 357116/16 Prince Vs. Akhlak & ors. Page No. 15/14