Delhi District Court
Inderjeet Singh vs Sh. Manish Kumar on 29 August, 2019
IN THE COURT OF SHRI RAKESH KUMAR-III
PRESIDING OFFICER : MOTOR ACCIDENT CLAIMS
TRIBUNAL-02 (CENRAL): DELHI
MACT No. 960-17
Inderjeet Singh
S/o Bhagwan Sahay
R/o H.No. A-90, Harijan
Basti Kondly, Mayur Vihar Phase-3,
Delhi-110096. .........PETITIONER
Versus
1. Sh. Manish Kumar
S/o Sh. Dwarika Prasad
R/o Vill Pokhri, P.S.Srinagar,
Distt. Chamauli, Uttrakhand. (Driver)
2. Sh. Maneet Singh
S/o Sh. D.S.Sikka
R/o H.No. 398,Bhairav Enclave,
Pashcim Vihar, Delhi. (Regd. Owner)
3. Reliance General Insurance Company
105-106, Express Arcade H-10, First Floor,
Netaji Subhash Place, Pitampura, Delhi-110034. .................(Insurer)
.......RESPONDENTS
MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 1/14
1. This is a remand back case whereby the Hon'ble High Court of
Delhi vide its Judgment dated 24/08/2017 in MAC Appeal No. 536/09
directed the Tribunal to treat the present petition as one brought under
Section 163-A of the Motor Vehicle Act, 1988. The relevant portion of the
findings of the Hon'ble High Court of Delhi is as under:-
"5.In the aforementioned facts and
circumstances of the case, the prayer
deserves to be granted. The impugned
judgment is set aside. The claim
petition is treated as one brought
under Section 163A of the Motor Vehicle
Act, 1988. The tribunal shall hold
further inquiry by giving opportunity to
the appellant/claimant to adduce
additional evidence, if any, followed by
such opportunity to the contesting party
to adduce evidence in rebuttal, if any,
and, thereafter, render a fresh
decision".
2. Brief facts of the present case are that initially the present petition
u/s 166 & 140 MV Act was filed by the petitioner and same was dismissed by Ld.
Predecessor of this Court vide judgment dated 26/08/2009 and thereafter the
matter was remanded back in pursuance to the directions of the Hon'ble High
Court of Delhi and accordingly the present petition was entertained u/s 163A MV
Act.
The case of the petitioner is that he was returning home after
performing his duty at Labour Office and he was travelling on the motorcycle
which was being driven by his friend Yashwant Singh at low speed. It is stated
that about 06.45 P.M, when they reached at T Point, at Police Nalla Post, Bharat
Nagar, one Truck bearing registration Number HR-51GA-1329 came in a rash
and negligent manner and hit the motorcycle from the driver side. As a result of
this impact, the motorcycle fell down and the petitioner sustained grievous
injuries on his left hand. He was taken to Sunder Lal Jain Hospital, Ashok Vihar,
MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 2/14
where MLC bearing Number 5867 was prepared and he was given the medical
aid and he was finally discharged on 08/03/2007. It is stated that the petitioner
took further treatment at Swastik Medical Centre, Anand Vihar and Bimla Devi
Hospital, Mayur Vihar and plastic surgery was also done. It is stated that no FIR
was lodged in respect of the accident and the petitioner made a complaint which
was registered vide a complaint dated 04/04/2007 at PS Sarai Rohilla Vide DD
No. 21B dated 11/06/2007. By way of present petition, the petitioner has
claimed compensation on account of injuries sustained by him in the vehicular
accident. From the pleadings of parties, follwing issues were framed on
29/08/2019:-
1. Whether on 02/03/2007 at about 06.45 P.M near
T-Point, Bharat Nagar, in front of Police Post Nalla
(Main Severage Drain) Sh. Inderjeet Singh
received injuries due to road accident arising out
of use of Truck bearing No.-HR-51GA-1329?
OPP
2.Whether the petitioner is entitled for
compensation? If so, to what amount and from
whom? OPP
3. Relief
3. In order to prove his case, the petitioner examined himself as PW-
1, Yashwant Singh as PW-2 and Ms. Meenakshi Valecha as PW-3.
4. The Respondent No. 1 examined himself as RW1 and insurance
company examined its witness as R3W1 in its defence.
5. After remand back of the case, no witness was examined by either
of the parties.
6. I have heard Ld. Counsels for the parties and have gone the record
carefully.
MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 3/14
7. My Issue wise findings is as under:-
Findings on Issue No.1.
8. In claim petition filed by the injured for compensation U/s 163A of
MV Act, the petitioner is not required to plead or establish that the injuries in
respect of which claim has been filed, was due to any wrongful act or negligence
of the driver/owner of the vehicle or for any other reason. He needs to prove only
the involvment or use of the vehicle in the accident to claim compensation
against the owner and insurer, according to Second Schedule of the Motor
Vehicle Act.
9. Sh. Inderjeet Singh, in his evidence by way of affidavit Ex PW1/A
and Ex PW1/B narrated the entire sequence of the event which led to the
accident and injuries to him.
10. It is admitted by Ld. Counsel for the Respondent No.3 that the
Truck bearing registration Number HR-51GA-1329 was insured with Reliance
General Insurance Company Ltd but claimed that this accident has been caused
due to sole negligence of the driver of the motorcycle bearing registration
number DL-18N-6109.
11. On the other hand, Ld. Counsel for the petitioner stated that this
accident has been caused due to the negligence of the Truck driver and it is the
perogative of the petitioner to claim compensation either from the insurer of the
Truck or the insurer of the motorcycle.
MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 4/14
12. The argument of Insurance Company that compensation cannot be
claimed from the insurer of the Truck as the accident was not caused by it
deserves to be rejected. The expression "caused by" and "arising out of" was
considered by the Hon'ble Supreme Court in SHIVAJI DAYANU PATIL & ANR.
VS. VATSCHALA UTTAM MORE reported as (1991) 3 SC CASES 530. The
following conclusion is relevant for deciding the present case as in the aforecited
case supra, the expression "caused by" and the expression "arising out of" were
vividly explained and it was held that arising out of has a wider connotation. The
Hon'ble Supreme Court in the said case referred to Section 92-A of the Motor
Vehicles Act, 1939 and observed as under:-
"Section 92-A was in the nature of a beneficial legislation
enacted with a view to confer the benefit of expeditious
payment of a limited amount by way of compensation to
the victims of an accident arising out of the use of a motor
vehicle on the basis of no fault liability. In the matter of
interpretation of a beneficial legislation the approach of the
courts is to adopt a construction which advances the
beneficent purpose underlying the enactment in preference
to a construction which tends to defeat that purpose."
................
.............
(2) The word "use" has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a breakdown or mechanical defect or accident. In the circumstances, it cannot be said that the petrol tanker was not in the use at the time when it was lying on its side after the collision with the truck."
13. It was further held, "The words "arising out of" have been used in various statutes in different contexts and have been construed by courts widely as well as narrowly, keeping in view the context in which they have been used in a particular legislation. In the context of motor accidents the expressions "caused by" and "arising out of" are often used in statutes. Although both these expressions imply a causal relationship between the accident resulting in injury and the use of the motor vehicle but they differ in the degree of proximity of such relationship. As compared to the expression "caused MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 5/14 by", the expression "arising out of" has a wider connotation. The expression "caused by" was used in Sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In Section 92-A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This construction of the expression "arising out of the use of a motor vehicle" in Section 92-A enlarges the filed of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment."
14. In UNITED INDIA INSURANCE CO.LTD. VS. AMIR BASHA reported as 2004 (2) SCC 23 (DB), the Hon'ble Division Bench of Madras High Court considered various decisions and held as follows:-
"3. It is clear from the above decisions and in view of the object of the enactments, both under the Motor Vehicles Act, 1939 and 1988 the expression "caused by" and arising out of have a wider connotation. Though the accident should be connected with the use of motor vehicle, but the said connection need not be direct and immediate. The expression "arising out of use of motor vehicle" as mentioned in Section 92-A of the 1939 Act and Section 165 of 1988 Act enlarges the filed of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment. From the expression employed namely "accident arising out of the use of a motor vehicle" in the place of "accident caused by the use of motor vehicle", it is clear that the Legislature wanted to enlarge the scope of the word "use" and not to restrict it for denying compensation in deserving cases; accordingly we are of the view that the test should be whether the accident was reasonably proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then. We should not forget that these provisions are made in order to help the victims. We are of the view that restrictive interpretation should not be given for the word "use". We are also of the view that the expression "arising out of the use of motor vehicle" has to be given a wider meaning. We are also of the view that "use of motor vehicle" need not necessarily be so intimate and closely direct as to make it "a motor accident" in the sense in which that expression is used in common parlance. Accordingly, we hold that the death of Absar arose out of the use of motor vehicle, and the claimants/respondents 1 and 2 herein are entitled to compensation for the death of their son Absar."MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 6/14
15. In RITA DEVI VS. NEW INDIA ASSURANCE CO.LTD., 2000 ACJ 801 (SC), the Hon'ble Supreme Court interpreted the expression "arising out of the use of the motor vehicle" in the context of death or permanent disablement suffered due to the accident arising out of the use of motor vehicle and gave it even a wider interpretation even to include the situation where a murder can be treated as accident in a given case.
16. The view of the Hon'ble Supreme Court rendered in RITA DEVI (SUPRA) and SHIVAJI DAYANU PATIL (SUPRA) was discussed and followed by Hon'ble Mr.Justice J.R. Midha in a case titled as NATIONAL INSURANCE CO.LTD. VS. MUNESH DEVI reported as 2012 (2) TN MAC 125 (DELHI). This was a case where the deceased parked a tanker and climbed over the same to check the inside condition of the tanker, when he came in contact with an overhead electric wire and died on the spot. The Hon'ble Delhi High Court after discussing a catena of judgments including the ones cited above held that the accident in question arose out of the use of the motor vehicle and, therefore, the claimants were entitled to compensation u/s 163-A of the Motor Vehicles Act.
17. The other plea taken by Ld. Counsel for the insurance company is that no FIR has been registered, no mechanical inspection done and no site plan has been prepared in this case and therefore, the petitioner cannot claim any compensation. Lodging of FIR is not necessary in motor accident cases and while deciding the case, a Tribunal is to keep in mind the facts and circumstances of each case and the use of vehicle in the accident. In the present case, the injured has placed on record the copy of DD No. Ex PW1/1 showing that the matter was reported to the police regarding the accident and involvement of Truck. The petitioner has also placed on record the copy of MLC bearing No. 5867 Ex PX wherein it is mentioned that it is a case of road accident. One more plea taken by the insurance company that the petitioner was under the influence MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 7/14 of liquor at the time of accident. The petitioner was not driving the motorcycle at the time of accident and he was a merely a pillion rider. Moreso, quantity of consumption of liquor has not come on record and therefore, the plea of having alcohol by the petitioner at the time of accident is not acceptable.
18. In view of the law discussed in the aforesaid judgments, there is not an iota of doubt that the accident in question arose out of the use of Truck bearing registration No.HR-51GA-1329 which caused injuries to claimant.
19. Hence, this issue is decided in favour of the petitioner and against the respondents.
ISSUE NO.2 : COMPENSATION NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
20. As per Medical Record,the petitioner has suffered grievous injuries. The petitioner has filed the medical bills to the tune of Rs. 47,579/-. Therefore, I hereby grant a sum of Rs. 47,579/- towards medical bills..
COMPENSATION ON ACCOUNT OF DISABILITY:
21. As per copy of disability certificate Ex.PW1/9, the petitioner has got 43% permanent physical impairment in relation to his left upper limbs.
It is argued by Ld. Counsel for the petitioner that due to the physical disability suffered by the petitioner, there was loss of earning capacity and petitioner is entitled to compensation on account of disability.
In Raj Kumar Vs. Ajay Kumar & Ors, reported as 2011 ACJ I, the Hon'ble Supreme Court considered in great detail co-relation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. The relevant portion of the findings of the Hon'ble Supreme Court is held as MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 8/14 under:-
"11.What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings(by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation ( see for example, the decisions of this Court in Arvind Kumar Mishra v New India Assurance Co. Ltd. 2010(10) SCC 254 and Yadava Kumar v D. M. National Insurance Co. Ltd. 2010(10) SCC 341."
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 9/1414. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry . On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of ' loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emolument, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."
22. In order to assess the compensation on account of disability for those who should have suffer no loss of income, I am being guided by the judgment of Hon'ble High Court of Delhi in case titled as 'Oriental Insurance Co. Ltd Vs. A Mohan & Ors' in MAC. APP. 602/2011 decided on 14/03/2012.
MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 10/1423. In the present case, the petitioner is a Government Employee but nothing has come on record to show that due to the disability he suffered any loss of employment or income or his promotion avenues. Moreso, neither the aforementioned disability certificate has been proved by the concerned doctor nor any witness has been summoned from the office of the employer of the petitioner to prove that the aforementioned disability shall in any way effect on his earning capacity in future or adversely effect on his promotion in any manner. Accordingly, nothing is awarded to the petitioner under the head loss of income on account of the disability.
The total compensation is assessed as under:-
Treatment expenses: Rs. 47,579/-
Compensation on account of
disability: - Nil -
Total: Rs. 47,579/ -
24. RELIEF:
I award Rs. 47,579/- (Rupees Forty Seven Thousand Five Hundred Seventy Nine Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR I.e.29/08/2007 till realization in favour of the petitioner and against the respondents on account of their liability being joint and several.
25. Petitioner's statement was recorded on 15/05/2019 regarding his financial status in terms of Clause 27 of Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors., FAO No. 842/2003 decided by Hon'ble High Court of MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 11/14 Delhi on December 15, 2017, wherein he testified that he needs about Rs. 20,000/ per month for his household expenses.
Entire amount be transferred in the saving account of the petitioner upon providing necessary identification. APPORTIONMENT OF LIABILITY 26 I have taken the note of the submissions of the Ld. Counsel for insurer for recovery rights for the breach of the terms and condition of the policy.
27. During the course of arguments, Ld. Counsel for the insurance company vehemently argued that the offending vehicle was being used by the respondent no. 1 without having a valid and effective license and hence, the insurance company is not liable to pay the compensation to the petitioner. It was further submitted by Insurance Company that because of the reason that the owner of the offending vehicle has committed breach of the terms and conditions of the policy (as the driver of the offending vehicle was driving the vehicle for which he was not authorized to drive as same was not renewed at the time of accident), the insurance company be absolved of the liability.
28. In order to substantiate its claim, the insurance company examined its official Sh. L.C.Goel as R3W1. He has proved on record the attested copy of insurance policy which is exhibited as Ex R3W1/1, copy of notice u/o 12 Rule 8 CPC which is exhibited as Ex R3W1/2, Ex R3W1/3 to R3W1/5. Despite service of notice u/o 12 Rule 8 CPC, neither the reply of the same was sent nor copy of DL has been placed by the driver and owner on record. Despite giving opportunity, no witness was summoned from the RTO Office to prove the DL by the driver of the Truck. Accordingly, I am of the considered opinion that the Respondent No.1/Driver was not having a valid and MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 12/14 effective DL as on the date of accident which took place on 02/03/2007.
29. In order decide the defence raised by the Ld. Counsel for insurer, I am being guided by the judgment of Hon'ble High Court in MAC. App. 476/2011 in case title as ' National Insurance Company Ltd vs. Sarita Hasija & Ors' decided by Hon'ble Justice G. P. Mittal wherein it Hon'ble High Court have relied upon its own judgment in case titled as 'New India Assurance Company Ltd. v. Sanjay Kumar & Ors', ILR(2007) 11, Delhi 733 wherein it was held as under:-
"23. Where the assured chooses to run away from the battle i.e fails to defend the allegation of having breach the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at he trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."
30. In view of the aforesaid judgments of Hon'ble High Court of Delhi and in view of the fact that the insurer have duly proved the notice u/s 12 R 8 CPC, this court has come to the conclusion that the insurance company is entitled to recovery rights against Respondent nos. 1 and 2 but only after the disbursement of claim to the claimant in terms of the judgment of the Hon'ble Supreme Court in Swaran Singh's MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 13/14 case, 2004 ACJ 1 (SC) (Supra).
31. The Respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, the respondent No. 3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
32. A copy of this award be given to the insurance company as well as to the petitioner free of cost.
33. A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 28/09/2019.
Announced in the open court (RAKESH KUMAR-III)
on this 29th August day of 2019 PO: MACT-02 (CENTRAL)
DELHI/29.08.2019
MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 14/14
MACT NO. 960/17
29.08.2019
Present : Ld. Counsels for the parties.
During the course of final arguments, it is submitted by counsels for both the parties that present petition was treated u/s 163A MCT vide order dated 24/08/2017 of Hon'ble High Court of Delhi but issues have not been framed.
From the pleadings of the parties, following issues are framed:-
1.Whether on 02/03/2007 at about 06.45 P.M near T-Point, Bharat Nagar, in front of Police Post Nalla (Main Severage Drain) Sh. Inderjeet Singh received injuries due to road accident arising out of use of Truck bearing No. HR-51GA-1329? OPP
2.Whether the petitioner is entitled for Compensation? If so, to what amount and from whom?
3. Relief.
It is submitted by Ld. Counsel for the petitioner that he does not want to lead any PE. Accordingly, PE is closed.
It is submitted by Ld. Counsel for the insurance company that he also does not want to lead any RE. Accordingly, RE is closed on behalf of the insurance company.
None is appearing on behalf of the Respondents No. 1 & 2 despite repeated calls since morning. Accordingly, RE on behalf of the Respondents No. 1 & 2 is also closed.
Final arguments heard.
Put up for order at 04.00 P.M. ( Rakesh Kumar - III ) P.O. MACT (Central - 02) Delhi / 29.08.2019 MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 15/14 MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 16/14 MACT NO. 960/17 AT 4:00 PM Present: None.
Vide separate detailed judgment of even date today, I award Rs. 47,579/- (Rupees Forty Seven Thousand Five Hundred Seventy Nine Only) compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing of petition i.e. 29.08.2007 till realization in favour of the petitioner and against the respondents on account of their liability being joint and several A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 29.09.2019.
( Rakesh Kumar - III ) P.O. MACT (Central - 02) Delhi / 29.08.2019 MACT No. 960/17 Inderjeet Singh Vs Manish Kumar & Ors Page No. 17/14