Delhi District Court
Balbir vs . Vijender & Ors on 16 August, 2017
IN THE COURT OF MS. MADHU JAIN:
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL: SOUTH
EAST DISTRICT/ SAKET COURTS: NEW DELHI
FIR No. 489/16
MACT No. 223/2017 - PS Jaitpur
Balbir Vs. Vijender & Ors
Injury Case
Sh. Balbir Singh, S/o Sh. Mohan Singh
R/o Village Gangawas, PS Ahmad Garh, Distt. Bulandshahar, U. P.
Also At: B634, BlockB, Rajvir Colony, Gharoli Extension, New Delhi.
........................... Petitioner/Claimant
Versus
1. Sh. Vijender (driver cum owner)
R/o Village Firojpur Jarka, Ward No. 4, Dist. Nuh, Haryana.
2. IFFCO Tokio General Insurance Company Limited (Insurer)
Add District Centre, Saket, New Delhi.
.....................Respondents
Initial date of Institution : 30.01.2017 Date of reserving the judgment : 16.08.2017 Date of pronouncement : 16.08.2017 Judgment:
Present claim proceedings initiated on the basis of Detailed Accident Report under Section 166 (4) of Motor Vehicle Act filed by the police on 30.01.2017.
1. Brief facts of the case are that on 01.09.2016, injured was going to Badarpur via Agra Canal Road. When he reached on the road going towards NTPC, in the meantime, offending vehicle i.e. Swift Dzire bearing no. HR28C4703 being driven by respondent no. 1 in a very high speed, rashly and negligently came MACT No. 223/17 Balbir Singh Vs. Vijender (Pg 1 of 10) and hit the motorcycle of injured from the front side. Due to which injured fell down on the road and sustained multiple injuries. Thereafter, injured was removed to JPN Apex Trauma Centre, where his MLC was prepared by the concerned doctor.
2. FIR number 489/2016 under Section 279/337 IPC, PS Jaitpur was registered.
During investigation, police conducted the investigation. On completion of investigation found respondent no. 1 driver/accused of rash and negligent driving, hence chargesheeted him for the commission of offence under section 279/337 of Indian Penal Code.
3. During proceedings, legal offer for a sum of Rs. 6000/ filed by insurance company which was not accepted by the petitioner.
4. From pleadings, following issues were framed vide order dated 26.04.2017 which are as under: (1.) Whether the petitioner suffered injuries to a road accident which took place on 01.09.2016 involving vehicle bearing registration No. HR28G 4703 which was driven in a rash and negligent manner by respondent no. 1/Vijender, owned by respondent No. 1/Vijender and insured by respondent no. 2 (insurance company)?
(2) To what amount of compensation the petitioner is entitled to claim and from whom?
(3) Relief.
5. During evidence, petitioner Sh. Balbir Singh examined himself as PW1 on 05.05.2017 and relied upon certain documents i.e DAR is collectively Ex. PW1/A, copy of his office ID is Ex. PW1/B, copy of salary slip for the month MACT No. 223/17 Balbir Singh Vs. Vijender (Pg 2 of 10) of August, 2016 is Ex. PW1/C, medical bills is Ex. PW1/D and his Election ID is Ex. PW1/E.
6. During crossexamination, PW1 stated that after the accident, he was taken to the Truama Centre. After his treatment, he was issued Discharge summary which is a part of DAR Ex. PW1/A (colly). He further admitted that he has not placed any record any prescription or discharge summary in respect of Ex. PW1/D. He further stated that he has not applied any medical reimbursement from his department. He further admitted that he has not placed on record any document to show that any bedrest was advised by any doctor or he was advised to take high protein diet in this regard. He further admitted that he has not placed on record any leave certificate issued from his department.
7. During evidence, petitioner has examined Sh. Pradeep Kumar, Manager, Malik Hospital as PW2 on 16.08.2017, who has stated that he has been authorized to depose the present case by Dr. Pradeep Malik, Orthopedics Surgeon, Malik Hospital, the authority letter is Ex. PW2/1 and the treatment documents/papers of petitioner namely Balbir Singh are collectively Ex. PW2/2 (colly, 10 pages). This witness was duly cross examined by counsel for insurance company in detail.
8. No evidence to the contrary has been led by any of the respondents.
9. After hearing arguments and considering the material on record, my issue wise findings are as follows: Issue no. 1 (Negligence)
10. PW1 in his affidavits of evidence (Ex.PW1/1) categorically stated that he got injuries due to the rash and negligent driving of respondent no. 1. Nothing MACT No. 223/17 Balbir Singh Vs. Vijender (Pg 3 of 10) came in his cross examination to disbelieve his version. His version is duly corroborated by police investigation. Police during investigation also found respondent no.1 accused of rash and negligent driving, hence chargesheeted him for commission of offence under section 279/337 of Indian Penal Code.
11. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court (MP) in case titled as "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of Hon'ble High Court of Delhi in "National Insurance Company Limited Vs. Pushpa Rana" (2009 ACJ 287), wherein it was 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 addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed 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.
MACT No. 223/17 Balbir Singh Vs. Vijender (Pg 4 of 10)
12. In view of the above discussion, petitioner is able to prove that he suffered injuries due to rash and negligent driving of the respondent no. 1. Accordingly the issue no. 1 is decided in favour of the petitioner and against the respondents. Issue no 2 (Compensation) Medical Expenses :
13. PW1 petitioner in his affidavit of evidence stated that after accident he was removed to the AIIMS Trauma Center. As per MLC No. 581249 dated 01.09.2016, doctor who had examined the petitioner after the accident had opined about the nature of injuries suffered by the petitioner to be simple injuries. In abovesaid MLC, visible injuries are mentioned as "WOUND OF 15X10 CM DEGLOVING INJURY OF RIGHT SIDE SUPRAPOPLITEAL REGION OF RIGHT THIGH, EXPOSING SOFT TISSUE, TENDONS AND BONE". As per Transfer Out Form issued from AIIMS Trauma Centre. injured was admitted on 01.09.2016 and transferred to another hospital on the same day. Petitioner has examined Sh. Pradeep Kumar, Manager, Malik Hospital as PW2 to prove admission and treatment done in Malik Hospital. As per Admission Summary Record Ex. PW2/2 of Malik Hospital, Bulandshahar, U. P, petitioner was admitted on 01.09.2016 and was discharged on 10.09.2016. He was diagnosed to have suffered Open Injury Thigh. He was operated under Spinal Anesthesia on 01.09.2016. Petitioner for claiming expenses relied upon medical bills (Ex. PW1/D colly) for a total sum of Rs. 57,700/. Nothing material has come in his in cross examination to dispute the veracity of these bills, Hence a sum of Rs. 58,000/ is granted to the petitioner towards medical expenses.
14. Compensation for pain and suffering: Petitioner is found to have suffered simple injury. Petitioner has suffered not only the physical injuries but also suffered mental trauma hence, keeping in view nature of injuries, duration of treatment, trauma of accident a sum of Rs. 30,000/ is granted towards pain MACT No. 223/17 Balbir Singh Vs. Vijender (Pg 5 of 10) and suffering.
15. Loss of income/leaves during treatment: PW1 in his affidavit of evidence stated that at the time of accident, he was working as a Constable in Uttar Pradesh Police and was drawing a salary of Rs. 35,326/ per month. But due to the said accident, he could not join his work till 03.01.2017. Petitioner has not filed any document regarding his leaves. He has also admitted in his cross examination that he has not placed any document to show advise of any doctor for bed rest. Petitioner is a Government Servant working as Constable in UP Police and he must be receiving his salary during leave period and all the leave record of petitioner must be maintained with his Department. Perusal of record shows that no bed rest has been advised by any doctor to the petitioner. Therefore, even if, any leaves were taken by the petitioner, they could not be on account of the injuries suffered by him in the accident. Though there is nothing on record to show that petitioner was advised bed rest but petitioner must have remained on leave during the period of his admission in hospital and inference can be taken that petitioner would have taken leave about 15 days. Petitioner has filed his salary slip for the month of August 2016 Ex. PW1/C. As per the salary slip Ex. PW1/C, petitioner was drawing a net salary of Rs. 23,205/ per month constituting various heads. However, only Basic, HRA and DA can be considered. Hence, the income of injured is to be assessed as Basic of Rs. 14,670/ + DA of Rs. 18,338/ + HRA of Rs. 1000/ which comes to be Rs. 34,008/ per month. Hence, the income of the injured is assessed as Rs. 34,008/ X 15 days = Rs. 17,004/. Accordingly, petitioner is granted Rs. 17,004/ towards loss of income during treatment.
16. Compensation for Special Diet, Attendant Charges and Conveyance: PW1 in his affidavit of evidence has stated that he has spent about Rs. 1,50,000/ on MACT No. 223/17 Balbir Singh Vs. Vijender (Pg 6 of 10) conveyance charges, attendant charges and special diet etc for his treatment but he has not filed any documentary evidence regarding special diet, conveyance and attendant charges. Keeping in view the nature of injuries, duration of treatment, a sum of Rs. 3000/ each is granted under each head. Thus total sum of Rs. 9000/ is granted towards heads of attendant, conveyance and special diet charges.
17. Thus, the total compensation to which petitioner is entitled comes as under: S.No Details Amount 1 Compensation for medical expenses Rs. 58,000/ Compensation for special diet, attendant charges Rs. 9000/ 2 and conveyance 3 Compensation for pain and sufferings Rs. 30,000/ Compensation for loss of income/leaves during Rs. 17,004/ 4 treatment Total Rs. 1,14,004/ Hence, the petitioner is awarded a total amount of Rs. 1,14,004/ (Rupees One Lacs Fourteen Thousand Four Only).
Relief :
18. The petitioner/injured is hereby awarded a sum of Rs. 1,14,004/ (Rupees One Lacs Fourteen Thousand Four Only) alongwith interest @ 9% per annum from the date of filing of the present petition till the date of realization in favour of petitioner against the respondents on account of their liability being joint and several.
19. The driver R1 is the principal tort feasor and being the owner vicariously liable for his acts. R3 being insurance company liable to indemnify the R1 driver MACT No. 223/17 Balbir Singh Vs. Vijender (Pg 7 of 10) cum owner.
20. In view of the above discussion, insurance company is directed to deposit the award amount in the court within a period of 30 days from today alongwith the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay.
21. Directions for the respondent No.2/Insurance company: The Respondents2 is directed to file the compliance report of their having deposited the awarded amount with the State Bank of India, Saket Court Branch in this tribunal within a period of 30 days from today.
22. The Respondent shall intimate to the claimant/petitioner about it having deposited the cheque in favour of petitioner in terms of the award, at the address of the petitioner mentioned at the title of the award, so as to facilitate him to withdraw the same.
23. Copy of this Award be given to the parties free of cost and a copy be also sent to SBI, Saket Court Complex Branch for record and compliance and copy be also sent to DLSA, SE and Ld. MM concerned.
24. FormIV of the Modified Claims Tribunal Agreed Procedure to be mentioned in the Award is as under:
1 Date of the accident 01.09.2016 2 Date of intimation of the accident by the Factum report is filed but date Investigating Officer to the Claims of receiving is not mentioned. Tribunal.
3 Date of intimation of the accident by the NA Investigating Officer to the Insurance Company.
MACT No. 223/17 Balbir Singh Vs. Vijender (Pg 8 of 10) 4 Date of filing of Report under Section Not known.
173 Cr.P.C. before the Metropolitan Magistrate.
5 Date of filing of Detailed Accident 30.01.2017 Information Report (DAR) by the Investigating Officer before Claims Tribunal.
6 Date of service of DAR on the 30.01.2017 Insurance Company.
7 Date of service of DAR on the 30.01.2017 claimant(s).
8 Whether DAR was complete in all Yes respects?
9 If not, state deficiencies in the DAR? NA 10 Whether the police has verified the Yes documents filed with DAR?
11 Whether there was any delay or There is delay in filing of deficiency on the part of the DAR by the IO but he filed Investigating Officer? If so, whether any applications for extension of action/ direction warranted? time for filing DAR. No action was warranted.
12 Date of appointment of the Designated NA Officer by the Insurance Company.
13 Name, address and contact number of NA the Designated Officer of the Insurance Company.
14 Whether the Designated Officer of the Not filed within 30 days.
Insurance Company submitted his report within 30 days of the DAR?
15 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.
16 Whether there was any delay or NA deficiency 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 26.04.2017 the offer of the Insurance Company.
18 Date of the award. 16.08.2017 MACT No. 223/17 Balbir Singh Vs. Vijender (Pg 9 of 10) 19 Whether the award was passed with the No consent of the parties?
20 Whether the claimant(s) examined at the Petitioner was examined.
time of passing of the award to ascertain Financial condition was asked his/their financial condition? from the petitioner. 21 Whether the photographs, specimen signatures, proof of residence and Photographs, proof of resident particulars of bank account of the etc were already on record. injured/legal heirs of the deceased taken at the time of passing of the award?
22 Mode of disbursement of the award Entire award amount is amount to the claimant(s). directed to be released immediately after deposition of the same by respondents.
23 Next Date for compliance of the award. 19.09.2017.
Announced in open Court Dated: 16.08.2017 (Madhu Jain) POMACT02/(South East District) Saket, New Delhi/16.08.2017 MACT No. 223/17 Balbir Singh Vs. Vijender (Pg 10 of 10)