Delhi District Court
Mr. Rajender Prasad Mishra vs Mr. Ravi Rathor on 31 October, 2019
IN THE COURT OF SH. S.S. MLAHOTRA
PO:MACT-1 (NORTH): ROHINI: DELHI
MACT No. 29/19
FIR no. 660/18
PS Mukherjee Nagar
Mr. Rajender Prasad Mishra
S/o Sh. Ram Gopal Mishra
R/o H. No. 37, Gali No. 3,
A-Block, Kadi Vihar, Kadipur,
Burari, Delhi-84
.........Petitioner
VERSUS
1. Mr. Ravi Rathor
S/o Sh. Shiv Narain
R/o H. no. 422A, Gali No. 29,
C-Block, Khajuri Khas, Delhi.
2. Sh. Nitesh Kumar
S/o Sh. Jagbir Singh
R/o H. No. 88,
Gali No. 2, Sant Nagar,
Burari, Delhi.
3. TATA AIG Gen. Ins. Co. Ltd.
Plot No. C 001, Unit No. 810-816,
8th Floor, World Trace Centre,
Sector-16, Noida, UP.
........Respondents
DATE OF INSTITUTION : 16.01.2019 JUDGMENT RESERVED ON : 31.10.2019 Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 1 / 16
DATE OF AWARD : 31.10.2019
FINAL ORDER : 1,72,500/-
FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT 1 Date of accident 15.11.2018 2 Name of injured Mr. Rajender Prasad Mishra 3 Age of the injured 58 years 4 Occupation of the injured Private work 5 Income of the injured 20,000/- per month (not proved) 6 Nature of injury Grievous 7 Medical treatment taken by the From BJRM Hospital injured 8 Period of hospitalization 15.11.2018 to 28.11.2018 9 Whether any permanent No. disability ? If yes, give details
10. Computation of Compensation S.No Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment 5750/-
(ii) Expenditure on conveyance 10,000/-
(iii) Expenditure on special diet 10,000/-
(iv) Cost of nursing/attendant 9000/- (3000x3) for three
months
(v) Loss of earning capacity Nil
(vi) Loss of income 42,000/-(14000x3) as per
minimum wages
(vii) Any other loss which may require 7500/- (interest free as any special treatment or aid to the discussed in para no. 11 of the Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 2 / 16
injured for the rest of his/her life award).
12. Non-Pecuniary Loss:
(I) Compensation for mental and 10000/-
physical shock
(ii) Pain and suffering 15000/-
(iii) Loss of amenities of life Nil
(iv) Disfiguration Nil.
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil.
hardships, disappointment,
frustration, mental stress,
dejectment and unhappiness in
future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed 44% temporary disability and 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 Rs. 50,000/- lump sum (as capacity in relation of disability discussed in para 10 of the award)
(iv) Loss of future income - (Income X Nil.
%Earning capacity X Multiplier)
14. TOTAL COMPENSATION 1,51,750/-
15. INTEREST AWARDED 9%
16. Interest amount up to the date of 12,519.37 (11 months), award from 16.01.2019 to 16.12.2019 Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 3 / 16
17. Total amount including interest 1,64,269.37 rounded up to Rs. 1,65,000/-
18. Award amount released 50%
19. Award amount kept in FDRs 50%
20. Mode of disbursement of the award In phased manner amount to the claimant (s) (Clause29)
21. Next date for compliance of the 16.12.2019 award. (Clause 31) FORM - V AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 15.11.2018
2. Date of intimation of the accident by the 16.01.2019 investigating officer to the Claims Tribunal (Clause 2)
3. Date of intimation of the accident by the 16.01.2019 investigating officer to the insurance company. (Clause 2)
4. Date of filing of Report under section 173 Not mentioned Cr.P.C. before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident 16.01.2019 Information Report (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 16.01.2019 Company (Clause 11)
7. Date of Service of DAR on the 16.01.2019 complainant(s) (Clause 11) Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 4 / 16
8. Whether DAR was complete in all No. respects? (Clause 16)
9. If not, whether deficiencies in the DAR Yes removed later on?
10. Whether the police has verified the No. documents filed with DAR? (Clause 4)
11. Whether there was any delay or Yes deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Not appointed Officer by the insurance Company.
(Clause20)
13. Name, address and contact number of the Not appointed Designated Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Not appointed Insurance Company submitted his report within 30 days of the DAR? (Clause 20)
15. Whether the insurance company admitted Offer was not filed the liability? If so, whether the Designated Officer of the insurance company fairly computed the compensation in accordance with law.
(Clause 23)
16. Whether there was any delay or No designated deficiency o the part of the Designated officer was Officer of the Insurance Company? If so, appointed whether any action/direction warranted?
17. Date of response of the claimant (s) to Offer was not filed the offer of the Insurance Company.
(Clause 24) Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 5 / 16
18. Date of the Award 31.10.2019
19. Whether the award was passed with the Parties contested consent of the parties? (Clause 22) the case
20. Whether the claimant(s) were directed to Yes.
open saving bank account(s) near their PAN card provided place of residence? (Clause 18) on record
21. Date of order by which claimant(s) were 05.09.2019 directed to open saving bank account (s) near his place of residence and produce PAN Card and Aadhar 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) produced 31.10.2019 (copy the passbook of their saving bank account of bank passbook, near the place of their residence along adhar card as well as with the endorsement, PAN Card and PAN Card filed on Aadhar Card? (Clause 18) record along with extra copy for Ins.
Co)
23. Permanent Residential Address of the R/o H. No. 37, Gali Claimant(s) (Clause 27) No. 3, A-Block, Kadi Vihar, Kadipur, Burari, Delhi-84
24. Details of saving bank account(s) of the SBI, Branch Burari, claimant(s) and the address of the bank Delhi having a/c no.
with IFSC Code (Clause 27) 38793289111
IFSC Code no.
17930
25. Whether the claimant(s) saving bank Yes.
account(s) is near his place of residence? Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 6 / 16
(Clause 27)
26. Whether the claimant(s) were examined Yes.
at the time of passing of the award.
27. Account number, MICR Number IFSC SBI, Rohini Court Code, Name and branch of the bank of Complex Branch, the Claims Tribunal in which the award Delhi MICR Code no.
amount is to be deposited / transferred 110002427, IFSC
Code no.
SBIN0010323
AWARD
1. IO SI Vishnu Singh has filed the 'detailed accident report' (DAR) with respect to the road traffic accident in which Mr. Rajender Pal suffered injuries. IO, injured (Rajender Pal), owner (Nitesh Kumar) as well as Ld. Counsel for Ins. Co. were present on the date of filing the DAR. Copy of DAR was supplied to all the parties.
2. Brief facts of the accident as per DAR are that on 15.11.2018 the injured was driving his E-rickshaw and going to Parmanand Chowk from Camp Chowk and at about 1.40 pm when he was crossing T- point, one vehicle bearing registration no. DL1W 1029, which was being driven by its driver (respondent no. 1) at very high speed, rashly, negligently, without observing proper look out, without blowing horn and in violation of traffic rules came from back side and hit his said E-rickshaw. As a result of which accident, he fell down on road and suffered injuries. Public persons gathered there and someone called the police. He was removed to BJRM Hospital for treatment.
Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 7 / 16
3. Respondent no. 1 has filed his reply / written statement in which he have taken the plea that no accident has occurred with his vehicle and he has been falsely implicated in the present case. It is further stated that the vehicle was duly insured with respondent no. 3 at the time of accident and therefore responsibility, if any, to pay the compensation to the petitioner is of respondent no. 3.
4. Respondent no. 3 / Ins. Co. did not dispute the fact that the offending vehicle was duly insured with it. However, it has taken the plea that the respondent no. 1 was not holding the DL for the category of vehicle he was driving and hence the same is violation of their policy. It has further denied it liabilities on technical grounds.
5. After completion pleadings of parties, following issues were framed vide order dated 21.02.2019 :-
1. Whether petitioner suffered injuries in a vehicular accident occurred on 15.11.2018 at 1.40 pm at Burari Camp Road, Near Village Dhaka, T-point, Delhi by respondent no. 1(Ravi Rathor)? OPP.
2. Whether petitioner is entitled to compensation, if yes, what amount and from whom of respondents? OPP
3. Relief.
6. In order to prove the claim, injured, filed his affidavit Ex. PW1/A in evidence and examined himself as PW1. None from the respondents adduced any evidence.
I have heard Ld. Counsels appearing on behalf of parties and gone through the records. My findings issue-wise are as under :-
ISSUE NO.1 Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 8 / 16
Whether petitioner suffered injuries in a vehicular accident occurred on 15.11.2018 at 1.40 pm at Burari Camp Road, Near Village Dhaka, T-point, Delhi by respondent no. 1(Ravi Rathor)? OPP.
7. Onus to prove this issue was upon the petitioner and to prove that accident has been caused due to rash and negligent driving by respondent no. 1 and he suffered injuries due to such accident, he examined himself as PW1 and filed his affidavit (Ex.PW1/A), he reiterated the facts of the DAR. In his cross examination by Ld. Counsel for respondents, no suggestion was given to PW1 regarding rash and negligence or the manner in which the accident has occurred. The respondent no. 1 has not examined himself to prove that accident has not been caused due to his rash or negligent driving or that he has been falsely implicated in the present case. Rather in the cross examination of PW1 by the Ld. Counsel for respondent no. 1, accident has not been disputed and what is being disputed is only that respondent no. 1 was not driving the offending vehicle rashly or negligently. Not only this, Ld. Counsel for Ins. Co. has given suggestion to PW1 that accident has been caused by the negligence of the petitioner himself which suggestion although has also denied by the petitioner but from such suggestion of Ld. Counsel for responded no. 1 and from Ld. Counsel for Ins. Co. it stands proved that the accident had happened with the offending vehicle and as such delay in lodging the FIR is not much material. Therefore, as fas as involvement of offending Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 9 / 16
vehicle concerned, the involvement of the offending vehicle stands proved. Further, the criminal case record filed on record shows that respondent no. 1 was indicted by police for offences punishable under Section 279/338 IPC. There is nothing on record which may show that respondent no. 1 has ever approached to any higher authority or any forum against his such implication in this case. Apart from deposition of petitioner, the fact that petitioner suffered injuries in the accident is also supported from his medical record i.e. MLC etc. Considering all this, it stands proved that accident in question occurred on account of negligence on the part of respondent no. 1 and petitioner suffered injury on his person on account of rash and negligent driving by respondent no. 1.
This issue is accordingly decided in favour of petitioner and against the respondents.
ISSUE NO. 2.
Whether petitioner is entitled to compensation, if yes, what amount and from whom of respondents? OPP
8. It is not disputed that petitioner has suffered injuries due to this accident, therefore petitioner being injured in natural eye-witness of accident and well within his rights to claim compensation. NOW COMING TO QUANTUM OF COMPENSATION
9. It is matter of record that during the pendency of case, the petitioner was referred to BJRM Hospital for assessment of permanent disability and a disability certificate mentioning that petitioner has Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 10 / 16
suffered temporary disability has been received on record. However, it is further matter of record that petitioner has not taken steps for his further assessment. Ld. Counsel for petitioner has argued that though the disability of petitioner could not be re-assessed yet there is serious injuries on the person of injured as he has suffered 44% temporary disability and some amount be awarded to the petitioner towards temporary disability. Ld. Counsel for Ins. Co., on the other hand, argued that it is specifically mentioned in the disability certificate that petitioner has suffered temporary disability which is likely to improve, hence no amount be awarded on this head. I have heard Ld. Counsel for parties.
10.This court is of the opinion that assessing the disability by any doctor to the extent of 44% temporary disability definitely would cause some hardships throughout the life and injured would not be able to do, so many, things in his entire life for years together & at least, till the time temporary disability disappears. Further, the word "temporary disability" has not been defined but in general understanding, it means that a person is disable for a temporary period and he would recover after a period as opined by the expert / doctor but simultaneously one fact would remain that so far the disability remains temporary, a person is disable at least for that period which is suggested by the doctor concerned. Therefore, the court is of the opinion that certain amount be also awarded to the Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 11 / 16
petitioner, despite he being temporary disable, particularly for the time, during which he would remain disable and the court assesses the compensation of Rs.50,000/- on this head and in the interest of justice Rs. 50,000/- is awarded to the petitioner.
11.Petitioner has also prayed some amount towards future treatment stating that due to this accident he suffered fracture and a rod has been inserted in his left leg during the treatment which rod is to be removed in future for which he would be incurring some amount. I have perused the MLC as well as other treatment record. True, the petitioner suffered fracture and a rod has been inserted in his left leg. Considering the submission made, a sum of Rs. 7500/- is also awarded to the petitioner towards future treatment, however this amount would be interest free, which the Ins. Co. is directed to deposit separately apart from awarded amount and order with respect to release of this amount would only be passed when the petitioner would show relevant documents pertaining to removal of such rod.
12.Keeping in view documents available and proved on record, a total compensation of Rs. 1,65,000/- + Rs. 7500/- = 1,72,500/- which includes 11 months interest @ 9% per annum is awarded to the petitioner, details of which are mentioned in the above proforma. Now coming to the aspect as to which of the respondent is liable to pay the compensation to the petitioner:
Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 12 / 16
13.As stated above, the offending vehicle was duly insured with the respondent no. 3 / Ins. Co. and this fact has not been disputed by the Ins. Co. However, the plea of Ins. Co. that respondent no. 1 was not holding the driving licence for the category of vehicle he was driving, which is violation of their policy and as such Ins. Co. is not liable to indemnify the insured. He further during the course of arguments has argued that FIR has been registered after 12 days of the accident and no specific reason has been given with respect to delay in lodging the FIR. I have gone through the entire record. Although, Ld. Counsel for petitioner has raised an issue with respect to mala-fide on the part of the IO or even has apprehension that it may be a collusive suit but it is matter of record that no witness in support of the contention of Ld. Counsel for Ins. Co. has been examined. Further, respondent no. 3, not at all, at any point of time has mentioned that respondent no. 1 was not holding any driving licence or holding fake driving licence and it is proved on record the respondent no. 1 was holding valid driving licence, although of different category and as far as delay in lodging the FIR is concerned, IO has filed the DAR in the present case, which is not disputed by either of the respondents and hence by merely taking the technical plea and than not proving it by way of evidence would not allow the Ins. Co. to escape from its liabilities. Therefore, in view of the recent judgment of the Hon'ble Supreme Court to the effect that a person Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 13 / 16
having a valid driving licence can drive transport vehicle as well and therefore the said contention of the respondent no. 3 is not have much force and therefore, being insurer, respondent no. 3 is liable to indemnify the insured / owner and to pay the compensation to the petitioner.
This issue is accordingly decided in favour of petitioner and against the respondents.
ISSUE NO. 3 (RELIEF).
14.Petition in hands is allowed. Respondent no. 3 is directed to pay a 1,72,500/- to the petitioner failing which it would pay the interest @ 9% on the amount of Rs. 1,51,750/- to the petitioner w.e.f. 16.12.2019, till realization.
DISBURSEMENT
15.Petitioner has got his bank account opened in terms of modified direction of Hon'ble High Court and filed photocopy of his bank passbook of such account. Considering age of petitioner, who is 58 years of age, it is directed that out of the amount of compensation, 50% amount be kept in interest FDR for period of 1 year and remaining 50% amount be released to him through his saving bank account, detail of which are mentioned in the above proforma, this amount will be withdrawn only by way of withdrawal slip and by no other mode or digital mode i.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc. Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 14 / 16
16.The salient features as prescribed in the judgment in Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. FAO No. 842/2003 decided on 16.12.2009 are to be applied: -
1. The fixed deposit be renewed automatically till the period prescribed by the Court.
2. The interest on the fixed deposit be paid monthly.
3. The monthly interest be credited automatically in the saving account of the claimant.
4. Original fixed deposit receipt be retained by the bank in safe custody. However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
5. The original fixed deposit receipt be handed over to the claimant at the end of the fixed deposit period.
6. Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
7. No cheque book and debit / credit card shall be issued to the claimant without permission of the Court.
8. No loan, advance or premature withdrawal or premature encashment shall be allowed on the fixed deposit without permission of the Court.
9. The amount would be directly credited in the bank account of the petitioner, without any necessity of visiting her to court, where Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 15 / 16
FDRs are kept.
10.The bank of the petitioner would make necessary endorsement on the passbook of the petitioner and in its own record as "MACT case" and amount to be disbursed only in terms of the order of the court.
11.Bank manager concerned to inform the court in writing prior to releasing of any amount to the petitioner, to the effect that compliance of the order of the Hon'ble High Court has been made with respect to disbursement. In no case, amount of award can be released without filing a compliance report in the court and the amount, which the respective petitioner would be withdrawing can only be allowed through withdrawal slip and by no other mode or digital mode i.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc. Respondent no. 3 is directed to deposit amount of compensation, as stated above, with this tribunal within 30 days, with advance notice to petitioner.
File be consigned to record room.
Notice be also sent to the In-charge, Computer Branch (North) to send a copy of this judgment to Nodal Officer of Corporation Bank on his Email ID i.e. [email protected]. Digitally signed by S S MALHOTRA SS MALHOTRA Date:
2019.10.31 ANNOUNCED IN THE OPEN (S.S. MALHOTRA)17:23:52 +0600 COURT ON 31.10.2019 PO, MACT- NORTH, ROHINI, DELHI Rajender Prasad Mishra Vs. Ravi Rathor & Ors. Suit No. 29/19 16 / 16