Delhi District Court
C. Malsawmsangi @ Mami vs . Yogesh on 19 December, 2022
IN THE COURT OF MS. SHEFALI BARNALA TANDON
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL, PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
C. MALSAWMSANGI @ MAMI VS. YOGESH
YADAV & ORS.
DAR NO. 538/17
Ms. C. Malsawmsangi @ Mami
D/o Sh. Rohlua,
R/o 66 ECM, Vaih, 39 Saiha, Mizoram.
......Petitioner/Injured
Versus
1. Sh. Yogesh Yadav (Driver of the offending vehicle)
S/o Sh. Mahavir Singh
R/o 1559, Atta Mohalla Near RD City,
Wazirabad, Gurgaon, Haryana.
2. Sh. Hardev Singh (Owner of the offending vehicle)
S/o Sh. Lakhbir Singh
R/o Plot No. 8, Holy Enclave Phase -1,
Amritsar, Punjab.
3. M/s New India Assurance Co. Ltd. (Insurer)
Through its Manager,
2/A, Jeevan Raksha Building,
Asaf Ali Road, New Delhi.
.....Respondents
Date of filing of DAR : 07.06.2017
Date of framing of issues : 13.09.2017
Date of concluding arguments : 26.11.2022
Date of decision : 19.12.2022
DAR NO. 538/17 Page 1 of 20
AWARD/JUDGMENT
1. The claim for compensation in the present Detailed Accident Report (DAR) relates to injuries suffered by petitioner in a road accident that took place on 01.11.2016, at about 2 am, Near SP Marg, MTC T point at Gyarah Murti, New Delhi, regarding which an FIR bearing no.192/2016, under Sections 279/337/304-A IPC was registered at PS Chanakyapuri. The offending vehicle involved in this case is a car bearing registration no. PB-02CN-8474, which at the relevant time of accident was being driven by respondent no. 1, owned by respondent no.2 and insured with respondent no. 3.
2. The case of petitioner, briefly stated, is that on the aforesaid date, time and place of accident, the petitioner along with her friends were proceeding from Tagore Garden to India Gate via Sardar Patel Marg in a car bearing registration No. PB- 02CN-8474 which was being driven by respondent no. 1 in a rash and negligent manner. All the occupants of car requested the respondent no. 1 not to drive the car in rash and negligent manner, but he did not pay any heed to their request. When they reached at T Point of Gyarah Murti, S.P. Marg, the respondent no. 1 took a sharp left turn at a fast speed due to which the car struck against the divider of the road and went other side of the road and turned turtle. It is further stated that the petitioner sustained multiple grievous injuries and she was removed to Dr. RML Hospital where her MLC was prepared and shifted to Apollo Hospital for further treatment.
DAR NO. 538/17 Page 2 of 203. R-1 has filed his written statement to the DAR wherein it is stated that the respondent no. 1 was having a valid and effective driving license at the time of accident. It is further stated that the petitioner in collusion with the police officials has falsely implicated the respondent no. 1 in the present matter. It is further stated that the offending vehicle stood insured with respondent no. 3/New India Assurance Co. Ltd. w.e.f. 30.01.2016 to 29.01.2017.
4. Respondent no. 2 has not filed his written statement to the DAR.
5. The respondent no. 3/Insurance Company had filed written statement wherein it is admitted that the offending vehicle was insured with them in the name of respondent no. 2 w.e.f. 30.01.2016 to 29.01.2017 and the liability of Insurance Company is subject to the terms and conditions of the insurance policy. It is further stated that the driver was having learner's license at the time of accident and as per condition of learner license under Rule 3 of CMV Rules 1989 which prohibits him from driving any motor vehicle unless he has besides him a person duly licensed to drive the vehicle and vehicle carries "L" plates both in front and in rear of the vehicle. It is further stated that the police had seized the offending vehicle which do not have "L" plates both in front and in rear of the offending vehicle and hence, there is violation of Rule 3 of the CMV Rules, 1989 and the Insurance Company is not liable to pay any compensation to the petitioner.
6. It is pertinent to mention that two connected DARs DAR NO. 538/17 Page 3 of 20 bearing Nos. D-538/17 and D-541/17 arose out of the same accident and vide order dated 13.09.2017, they were consolidated for the purpose of trial and decision and DAR bearing No. D- 538/17 was directed to be treated as lead case wherein the evidence shall be recorded. On the same day, the following consolidated issues were framed by the Ld. Predecessor of the tribunal as :-
1. Whether the injured Ms. C. Malsawamsangi sustained injuries and the deceased Ms. T.T. Jesslelyn suffered fatal injuries in the accident which occurred on 01.11.2016, at about 2 am, at SP Marg, MTC T Point, at 11 Murti, New Delhi caused by rash and negligent driving of vehicle No. PB-02CN-8474 being driven by respondent no.1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. The Tribunal heard arguments advanced by Sh. D.S. Mehta, Ld. Counsel for petitioner and Sh. Rajesh Jagirdar, Advocate for respondent no.3/Insurance Company. The case record has also been perused, including the written final arguments as well as case laws.
8. The finding on the aforesaid issues is reproduced in succeeding paragraphs hereinafter.
DAR NO. 538/17 Page 4 of 20 ISSUE No. 1Whether the injured Ms. C. Malsawamsangi sustained injuries and the deceased Ms. T.T. Jesslelyn suffered fatal injuries in the accident which occurred on 01.11.2016, at about 2 am, at SP Marg, MTC T Point, at 11 Murti, New Delhi caused by rash and negligent driving of vehicle No. PB-02CN-8474 being driven by respondent no.1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
The onus to prove this issue was upon the petitioner. In order to prove negligence of respondent no. 1, the petitioner has examined herself as PW-2 and has filed her evidence by way of affidavit as Ex. PW-2/A wherein she has narrated the mode and manner of accident, injuries sustained and treatment taken therefor.
During cross-examination, PW2 deposed that she was sitting on the middle of rear seat in the offending vehicle at the time of accident, which was being driven by respondent no. 1. She further deposed that she does not know whether there was any sticker of 'learner' in the front or rear glass of the offending vehicle. She denied the suggestion that the respondent no. 1 was not driving the offending vehicle rashly and negligently.
9. It can be said that during his cross examination, nothing material could be extracted out from her testimony which can make this tribunal to disbelieve or discard her testimony. The testimony of petitioner is duly corroborated by the DAR filed by the IO. Moreover, it has not been disputed that DAR NO. 538/17 Page 5 of 20 R1 stands already chargesheeted in the above criminal case for offences punishable under Sections 279/337/304A IPC for causing injuries on the person of petitioner by his rash and negligent driving of the above said vehicle and the same in itself is a strong circumstance to corroborate the testimony of petitioner on above aspects.
10. Pertinently, Respondent no. 1 himself was the best witness who could have stepped into the witness box to rebut his involvement in the aforesaid accident, which he has failed to do. Therefore, an adverse inference is drawn against the respondent no. 1/driver in terms of judgment of Hon'ble High Court of Delhi passed in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi)
310.
11. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters, the facts are required to be established on preponderance of probabilities and not beyond reasonable doubt, as are required in a criminal prosecution. Reference in this regard is made to the judgment of Hon'ble Apex Court reported as (2009) 13 SC 530 in Bimla Devi and others Vs. Himachal Road Transport Corporation and others, wherein it has been observed :-
"......Strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants and the claimants were merely to establish their case on the touchstone of DAR NO. 538/17 Page 6 of 20 preponderance of probability."
12. Reliance has been placed upon the judgment of the Hon'ble Apex Court in Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 has observed that ".........Filing of charge sheet against the driver prima facie points towards his complicity in driving the vehicle negligently and rashly. It has been further observed that even when the accused were to be acquitted in the criminal case, the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal."
13. In view of foregoing discussion, this issue is duly substantiated by the documentary evidence i.e. chargesheet and thus, it stands proved on preponderance of probabilities that the aforesaid accident took place due to rash and negligent driving of the offending vehicle bearing no. PB-02CN-8474 which was being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 at the relevant time of accident. Hence, this issue is decided in favour of the petitioner and against the respondents.
ISSUE NO.2 Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
14. As the issue no.1 has been proved in favour of the petitioner, she has become entitled to be compensated for the injuries suffered by her in the accident, but the computation of compensation and liability to pay the same are required to be DAR NO. 538/17 Page 7 of 20 decided.
15. In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In injury cases, a claimant is entitled to two different kinds of compensation i.e. pecuniary as well as non-pecuniary damages. The Hon'ble Apex Court in Raj Kumar vs. Ajay Kumar (2011) 1 SCC 343) has laid down heads under which compensation is awarded in personal injury cases:-
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses. Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
16. Having considered the ratio of aforesaid judgment, the compensation payable to petitioner is assessed hereinafter DAR NO. 538/17 Page 8 of 20 under the following heads:-
(I) Medical or Treatment Expenses
17. As per MLC of petitioner, she has sustained laceration on right nostril approx. 1 cm X 0.5 cm and laceration approx 3 cm X 0.5 cm just below the nose on right side. It further reflects that thereafter, the petitioner got absconded and the nature of injuries sustained by her appears to be simple.
The petitioner has tendered on record her medical bills Ex. PW2/1 (colly) along with summary of medical bills which are totalling to a sum of Rs.36,840/-. During cross examination, she admitted that RML hospital had not referred her to the Apollo Hospital. She denied the suggestion that the medical bills have no connected with the injuries sustained by her in the accident and the medical bills are not genuine.
18. Needless to say, the insurance company has not led any evidence to show that the said medical bills do not relate to the injuries suffered by the petitioner in the aforesaid accident. Thus, the testimony of PW-2 that she spent the aforesaid amount towards medical expenses remained unrebutted and uncontroverted. In the absence of any plausible evidence produced by respondents on record, there is no reason to disbelieve the testimony of PW-2 that she has spent the aforesaid amount towards medical expenses. Hence, she is held entitled to Rs. 36,840/- towards her medical expenses.
DAR NO. 538/17 Page 9 of 20(II) Loss of actual earnings
19. The petitioner in her affidavit Ex. PW1/A has claimed that she was student of Higher Education and doing private job and getting salary of Rs. 15,000/- per month, but due to the injuries sustained in the accident, she could not do her study as well as job for about two months. However, during cross examination, she admitted that she has not filed any proof of salary.
20. Perusal of record reveals at the time of accident, the petitioner was residing in Delhi for pursuing higher education and the same fact is mentioned in the chargesheet. Since the profession and income of the petitioner has not been established on record, the minimum wages of unskilled person is taken into account as per rates prevalent in Delhi, which was Rs. 9,724/- per month at the time of accident. Keeping in view the duration of her treatment, this tribunal feels it just and reasonable to compensate her for loss of earning equivalent to a period of one month. Therefore, s he is being awarded an amount of Rs. 9,724/- under this head.
(III) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
21. As stated above, the petitioner had suffered injuries in the accident. However, it is not possible to exactly compensate her for the shock, pain and sufferings etc. which she had actually suffered because of the above injuries and disability, but an effort has to be made to compensate her for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of DAR NO. 538/17 Page 10 of 20 the injuries suffered by the petitioner and duration of the treatment taken by her etc., an amount of Rs.7,500/- each is being awarded to her towards mental and physical shock & for pain and sufferings. Further, an amount of Rs.5,000/- is also awarded to her towards the loss of amenities suffered by her during the said period of her treatment. Thus, she is awarded total amount of Rs.20,000/- under this head.
(IV) Conveyance, Special Diet and Attendant Charges
22. The petitioner in her affidavit Ex. PW2/A has further claimed that she had spent Rs. 10,000/- on special diet, Rs. 10,000/- on conveyance. Still this tribunal can very well take note of the requirement of conveyance for petitioner for frequently visiting the hospitals and doctors in connection with his treatment and special diet for her early recovery from the injuries suffered because of the accident. Hence, an amount of Rs.5,000/- each is being awarded to the petitioner towards conveyance and special diet. However, no amount is being awarded towards attendant charges. Therefore, the petitioner is held entitled to an amount of Rs.10,000/- under this head.
Issue No.3/Relief
23. In view of foregoing discussion, the petitioner is thus awarded a sum of Rs.76,564/- (Rs. 36,840/- + Rs. 9,724/- + Rs. 20,000/- + Rs. 10,000/-) (Rupees Seventy Six Thousand Five Hundred Sixty Four only) along with 9% interest from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, DAR NO. 538/17 Page 11 of 20 during the course of this inquiry, shall be liable to be excluded from the award amount.
RELEASE
24. The entire award amount is directed to be released in the saving bank of petitioner opened/to be opened near the place of her residence, as directed vide order dated 03.05.2018, through RTGS/NEFT or any other electronic mode.
LIABILITY
25. The insurance company has taken a defence that it is not liable to pay the compensation as the respondent no. 1 was having the learner license at the time of accident, but there is no "L" plates both in front and in rear of the offending vehicle.
In order to prove the same, the respondent no. 3 has examined Ms. Swati Sareen, Administrative Officer (Legal) from their office who tendered on record copy of notice under Order 12 Rule 8 CPC as Ex. R3W1/A (OSR), copy of postal receipts as Ex. R3W1/B & Ex. R3W1/C (colly) and certified copy of insurance policy as Ex. R3W1/D. She deposed that there is no "L" plates in front and rear side of the offending vehicle as reflected in the photographs of the offending vehicle filed by the IO and hence, the driver and owner had breached the terms and conditions of the insurance policy.
26. In the written submissions, it is stated on behalf of Respondent no. 1 that since the respondent no. 1 was driving the vehicle along with Sh. Manjinder Singh @ DAR NO. 538/17 Page 12 of 20 Mani, who was holding a valid driving license, there is no breach of terms and conditions of the policy.
27. Perusal of record reveals that along with the written submissions, respondent no. 1 has filed his learner driving license along with the driving license of Sh. Manjinder Singh @ Mani. Even the IO has also seized the learner driving license of respondent no. 1 and driving license of Sh. Manjinder Singh, who was sitting with respondent no. 1 on conductor seat during investigation as mentioned in the chargesheet.
28. Perusal of learner license of respondent no. 1 reveals that the same is valid for MCWG LMV for a period w.e.f. 16.06.2016 to 15.12.2016, which covers the date of accident, i.e. 01.11.2016. The respondent no. 1 was driving the offending vehicle accompanied by Sh. Manjinder Singh @ Mani who was holding a valid driving license which is apparent from the record and as per statement of petitioner to the police. Further, the petitioner has also stated that Sh. Manjinder Singh was sitting on conductor seat means at the front seat besides the driver and hence, he is in a position to control or stop the vehicle.
29. It is relevant to refer a decision of Hon'ble Apex Court passed in National Insurance Company Limited v. Swaran Singh, 2004 (1) A.C.J. 1 wherein the Hon'ble Apex Court has held that "a person holding Learner's Licence would also come within the purview of "duly licensed" as such, a licence is also granted in terms of the provisions of the Motor Vehicles Act and the Rules framed thereunder". It has been further observed that even if there exists a condition in the DAR NO. 538/17 Page 13 of 20 contract of insurance that the vehicle cannot be driven by a person holding a learner's licence, the same would run counter to the provisions of Section 149 (2) of the Motor Vehicles Act.
Reliance has been placed upon the judgment of Hon'ble High Court of Delhi in case National Insurance Co. Ltd. Vs. Sonia Mittal & Ors., MAC Appeal No. 1043/2016, decided on 12.10.2017 wherein it was held that "what is the crucial requirement is the special training for driving a vehicle meant for transportation of hazardous goods. That requirement has been fulfilled. Securing of endorsement in wake of such certification of the special skill was more of ministerial nature".
30. Adverting to the facts of the present case, corollary can be drawn from the aforesaid judgment in the present set of facts and circumstances that the driver of the offending vehicle was having a valid learner license and was accompanied by a person who was having a valid driving license and was sitting in a position so that he can control or stop the vehicle, then the "L" plates on the front and rear of the offending vehicle is only non compliance of traffic rules which does not go to the roots of contract with the Insurance Company and hence, there is no fundamental breach of terms and conditions of the insurance policy.
31. All the respondents are though being held jointly and severally liable to pay the awarded amount of compensation to petitioners. Respondent no. 3. being insurer of offending vehicle, is directed to deposit the award amount with UCO Bank, Patiala House Court Branch, along with interest @ 9% per annum from the date of filing of claim petition by DAR NO. 538/17 Page 14 of 20 RTGS/NEFT/IMPS in bank account being maintained in the above said bank in name of this tribunal within 30 days from today, failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. In case even after lapse of 90 days from today, respondent no. 3 fails to deposit this compensation with interest, in that event, in light of judgment of the Hon'ble High Court of Delhi passed in the case of New India Assurance Company Limited Vs. Kashmiri Lal2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Respondent no. 3 with a cost of Rs.5,000/-.
32. The respondent no. 3 shall inform the petitioner and his counsel through registered post that the cheques/DDs of the awarded amount is being deposited so as to facilitate him to collect his cheques/DDs.
33. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
34. Further, Nazir is directed to maintain the record in Form XVIII as per the directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021.
35. The particulars of Form-XVII of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the Rajesh Tyagi Vs. Jaibir Singh & Ors.(supra) on 08.01.2021, are as under:-
1. Date of the accident 01.11.2016 DAR NO. 538/17 Page 15 of 20
2. Date of filing of Form I- First NA Accident Report (FAR)
3. Date of delivery of Form-II to the NA victim(s)
4. Date of receipt of Form-III from NA the Driver
5. Date of receipt of Form-IV from the owner NA
6. Date of filing of the Form-V- NA Interim Accident Report (IAR)
7. Date of receipt of Form-VIA and NA Form VIB from the Victim (s)
8. Date of filing of Form-VII- 07.06.2017 Detailed Accident Report (DAR)
9. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Not given Designated Officer by the Insurance Company.
11. Whether the Designated Officer of No the Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No deficiencies on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the claimant(s) Legal offer not of the offer of the Insurance filed Company.
14. Date of the award 19.12.2022
15. Whether the claimant(s) were directed to open savings bank Yes account(s) near their place of residence?DAR NO. 538/17 Page 16 of 20
16. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card 03.05.2018 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).
17. Date on which the claimant(s) produced the passbook of their savings bank account near the place Yet to furnish of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of R/o Village the Claimant(s) Lamb Post, District Baghpat, Uttar Pradesh.
19. Whether the claimant(s) savings Yet to furnish bank account(s) is near his place of residence?
20. Whether the claimant(s) were examined at the time of passing of No the award to ascertain his/their financial condition?
36. File be consigned to Record room after completion of necessary formalities. Separate file be prepared for compliance report and be put up on 10.02.2023.
Announced in the open court (Shefali Barnala Tandon) on 19.12.2022 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format DAR NO. 538/17 Page 17 of 20 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM XVI
1. Date of accident : 01.11.2016
2. Name of the injured : C. Malsawm Sangi @ Mami
3. Age of the injured : 28 years
4. Occupation of the injured: Minimum wages of unskilled worker in Delhi
5. Income of the injured : Rs. 9,724/- per month
6. Nature of injury : As mentioned above
7. Medical treatment taken by the injured: Dr. RML Hospital and Apollo Hospital
8. Period of hospitalization : As discussed above
9. Whether any permanent disability?: Nil
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs.36,840/-
(ii) Expenditure on conveyance Rs. 5,000/-
(iii) Expenditure on special diet Rs. 5,000/-
(iv) Cost of nursing/attendant Nil
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs. 9,724/-
(vii) Any other loss which may Nil
require any special treatment
or aid to the injured for the
rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental Rs.7,500/-
and physical shock
(ii) Pain and suffering Rs.7,500/-
(iii) Loss of amenities of life Rs. 5,000/-
(iv) Disfiguration Nil
DAR NO. 538/17 Page 18 of 20
(v) Loss of marriage prospects Nil
(vi) Loss of earning, Nil
inconvenience,
hardships,disappointment,fru
stration, mental stress,
dejectment and unhappiness
in future life etc.
13. Disability resulting inloss
of earning capacity
(i) Percentage of disability
assessed and nature of Nil
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 Nil
earning relation to disability
(iv) Loss of future income Nil
14. Total Compensation Rs.76,564/-
15. Interest Awarded 9% pa from date of
filing of DAR till
deposit in 30 days
and 12% thereafter.
16. Interest amount up to the Rs. 38,154.04
date of award
17. Total amount including Rs. 1,14,718.04
interest (rounded
off to Rs.
1,15,000/-)
18. Award amount released Entire
amount
released
19. Award amount kept in the Nil
FDRs/ Motor Accident
Claims Annuity Deposit
(MACAD)
20. Mode of disbursement of Through
the award amount to the bank
claimant (s)
DAR NO. 538/17 Page 19 of 20
21. Next date for compliance 10.02.2023
of the award
(Shefali Barnala Tandon)
PO/MACT, New Delhi
19.12.2022
DAR NO. 538/17 Page 20 of 20