Delhi District Court
Noorjahan vs . Jcl Musheed & Ors. on 4 December, 2018
Noorjahan vs. JCL Musheed & Ors.
IN THE COURT OF SH. SAMEER BAJPAI : PRESIDING OFFICER : MACT
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Petition No. : 75386/16
Noorjahan
W/o Sh. Akil
R/o 14/847, Asthal Mandir Road,
Sangam Vihar, New Delhi
..... Petitioner
Versus
1. JCL Musheed
S/o Sh. Mujahir Ali
R/o 1515/9, Church Colony,
Sangam Vihar, New Delhi ........... Driver
2. Mujahir Ali
S/o Sh. Hikmat Ali
R/o 1515/9, Church Colony,
Sangam Vihar, New Delhi ........... Owner
..... Respondents
Date of Institution : 27.07.2015
Date of reserving of judgment/order : 04.12.2018
Date of pronouncement : 04.12.2018
J U D G M E N T :
1. By this order I shall dispose of the Detailed Accident Report (DAR) filed by SHO, Police Station Neb Sarai for the injuries sustained by Noorjahan in a Petition no. : 75386/16 Page No. 1/17 Noorjahan vs. JCL Musheed & Ors.
road accident on 19.05.2015 at about 6.00 p.m. at Budh Bazar, near Asthal Mandir Road, Sangam Vihar, New Delhi due to rash and negligent driving of vehicle bearing no. DL 3S BB 6841 by the respondent no.1 and owned by respondent no.2.
2. Reply filed by the driver and owner.
3. In reply/written statement respondent no.2/owner stated that a false FIR has been lodged against his minor son. He further stated that the injured Noorjahan made a false complaint to the police on the basis of which police of PS Neb Sarai lodged a false case. He further stated that the Juvenile Justice BoardII, Delhi Gate has already discharged his son vide order dated 27.08.2015. He further stated that his son went to the market Budh Bazar, Sangam Vihar on a motorcycle to purchase a notebook as he is a student of 12th class. He further stated that his motorcycle slipped on road inside 3035 meter from Bandh and he sustained injuries. He became unconscious and was taken to Trauma Center, AIIMS. Public persons gathered on the spot and some public persons namely Bobby Thakral, Munne Mian and Mohd. Aarif helped his son to get admitted in AIIMS Trauma Center. He further stated that his son has no concern with the case FIR no. 664/15 u/s 279/338 IPC PS Neb Sarai. He further stated that the abovenoted FIR has been lodged after two days of alleged incident. He further stated that the complainant was also admitted in Trauma Center where, being the resident of same locality, the attendants of JCL Musheer and brother of the complainant who was attending her at the Trauma Center became known to Petition no. : 75386/16 Page No. 2/17 Noorjahan vs. JCL Musheed & Ors.
each other and the brother of the complainant came to know about the slip of the motorcycle of JCL Musheer and on the instance of her brother, she has implicated his son to get some money by misusing the provisions of Motor Vehicles Act.
4. Respondent no.1 also filed his reply/written statement on the lines of respondent no.2.
5. Following issues were framed vide order dated 23.11.2015 :
1. Whether Smt. Noorjahan W/o Sh.Akeel Ahmad sustained injuries in a road accident on 19.05.2015 at about 6.00 p.m. at Budh Bazar near Asthal Mandir Road, Sangam Vihar, New Delhi due to rash and negligent driving of vehicle (Motorcycle) bearing no. DL 3S BB 6841 being driven by respondent no.1 (JCL Musheed Ahmad) and owned by respondent no.2 (Muzahir Ali)?... OPP.
2. To what amount of compensation the petitioner is entitled and from whom?
3. Relief.
6. Petitioner examined herself as PW1. She tendered in evidence her affidavit Ex.PW1/A and relied upon the documents Ex.PW1/1 to Ex.PW1/6 (colly.).
7. Respondent no.2 examined Sh. Munne Mian as R1W1, he tendered in evidence his affidavit Ex.R1W1/A, Sh. Mohd. Aarif as R1W2, he tendered in evidence his affidavit Ex.R1W2/A, Sh. Rajender Singh, Record Clerk, AIIMS Trauma Center as R1W3, he brought the MLC Ex.R1W3/1, treatment record Petition no. : 75386/16 Page No. 3/17 Noorjahan vs. JCL Musheed & Ors.
of the injured Ex.R1W3/2 and discharge summary of the driver Ex.R1W3/3 and SI Vinay Kumar as R1W4.
8. I have heard arguments advanced by counsel for the parties and perused the record. My findings on the issues are as follows :
I S S U E N o. 1
9. Needless to say that for making someone entitled U/s 166 of the Motor Vehicle Act, negligence of the driver of the offending vehicle needs to be proved and to prove the same the Tribunal need not go into the technicalities because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just, rational and reasonable on the basis of enquiry. It is an admitted legal position that the negligence on part of the driver with respect to use of the vehicle needs to be established and the same is to be established on the principle of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III (2015) ACC 435 Delhi.
PW1 (petitioner) stated that on 19.05.2015 at about 1800 hrs. she was going on foot from her residence to market. She was walking on proper and correct side of the road in a careful manner. When she reached Budh Bazar near Asthal Mandir Road within the jurisdiction of police station Neb Sarai, all of a sudden one vehicle bearing no. DL 3S BB 6841 came at a high speed being driven by respondent no.1 in a rash and negligent manner and hit her from behind. Due to the forceful impact, she fell down and sustained injuries. She was removed to Saket City Hospital where her MLC Petition no. : 75386/16 Page No. 4/17 Noorjahan vs. JCL Musheed & Ors.
was prepared. She further stated that the accident had occurred due to rash and negligent driving by the respondent no.1.
During crossexamination she stated that public persons got her admitted in the hospital but she does not know their names. She further stated that she was admitted in Saket City Hospital and before Saket City Hospital she was not admitted anywhere. She further stated that she went to AIIMS Trauma Center but no treatment was given to her. She remained there for 1½ hr. 2 hr. Her relatives Naeem and Idrish also reached at AIIMS Trauma Center. They brought her to Saket City Hospital in an auto rickshaw. She further stated that the doctors had taken her Xray at Trauma Center and gave her first aid. She left the Trauma Center without advise of the doctor because they did not treat her properly. Her brother had taken the admission card from the hospital. She further stated that she told the cause of the injury to her brother Naeem and Idrish and they may have told to the doctor. She denied that the accident had not occurred due to rash and negligent driving by Musheer. She further stated that the police officials met her first time at Trauma Center. Police officials came to her house after 23 days for recording her statement. She further stated that she told her counsel about the fact that firstly she got admitted in Trauma Center, AIIMS, however, she cannot brought the papers prepared at Trauma Center. She denied the suggestion that she left the Trauma Center just to implicate the respondent no.1 falsely. She further stated that no MLC was prepared at Trauma Center.
10. R1W1 Munna Mian stated that on 19.05.2015 at about 6.00 p.m. he was Petition no. : 75386/16 Page No. 5/17 Noorjahan vs. JCL Musheed & Ors.
going to the office of Jareef from his house at Shani Bazar. When he reached near Budh Bazar Road, Sangam Vihar, he saw a boy coming from the front side on a motorcycle, he slipped and fell down on the road. He stopped there for his help. In the meantime, some other persons also reached the spot and they took the said boy to somewhere. He further stated that the accident of respondent no.1 took place in his presence and no other persons sustained injuries except Musheer.
During crossexamination he stated that at the time of accident, the motorcyclist slipped alongwith his motorcycle and fell down on the road. After the accident, he left the spot and some public persons gathered there and took him to his residence. His statement was not recorded by the police nor he himself went to the police station for getting his statement recorded. He further stated that he came at the instance of the father of respondent no.1 to depose in this case. He denied that the respondent no.1 was driving the motorcycle in a high speed at the time of accident and hit the injured.
11. R1W2 Mohd. Aarif stated that on 19.05.2015 at about 6.00 p.m. he was going to MBlock, Sangam Vihar to meet his brother Hasmuddin. When he reached near Budh Bazar road, near the shop of Khan Motor Mechanic, Sangam Vihar, the respondent no.1 came from front side on a motorcycle and suddenly his motorcycle slipped and he fell down on the road and sustained injuries. He became unconscious. He further stated that he reached there with the intention to help, however, some other people also gathered there and the relatives of the respondent no.1 also reached there and took him from the spot. He further stated that the accident of Petition no. : 75386/16 Page No. 6/17 Noorjahan vs. JCL Musheed & Ors.
respondent no.1 took place in his presence and no other person sustained injuries.
During crossexamination he stated that on the day of accident, he was gong to his brother's house at Budh Bazar, MBlock, Sangam Vihar at about 6.00 p.m. by his motorcycle. He saw a motorcycle coming from the side of Asthal Mandir side i.e. from his opposite direction. There was no divider on the said road. He saw that the said motorcyclist suddenly slipped on his own and fell down on the road at about 2025 ft. distance from his motorcycle. The said road was a busy road and public persons were present. He also went to see the incident and remained there for about 10 12 minutes. After 510 minutes the family members of the motorcyclist reached there. Thereafter, he left the spot. His statement was not recorded by the police nor he himself went to the police station for getting his statement recorded. He further stated that he is not a summoned witness. He came to the court to depose at the instance of respondent no.2 i.e. father of respondent no.1. He further stated that respondent no.1 and 2 are known to him. He denied the suggestion that he is deposing falsely in order to save respondent no.1. He further denied that the motorcyclist i.e. respondent no.1 was driving his motorcycle at a high speed at the time of accident and hit the injured. He further denied that the accident caused due to rash and negligence of the motorcyclist as he was driving at a high speed. He voluntarily stated that no lady involved in the accident.
12. R1W3 Rajender Singh, Record Clerk, AIIMS Trauma Center brought the MLC of Noor Jahan Ex.R1W3/1. He also brought the treatment record of Petition no. : 75386/16 Page No. 7/17 Noorjahan vs. JCL Musheed & Ors.
Noor Jahan Ex.R1W3/2 and her discharge summary Ex.R1W3/3. He further stated that they have tried their best to search the original record i.e. MLC no. 491891 dated 19.05.2015 of injured Noor Jahan but the same is not traceable.
13. R1W4 SI Vinay Kumar stated that he was the investigating officer in this case. He further stated that he has no information whether the injured Noor Jahan was firstly admitted in Trauma Center or not. Even he had no document at the time of filing the DAR showing that the injured was firstly admitted in Trauma Center, AIIMS. He further stated that HC Om Parkash of PS Neb Sarai had never collected Ex.R1W3/1 to Ex.R1W3/3 on his behalf from AIIMS Trauma Center. He further stated that HC Om Parkash no.2400 was never posted at PS Neb Sarai at the time of incident to the best of his knowledge. He denied that he had received the document Ex.R1W3/1 to Ex.R1W3/3 from AIIMS Trauma Center through HC Om Parkash but he is concealing the fact to give undue advantage to the injured. He further stated that he had not received any complaint from the owner of the offending vehicle regarding the information of admission of injured Noor Jahan at Trauma Center. He further stated that they had received the information on 19.05.2015 at about 6.00 p.m. regarding the accident. He visited the Saket City Hospital on the intervening night of 19.05.2015 to 20.05.2015 but the injured was in the operation theater. On 21.05.2015 he recorded the statement of the injured. He further stated that as per statement of the injured, she was admitted in Saket City Hospital just after 6.00 p.m. but as per MLC she was admitted in Saket City Hospital at 11.00 p.m. on Petition no. : 75386/16 Page No. 8/17 Noorjahan vs. JCL Musheed & Ors.
19.05.2015. He stated that the hospitals and Trauma Center, AIIMS used to inform the concerned police station about the admission of the injured in the hospital. He had not received any information from Trauma Center, AIIMS that the injured Noor Jahan was admitted there. He further stated that he does not remember whether he had received information from AIIMS Trauma Center regarding admission of driver JCL Musheer on the date of accident. He further stated that if information is given in the police station then appropriate inquiry may be done as both the claim case and the criminal cases are pending in the Court. He further stated that he does not know whether the JCL Musheer has been discharged from the Juvenile Justice Board or not. He further stated that after receiving information vide DD no. 29A dated 19.05.15 he visited the spot but he could not found the injured as well as the driver and owner at the spot. On 23.05.2015 he prepared the site plan at the instance of the injured. On that day he made his best efforts, but no witness of incident was found at the spot. He further stated that it is in his knowledge that the accident took place at 6.00 p.m. and the injured Noor Jahan was admitted in Saket City Hospital at 11.00 p.m. He further stated that the injured informed him that her husband brought her to the hospital after the accident. The officials of Saket City Hospital had made the PCR call regarding the admission of injured Noor Jahan at 11.00 p.m. He denied that he is concealing the truth as he want to give benefit to the injured.
14. The main contentions of the respondents is that firstly, the accident as alleged by the petitioner has never happened and the respondent no.1 got Petition no. : 75386/16 Page No. 9/17 Noorjahan vs. JCL Musheed & Ors.
slipped from his motorcycle on his own and he also sustained injuries, secondly, the FIR was registered 34 days after the accident and thirdly, the MLC of petitioner was not prepared at AIIMS which create doubt in her claim.
15. Considering the record, I am not satisfied with any contention of the respondents.
As far as the first contention is concerned, the petitioner has categorically stated in her statement before the Tribunal as well as in her statement as given to the I.O u/s 161 Cr.P.C. that the accident happened due to the rash and negligent driving of the respondent no.1. After the accident notice was issued to the owner of the offending vehicle/respondent no.2 i.e. father of the respondent no.1 and offending motorcycle was seized. Despite that the respondents did not raise any objection or made any complaint against the proceedings as done against them. The witnesses as examined by the respondents do not appear to be genuine as their names have nowhere been shown as witnesses by the I.O. in the investigation proceedings. Thus, considering the whole facts and circumstances it is concluded that the accident happened due to the rash and negligent driving of the offending vehicle of the respondent no.1.
As far as the second contention is concerned, the accident happened on 19.05.2015 and the FIR was registered on 21.05.2015. The delay is just of two days and not at all material.
As far as the third contention that the MLC was not prepared at AIIMS is concerned, again the same is also not material as R1W3 has clearly Petition no. : 75386/16 Page No. 10/17 Noorjahan vs. JCL Musheed & Ors.
stated that the MLC of the petitioner was prepared and he also gave the MLC number as 491891 dated 19.05.2015. He furhter explained that MLC could not be bring on record as the same could not be traced. Further, discharge summary of the petitioner as issued by AIIMS is on record which clearly shows that the petitioner was taken to the AIIMS first, immediately after the accident. The petitioner then got herself admitted in Saket City Hospital and got treatment there. Relevant records have been proved by the petitioner. It is thus concluded that the claim of the petitioner is true and the respondent no.1 is responsible for causing injuries on her person.
This issue is decided in favour of petitioner and against the respondents.
I S S U E No. 216. The petitioner has claimed compensation in respect of the injuries sustained by him. In a road accident a person is entitled to compensation for the pecuniary and nonpecuniary damages. Let me assess the compensation which the claimant is entitled for under different heads :
MEDICAL EXPENSES :
17. In the present case the petitioner has filed original medical bills of Rs.
6,940/. I, therefore, award Rs. 7,000/ to the petitioner towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
18. As per the discharge summary Ex.PW1/2, the petitioner was diagnosed with Petition no. : 75386/16 Page No. 11/17 Noorjahan vs. JCL Musheed & Ors.
comminuted displaced fracture left proximal humerus. He remained admitted there from 19.05.2015 to 22.05.2015. ORIF+Bone grafting was done. The injuries on her person were grievous in nature. Having regard to the injury and treatment of the petitioner, I award her Rs. 25,000/ towards pain and sufferings and enjoyment of life.
SPECIAL DIET, CONVEYANCE AND ATTENDANT CHARGES :
19. In the present case the petitioner has not filed on record any document with regard to special diet, conveyance and attendant charges. However, looking into the injuries and treatment of the petitioner, I award her Rs. 15,000/ under this head.
LOSS OF INCOME :
20. The petitioner stated that at the time of accident, she was doing the work of stitching. He was earning Rs. 10,000/ p.m. During crossexamination she stated that she was doing stitching of ladies clothes from her home. She had been doing this work for very long time and that is why people knew her. In the present case the petitioner has not filed on record any document with regard to her occupation and income. However, looking into the injuries and treatment of the petitioner, I award her Rs. 25,000/ (lumpsum) towards loss of income.
21. Thus, the total compensation awarded in favour of the petitioner is assessed as under :
Petition no. : 75386/16 Page No. 12/17Noorjahan vs. JCL Musheed & Ors.
MEDICAL EXPENSES : Rs. 7,000/
PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 25,000/
SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 15,000/
LOSS OF INCOME : Rs. 25,000/
===========
TOTAL : Rs. 72,000/
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L I A B I L I T Y
22. As the offending vehicle was being driven by respondent no. 1, primary liability to compensate the petitioner is of respondent no. 1. Since the vehicle was owned by respondent no.2, he is vicariously liable to compensate the petitioner. It is an admitted position on record that the vehicle was not insured, therefore, respondent no.2 is liable to compensate the petitioner.
R E L I E F
23. In view of my findings, I award Rs. 72,000/ (Rs. Seventy Two Thousand only) to the petitioner as compensation alongwith interest @9% per annum from the date of filing the DAR till its realisation (except for the period from 27.02.2018 till 04.12.2018).
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
24. Respondent no.2 is directed to deposit the awarded amount in favour of the petitioner with State Bank of India, Saket Courts Complex Branch, against account of petitioner within a period of 30 days from today, failing which he Petition no. : 75386/16 Page No. 13/17 Noorjahan vs. JCL Musheed & Ors.
shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
25. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :
1. No cheque book be issued to petitioner/claimant without the permission of this Court.
2. On the request of petitioner/claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
3. Petitioner/claimant shall furnish all the relevant documents for opening of the Saving Bank Account to the Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
4. The bank is also directed to get the nomination form filled by the claimant at the time of preparation of FDRs.
5. The bank is also directed to keep the money received from the respondent no.2 in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
6. The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioner from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 4112541127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/NEFT directly in the personal bank account of the petitioner of the bank nearest to her place of residence, the details of which have been given by the petitioner to the Tribunal and same details shall be given by her to the Manager SBI, District Court Saket branch.
DIRECTIONS FOR THE RESPONDENT NO. 226. The Respondent no.2 is directed to file the compliance report of its having Petition no. : 75386/16 Page No. 14/17 Noorjahan vs. JCL Musheed & Ors.
deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
27. The Respondent no.2 is directed to furnish a copy of this award to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant/petitioner in whose favour the award has been passed.
28. The Respondent no.2 shall intimate the claimant/petitioner about his having deposited the award amount in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
29. Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after her having received the notice of the deposit of awarded amount by the respondents
30. Copy of this Award / Judgment be given to the parties for compliance.
31. The case is now fixed for compliance by the respondent no.2 for 04.01.2019.
32. FormIV of the Modified Claims Tribunal Agreed Procedure to be mentioned in the Award is as under :
Petition no. : 75386/16 Page No. 15/17Noorjahan vs. JCL Musheed & Ors.
1 Date of the accident 19.05.2015 2 Date of intimation of the accident by the 22.05.2015 Investigating Officer to the Claims Tribunal 3 Date of intimation of the accident by the Not available Investigating Officer to the insurance company 4 Date of filing of Report u/s 173 Cr.P.C. Not available before the Metropolitan Magistrate 5 Date of filing the Detailed Accident Report 27.07.2015 (DAR) by the Investigating Officer before Claims Tribunal 6 Date of service of DAR on the insurance N.A. company 7 Date of service of DAR on the claimant 19.05.2015 8 Whether DAR was complete in all Yes respect?
9 If not, state deficiencies in the DAR N.A. 10 Whether the police has verified the Yes documents filed with DAR 11 Whether there was any delay or deficiency No on the part of the Investigating Officer? If so, whether any action/direction warranted?
12 Date of appointment of the Designated N.A. Officer by the insurance company. 13 Name, address and contact number of the N.A. designated officer of the insurance company.
14 Whether the designated officer of the N.A. insurance company submitted his report within 30 days of the DAR?Petition no. : 75386/16 Page No. 16/17
Noorjahan vs. JCL Musheed & Ors.
15 Whether the insurance company admitted N.A. the liability? If so, whether the designated officer of the insurance company fairly computed the compensation in accordance with law.
16 Whether there was any delay or deficiency N.A. on the part of the designated officer of the insurance company? If so, whether any action/direction warranted 17 Date of response of the claimant(s) to the N.A. offer of the insurance company.
18 Date of the award 04.12.2018 19 Whether the award was passed with the No consent of the parties?
20 Whether the claimant(s) examined at the Petitioner was time of passing of the award to ascertain examined. Financial his/their financial condition? condition was asked from the petitioner.
21 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?
22 Mode of disbursement of the award Entire amount is amount to the claimant (s). released.
23 Next date for compliance of the award. 04.01.2019
Digitally signed
by SAMEER
SAMEER BAJPAI
BAJPAI Date:
Announced in the Open Court
2018.12.07
14:17:36 +0530
on 04th day of December, 2018 (SAMEER BAJPAI)
Presiding Officer : MACT (S)
Saket Courts : New Delhi
Petition no. : 75386/16 Page No. 17/17