Delhi District Court
Sakeel vs . Icici Lombard & Ors. on 27 January, 2014
Sakeel Vs. ICICI Lombard & Ors.
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IN THE COURT OF SH. SANJIV JAIN : PRESIDING OFFICER : MACT
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No. 179/13
FIR No. 99/13 PS : Sangam Vihar.
Shakil
S/o Sh. Mohd. Kayum Khan
R/o D1/115, Sangam Vihar
New Delhi.
...... Petitioners/Injured
Versus
1. Mohd. Rahishul
S/o Sh. Mohd. Hanif
R/o H.No. 197/16, Tuglakabad Extension
New Delhi. ..............Driver
2. Geetanjali
W/o Sh. Manoj Kumar
R/o 08/923A, Gali No.8
Govindpuri, Kalkaji
New Delhi. .........Owner
3. ICICI Lombard General Insurance Co. Ltd
Lajpat Nagar, New Delhi.
........Insurer
...... Respondents
FIR No. : 99/13
PS Sangam Vihar 1/11
Sakeel Vs. ICICI Lombard & Ors.
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Date of Institution : 10.07.2013
Date of reserving of judgment/order : 27.01.2014
Date of pronouncement : 27.01.2014
J U D G M E N T :
1. Detailed Accident Report was filed by SHO of Police Station Sangam Vihar of an accident which took place on 09.03.2013 at about 2.30 PM at M.B. Road in front of BSF Gate, Sangam Vihar, New Delhi. The accident resulted into injuries on the person of Shakil.
2. Briefly, the facts are that on abovesaid date and time, Shakil was returning home on his motorcycle bearing no. DL3SBG2040. When he reached opposite BSF Gate, M.B Road, Sangam Vihar, a Gramin Sewa bearing no. DL2W5879 being driven by respondent no. 1 in a rash and negligent manner came at a fast speed from Badarpur side and hit his motorcycle. He fell down and sustained injuries. He was taken to AIIMS Trauma Center where his MLC was prepared. Case was registered vide FIR No. 99/13 at the police station Sangam Vihar. Vehicle was seized and got mechanically inspected. Respondent no.1 was arrested. After the investigation, report U/s 173 Cr.P.C. was filed. Shakil was matriculate. He had been working in Cafe Coffee Day on a salary of Rs. 10,000/ per month. Respondent no.2 FIR No. : 99/13 PS Sangam Vihar 2/11 Sakeel Vs. ICICI Lombard & Ors.
3was the owner of the vehicle and it was insured with respondent no.3.
3. On getting the notice of the DAR, respondents appeared. Respondent no. 1 and 2 did not file any reply and their defence was struck off vide order dated 05.09.2013.
4. Respondent no. 3 in its reply denying its liability to pay compensation to the claimant alleged that he sustained injuries because of his own negligence. It however admitted that vehicle bearing no. DL2W5879 was insured with it in the name of respondent no. 2 vide Commercial Vehicle Policy bearing no. 3004/75046396/00/B01 for the period from 25.10.12 to 24.10.13.
5. Vide order dated 06.09.2013, following issues were framed:
1. To what amount of compensation, is the claimant entitled, due to grievous injuries suffered owning to negligent driving of vehicle bearing no. DL2W5879 by its driver Mohd. Rahishul, owned by Geetanjali and insured with ICICI Lombard General Insurance Company Ltd. ......OPP
2. Relief.
6. To substantiate his claim, claimant Shakil examined himself as PW1. FIR No. : 99/13 PS Sangam Vihar 3/11 Sakeel Vs. ICICI Lombard & Ors.
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7. Respondents did not examine any witness.
8. I have heard the arguments advanced by Sh. V. Khan, Ld. counsel for the claimant, Sh. Mohd. Raghib for insurance company and perused the record. My findings on the issues are as follows: ISSUE NO. 1
9. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the claimant to establish rash and negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs New India Assurance Co. Ltd. 2001 ACJ 421 SC.
10. PW1 has stated that on 09.03.2013 at about 2.00 PM, he was coming home on his motorcycle bearing no. DL3SBG2040. When he reached opposite FIR No. : 99/13 PS Sangam Vihar 4/11 Sakeel Vs. ICICI Lombard & Ors.
5BSF Gate, M. B. Road, Sangam Vihar, a Gramin Sewa bearing no. DL2W5879 being driven by respondent no. 1 in a rash and negligent manner came from Badarpur side and hit his motorcycle. He fell down and sustained injuries. He was taken to AIIMS Trauma Center where his MLC Ex. PW1/1 was prepared. He relied upon copy of DAR which contains charge sheet, FIR, site plan and other documents. Perusal of Charge sheet and FIR reveals that case was registered on the statement of claimant wherein he had stated on lines of his testimony. He had stated that the accident had taken place due to rash and negligent driving of Gramin Sewa bearing no. DL2W5879. On being crossexamined, he stated that offending vehicle had hit him from left front side while taking U turn. He denied that the accident had taken place due to his negligence. Hon'ble High Court of Delhi in a case titled as 2009 ACJ 287 National Insurance Company Limited Vs. Pushpa Rana has held that where a petitioner files the certified copy of the criminal record showing completion of investigation, issuance of chargesheet, certified copy of the FIR, all these documents are sufficient proof to come to the conclusion that the driver was negligent.
11. On considering the testimony of PW1 and the documents placed with the DAR, I am of the view that the claimant has established that he sustained FIR No. : 99/13 PS Sangam Vihar 5/11 Sakeel Vs. ICICI Lombard & Ors.
6injuries in the accident due to rash and negligent driving of Gramin Sewa bearing no. DL2W5879 by the respondent no. 1. Documents placed on record show that the vehicle was owned by respondent no.2 and it was insured with respondent no. 3.
12. The claimant has claimed compensation in respect of the injuries sustained by him. It is true that when a person is injured in a road accident, he is entitled to the compensation for the pecuniary and nonpecuniary damages.
13. It has been held by Hon'ble Apex Court in R.D. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters ie. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of FIR No. : 99/13 PS Sangam Vihar 6/11 Sakeel Vs. ICICI Lombard & Ors.
7expectation of life, ie. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life." COMPENSATION FOR MEDICAL EXPENSES
14. PW1 Shakil after the accident was taken to AIIMS Trauma Center where his MLC Ex. PW1/1 was prepared. He was then taken to Safdarjung Hospital. He filed documents Ex. PW1/3 ( colly). He sustained open fracture both bone leg with medial malleolus left side. He filed medical bills Ex. PW1/7 ( colly) of Rs. 4050/. I therefore award Rs. 4,100/ to the claimant towards medical expenses.
COMPENSATION FOR PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
15. The medical record of Shakil shows that he took his treatment from AIIMS Hospital, Safdarjung Hospital and Batra Hospital. He sustained grievous injuries. His treatment continued for three months. He remained under tremendous pain and agony. Looking into his injuries and the facts and circumstances of the case, I award Rs.30,000/ to claimant towards pain & sufferings and enjoyment of life.
COMPENSATION FOR SPECIAL DIET, ATTENDANT CHARGES AND CONVEYANCE CHARGES :
16. PW1 Shakil has stated that, he was diagnosed to have open fracture both FIR No. : 99/13 PS Sangam Vihar 7/11 Sakeel Vs. ICICI Lombard & Ors.
8bone leg with medial malleolus left side. His treatment continued for about three months. He filed OPD cards. He had to pay visits to hospital on number of occasions. In the instant case, the injuries were such that he might have taken the services of attendant. He could not do his routine functions freely. It is seen that a person who gets injured in a road accident is advised to take protein in his diet to recover from the injuries. Looking into his injuries and the treatment he underwent, I award Rs. 25,000/ to claimant towards special diet, conveyance and attendant charges. COMPENSATION FOR LOSS OF INCOME :
17. PW1 Shakil has stated that he is matriculate. He had been working in Cafe Coffee Day on a salary of Rs. 10,000/ per month. However he did not file any document with regard to his employment and income. He filed copy of his educational certificate Mark X. The accident took place on 09.03.2013. His treatment continued for three months. Taking a period of three months and minimum wages for matriculate as Rs. 8814/, the loss of income is calculated as 8814x3=26,442 which is rounded off to Rs. 26,500/. I therefore award Rs. 26,500/ to claimant on account of loss of income.
18. Thus the total compensation awarded in favour of claimant is assessed as under :
Medical Expenses : Rs. 4,100/ FIR No. : 99/13 PS Sangam Vihar 8/11 Sakeel Vs. ICICI Lombard & Ors. 9 Pain & Sufferings & Enjoyment of life : Rs. 30,000/ Special Diet, Attendant & Conveyance Charges : Rs. 25,000/ Loss of Income : Rs. 26,500/
Total : Rs.85,600/ L I A B I L I T Y
19. As the offending vehicle was being driven by respondent No.1, therefore primary liability to compensate the claimant is that of respondent No.1. As the offending vehicle was owned by respondent No.2, therefore, she becomes vicariously liable to compensate the claimant. It is an admitted position on record that the offending vehicle was insured with respondent No.3, therefore, it becomes contractually liable to compensate the claimant for the above mentioned amount to the extent of liability of the insured.
20. Issue no. 2 is accordingly decided in favour of claimant and against the respondent no. 3.
R E L I E F
21. In view of my findings I award a sum of Rs. 85,600/ as compensation with FIR No. : 99/13 PS Sangam Vihar 9/11 Sakeel Vs. ICICI Lombard & Ors.
10interest @ 9 % per annum from the date of filing the DAR/petition till the date of its realization in favour of the claimant and against the respondent No.3 on account of its liability.
22. Respondent no. 3 is directed to deposit the awarded amount in favour of the petitioner directly to the State Bank of India, Saket Courts Complex Branch within 30 days from today failing which respondent no. 3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
23. The Respondent no. 3 is directed to furnish a copy of this award alongwith the cheques of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant/ petitioner in whose favour the award has been passed.
24. The Respondent no. 3 shall intimate to the claimant / petitioner about its having deposited the cheques in favor of the 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.
25. Copy of this award / judgment be given to the parties for necessary compliance.
FIR No. : 99/13 PS Sangam Vihar 10/11 Sakeel Vs. ICICI Lombard & Ors.
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26. To come up for compliance by the insurance company on 03.03.2014.
Announced in the open court
on 27th January 2014 (SANJIV JAIN )
Presiding Officer : MACT
South Distt. : Saket Courts
New Delhi : 27.01.2014
FIR No. : 99/13
PS Sangam Vihar 11/11