Delhi District Court
Master Vikas @ Raja vs Mahesh Kumar (Driver) on 17 November, 2014
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTHEAST DISTRICT : KKD COURTS : DELHI
MACT No. 279/11
Unique Case Identification No: 02402C0204492011
MASTER VIKAS @ RAJA
Through his Natural Guardian/Next Friend/Father
Sh. Bhola Shankar @ Shankar
S/o Sh. Govind Ram
R/o H. No. D94, Gali no. 1, DBlock,
West Jyoti Nagar, Delhi 110 094
....... Petitioner
Versus
1. MAHESH KUMAR (Driver)
S/o Sh. Ram Snehi
2. RAM SNEHI
Both R/o D65, West Jyoti Nagar,
Delhi 94.
3. THE ORIENTAL INSURANCE CO. LTD.
2, Central Road, Jangpura
New Delhi. (Insurer)
......... Respondents
Through :
Mr. Nand Kishore Verma, Advocate for petitioner Mr. Upender Kumar, Advocate for respondent.
i) Date of Institution of Claim Petition : 14.07.2011
MACT NO. 279/11 Kiran Bansal
P.O. MACT (NorthEast), Delhi
Page 1/11
ii) Date when fixed for Orders : 12.11.2014
iii) Date of Decision : 17.11.2014
APPLICATION U/S 166 & 140 M.V. ACT 1988
FOR GRANT OF COMPENSATION
A W A R D
1. Petitioner being the guardian of the minor injured, has filed the present claim petition under Sec. 166 & 140 of MV Act stating that on 26.05.2011 at 4:45 pm, injured namely Master Vikas @ Raja alongwith his friend was playing near Ramlilla Ground, Jyoti Nagar, Delhi then one Indica Car bearing no. DL 3CW 0819 which was driven by the respondent no. 1 in a rash and negligent manner came and hit the left leg of the injured master Vikas @ Raja . As a result of which petitioner fell down on the road and sustained grievous injuries and his neighbour who was standing there alongwith his friend, took the injured at GTB Hospitaland MLC was prepared. Injured, who is a student, sustained grievous injuries. PS Jyoti Nagar registered an FIR No. 219/11 under Sections 279/337 IPC in this respect.
2. Summons of the petition were issued to the respondents. WS was not filed on behalf of respondent no. 1 . Vide order dated 01.12.2011 respondent no. 1 was proceeded exparte.
3. WS was also filed on behalf of respondent no. 2 stating that vehicle bearing MACT NO. 279/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 2/11 no. DL 03C 0819 was insured with the respondent no. 2 vide policy no.
212703/31/2011/4142 valid from 08.02.2011 to 07.02.2012.
4. After completion of the pleadings, following issues were framed :
1. Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. DL 3CW 0819 by respondent no. 1 on 26.05.2011 at about 4:45 pm, at Ramlila Ground Park Gate, West Jyoti Nagar, Delhi within the jurisdiction of PS Jyoti Nagar?OPP
2. Whether petitioner is entitled to compensation? If so, to what amount and from whom?
3. Relief
5. Father of petitioner has examined himself as PW1 and has tendered his affidavit Ex. PW 1/A and relied upon the documents i.e certified copy of the AIR prceedings Ex. PW 1/1, Medical Bills Ex. PW 1/ 2 and disability certificate of his son, Ex. PW 1/3. Sh. Gagandeep is examined as PW 2 and has tendered his affidavit Ex. PW 2/A. Respondent no. 2 has examined Sh. K. K. Sharma, A/o the Oriental Insurance Company as R3W1.
6. I have heard ld. counsel for petitioner and ld. Counsel for respondent no.3 and gone through the entire evidence on record carefully. My issue wise findings are as below :
MACT NO. 279/11 Kiran Bansal
P.O. MACT (NorthEast), Delhi
Page 3/11
ISSUE NO. 1
7.
Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. DL 3CW 0819 by respondent no. 1 on 26.05.2011 at about 4:45 pm, at Ramlila Ground Park Gate, West Jyoti Nagar, Delhi within the jurisdiction of PS Jyoti Nagar?OPP
8. PW1 i.e. father of injured has filed his affidavit in support of examination in chief reiterating the facts mentioned in the petition. FIR No. 219/11 u/sec 279/337 IPC was also registered at PS Jyoti Nagar in this respect. It is further stated that injured was a student.
9. During cross examination he deposed that accident took place on 26.05.2011at about between 4.305.00 pm and he was at home when accident took place. It is further deposed that he was not present where the accident took place and Mr. Gagan Deep informed him about the happening of accident after five minutes. It is further deposed that he is not an eye witness and the doctors of GTB Hospital had not given in writing to him for transfer/shifting of his son for treatment to St. Stephen Hospital for further treatment. It is further deposed that he does not have any other medical bills except the ones he had already filed on record alongwith his affidavit of evidence before this Hon'ble Court. It is further he has not filed any document showing that the doctors have suggested him to arrange Rs. 80,000/ for conducting the surgery of his son as stated by him in para no. 8 of my affidavit of evidence and he has not filed any document showing that his son is studying in any school presently or at the time of accident.
MACT NO. 279/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 4/11
10. Sh. Gagandeep, eye witness is examined as PW 2. During cross examination he deposed that the accident had occurred on one way road, inside a gali which was adjacent to Ramleela park and his friend had stopped one TSR which was passing on the road at that time. It is further deposed that his clothes were not stained with blood while they had removed the child in an injured condition in the hospital and he knew the respondent no. 1 since childhood. It is further deposed that his house is at a distance of 100110 meters from Ramleela Park and they were playing cricket inside the Ramleela Park, at the time of the accident . It is further deposed that he was waiting outside the park as he was in batting team.
11. Nothing has come forward in the crossexamination of PW2, eye witness to show that the driver of offending vehicle i.e respondent no. 1 was not at fault and accident did not occur due to his rash and negligent driving and he was not rash and negligent or that the accident has not taken place due to his negligence or with his vehicle.
12.In a judgment reported as National Insurance Company Ltd. Vs. Pushpa Rana and other, 2009 ACJ 287 the Hon'ble High Court of Delhi has held that certified copies of criminal court, such as FIR, recovery memo and mechanical inspection report of vehicle are sufficient proof to reach the conclusion that driver was negligent. Proceedings under M. V. Act are not akin to proceedings in a civil suit and hence, strict rules of evidence are not MACT NO. 279/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 5/11 required to be followed in this regard.
13.Therefore , from the statements of the PW 2 and in view of the record of the criminal case regarding the accident, it is proved that injured Master Vikas @ Raju sustained injuries in the accident which occurred on 26.05.2011 due to rash and negligent driving of offending vehicle bearing no. DL 3CW 0819 driven by its driver i.e Respondent no. 1. This issue is decided accordingly. 14. Issue No. 2
Whether petitioner is entitled to compensation? If so, to what amount and from whom?
15. In the affidavit Ex. PW1/A, petitioner has further deposed that injured is 13 years of age and suffered grievous injuries. The medical record filed by the petitioner vide Ex.PW1/2 shows that petitioner sustained grievous injuries. Petitioner was examined by the medical board constituted by MS GTB Hospital on the directions of this court. The medical board after examining the petitioner has issued a permanent disability certificate which is Ex.PW1/3 according to which the petitioner suffers 29% permanent locomotor impairment in relation to his left lower limb.
16. It is stated by the PW1 that huge amount incurred on the treatment of injured. It is also stated that petitioner suffered loss of education and also suffered pain & discomfort.
MACT NO. 279/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 6/11
17. It cannot be ascertained in exact terms as to what extent the disability in left lower limb has effected the whole body of the minor petitioner. Considering the age and nature of disability, I am of the view that 15% disability can be assumed in relation to the whole body. It appears the parents of the petitioner have incurred medical expenses in the affidavit of PW 1. It is stated in the affidavit of PW 1 he had to take loan of approximately Rs. 2.50 lac on interest basis .
18. The documents relating to the treatment and the bills of the medicines and hospitals have been filed on record. The bills were carefully scrutinized and examined and a summary of the bills was got prepared through civil Nazir posted in the court and the same is annexure J (marked today by the court and be read as part of the judgment). A careful perusal of the receipts on page no. 104 to 106 indicate that these receipts do not relate to the injured therefore, the amount of the claim of these receipts is denied. Also the receipt of the advance payment for an amount of Rs. 20,000/, Rs. 5,000/ , Rs. 10,000/ and Rs. 8810/ have also been claimed in the final discharge bill. The receipts of the medicines from page no. 112 to 141 were in fact the details of the medicines purchased vide the receipts placed on page no. 45,17,78, 83 etc. as detailed in annexure J. It seems that the hospital issued duplicate receipts of the medicines purchased, one giving the amount of the medicines and other giving the details of the medicines purchased. The counsel for the injured has very cleverly separated the two receipts and have claimed the amount of the medicines purchased twice. The counsel for MACT NO. 279/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 7/11 petitioner was expected to fairly assist the present court but he is rather trying to mislead the court for claiming the amount spent on the medicines and treatment etc. twice. Needless to say that the petitioner should have refrained from taking advantage of a beneficial legislation. As per annexure J to the judgment the petitioner is entitled to Rs. 72,567.17 as expenses on treatment.
19. In "Master Malikarjun V. Divisional Manager, the National Insurance Co. Ltd., Civil No. 1676/2012", Hon'ble Apex Court held as follows :
"Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10 % and upto 30% to the whole body, Rs. 3 lakhs; upto 60%, Rs. 4 lakhs; upto 90%, Rs. 5 lakhs and above 90%, it should be Rs. 6 lakhs. For permanent disability upto 10%, it should be Rs. 1 lakh, unless there are exceptional circumstances to take different yardstick."
20.In the present case also petitioner is a young boy of 13 years at the time of accident, is entitled to compensation as per the above guidelines passed by the Hon'ble Supreme Court. Accordingly, petitioner is held entitled to a compensation of Rs. 3,00,000/ in lumpsum on the ground of permanent MACT NO. 279/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 8/11 disability. Petitioner is further entitled to the medical bills i.e. for Rs. 72,567.17/ In total petitioner is entitled to a compensation of Rs. 3,72,567.17/. = Rs. 3,72,567/ (rounded off) Liability
21. Sh. K. K. Sharma is examined as R3W1 he has brought the certified true copy of the insurance policy bearing no. 212703/31/2011/4142 for the period 08.02.11 to 07.02.12 issued in the name of Sachin Jain for the vehicle no. DL 03CW0819 and certified copy of the police is EX.R3W1/1 . During cross examination he deposed that he has also brought the notices under order 12 rule 8 CPC given by our counsel to the owner Ram Snehi and driver Mahesh Kumar of the vehicle bearing no. DL03CW0819 for providing the original D.L. of driver Mahesh Kumar and original insurance policy of the said vehicle. It is further deposed that these notices were sent to the owner/driver through registered post and no reply was received by the company either from the driver or from the owner in this regard. It is further deposed that the notices are EX.R3W1/2 & EX.R3W1/3 and the postal receipts are EX.R3W1/4 and EX.R3W1/5. The certified copy of the charge sheet filed by the IO in case FIR No. 219/11 u/s 279/338 IPC r/w Section 3/5/181 of M.V. Act registered at P.S. Jyoti Nagar is EX.R3W1/6. It is further deposed that insurance company has liability as the driver was not having any D.L. as the same is violence of the terms and conditions of the insurance policy. The MACT NO. 279/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 9/11 chargesheet shows that driver was also chargesheeted for driving without a valid license on the date of accident.
No rebuttal evidence has been led on behalf of respondent no. 1 and hence, it is deemed that he did not had a valid license to drive the offending vehicle. Ld. counsel for respondent no. 3 has relied upon the judgment United India Insurance Co. Ltd. Vs. Sujata Arora & Ors. 2013T.A.C 29(S. C.), in which no liability was fastened upon the insurance company and on the basis of the above said judgment, has argued that as the driver in the present case also was not holding a valid DL, the insurance company should be exonerated completely and the liability, if any, is of the driver cum owner i.e respondents no. 1 . I have perused the above said judgment and on careful perusal of the judgment, it is revealed that the said judgment is not applicable to the facts of the present case. In the above said judgment, owner of the vehicle had already paid the amount to the claimants and therefore, the insurance company was completely exonerated, however in the present case, no payment has been made by the respondent no. 1 to the petitioner.
The Hon'ble Supreme Court, in a judgment reported as National Insurance Company Co. Ltd. Vs. Kusum Rari, 2006ACJ 1336 has observed that where the driver did not possess a valid license to drive a commercial vehicle, Insurance Company may recover the amount paid from the owner by initiating recovery proceedings before executing court. Therefore, in view of the judgment 2006ACJ1336(Supra) only recovery rights can be granted to the insurance company and the respondent no. 3, insurance MACT NO. 279/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 10/11 company is liable to pay the award amount to the claimant and thereafter, may recover the same from the respondents no. 1 & 2. In view of the findings on the issues above, a compensation of Rs. 3,72,567/ is granted to the petitioner alongwith interest at the rate of 9% per annum from the date of filing of the petition.
22.Relief
23.Award is passed directing Respondent no. 3 Oriental Insurance Company Ltd. to pay a sum of Rs. 3,72,567/ to the petitioner along with interest @ 7% per annum from date of filing of the petition (14.07.2011) till date of realization. Payment is to be made by depositing separate cross cheque in favour of petitioner in the tribunal within thirty days from today under written intimation to the petitioner. In case of default, further penal interest shall begin to accrue @ 12% p.a thereon, for each day default. Out of the abovesaid award amount, 50% shall be kept in FDR for the period minor petitioner shall attain majority and the remaining 50% shall be released to the father of injured .
Attested copies of the award be furnished to the concerned parties for compliance. File be consigned to record room.
Pronounced in Open Court on (KIRAN BANSAL)
17.11.2014 P.O. MACT(NorthEast)
KKD Delhi
MACT NO. 279/11 Kiran Bansal
P.O. MACT (NorthEast), Delhi
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MACT NO. 279/11 Kiran Bansal
P.O. MACT (NorthEast), Delhi
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