Delhi District Court
Bimla vs . Shyam & Ors. on 19 November, 2018
Bimla vs. Shyam & Ors.
IN THE COURT OF SH. SAMEER BAJPAI : PRESIDING OFFICER : MACT
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Petition No. : 76096/16
Bimla
W/o Late Ramcharan
R/o Jhuggi C4/579, Unna Nagar,
ITO, New Delhi
..... Petitioner
Versus
1. Shyam
S/o Sh. S N Gupta
R/o Gali no.5, Dheeraj Vihar,
Near Begampur, Delhi - 81. ........... (Driver)
2. Ashwani Garg
S/o Sh. R D Garg
R/o A12, DUJ Apartment,
Sector14 Ext.
Rohini, Delhi ........... (Owner)
3. United India Insurance Co. Ltd.
New Delhi ........... (Insurer)
..... Respondents
Date of Institution : 28.11.2016
Date of reserving of judgment/order : 19.11.2018
Date of pronouncement : 19.11.2018
Petition no. : 76096/16 1/15
Bimla vs. Shyam & Ors.
J U D G M E N T :
1. By this order I shall dispose of the Detailed Accident Report (DAR) filed by SHO, PS Safdarjung Enclave for the injuries sustained by Ms. Bimla in a road accident on 08.09.2016 at 7.50 p.m. at Green Park, near Adiva Hospital, New Delhi due to rash and negligent driving of vehicle bearing no. DL 3C AK 6821 by Shyam, owned by Ashwani Garg and insured with United India Insurance Co. Ltd.
2. The respondent no.1 has not filed any written statement. He was proceeded exparte vide order dated 09.01.2017.
3. In his written statement respondent no.2 owner has taken preliminary objection that there is no cause of action for filing the present DAR. He further stated that his vehicle bearing no. DL 3C AK 6821 was duly insured with respondent no.3 i.e. United India Insurance Co. Ltd. He has denied the averments made in the DAR.
4. Respondent no.3 in its written statement has stated that as per the DAR documents and the report dated 04.10.2016 received from MLO, Agra the driving license bearing no. 8592A/06 of respondent no.1 was in the name of Ms. Mansi Johri D/o Sh. B B Johri and not in the name the respondent no.1 Shyam S/o Sh. S N Gupta and as such there is contravention of M.V. Act and the policy issued to the insured as he was not having valid and effective driving license at the time of accident. It however, admitted that the alleged Petition no. : 76096/16 2/15 Bimla vs. Shyam & Ors.
vehicle bearing no. DL 3C AK 6821 was insured with it vide policy no. 2227003115P111627608 for the period from 31.01.16 to 30.01.17
5. From the pleadings of the parties following issues were framed vide order dated 09.01.2017 :
1. Whether the injured Smt. Bimla sustained injuries in a road accident on 08.09.2016 at 7.50 p.m. at Green Park near Adiva Hospital, New Delhi due to rash and negligent driving of vehicle bearing no. DL 3C AK 6821 being driven by respondent Shyam, owned by Ashwani Garg and insured with respondent United India Insurance Co. Ltd.
... OPP.
2. To what amount of compensation, the petitioner is entitled and from whom?
3. Relief.
6. Petitioner examined herself as PW1. She tendered in evidence her affidavit Ex.PW1/A. She relied upon the documents Ex.PW1/1 to Ex.PW1/6 (colly.).
7. Respondent no.3 examined Sh. Manish Bhatt its Administrative Officer as R3W1. He tendered in evidence his affidavit Ex.R3W1/X and relied upon the documents Ex.R3W1/A to Ex.R3W1/C (colly.).
It also examined Sh. Harish Kumar Khatri, Head Assistant, RTO, Agra as R3W2 (wrongly written as R3W1). He has brought the letter issued by RTO, Agra Ex.R3W2/A. He has also brought the license register maintained in the office of RTO, Agra Ex.R3W2/B. Petition no. : 76096/16 3/15 Bimla vs. Shyam & Ors.
8. I have heard arguments advanced by counsel for the parties and perused the record. My findings on the issues are as follows :
I S S U E N o. 1
9. Needless to say that for making someone entitled U/s 166 of the Motor Vehicle Act, negligence of the driver of the offending vehicle needs to be proved and to prove the same the Tribunal need not go into the technicalities 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. It is an admitted legal position that the negligence on part of the driver with respect to use of the vehicle needs to be established and the same is to be established on the principle of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III (2015) ACC 435 Delhi.
PW1 (petitioner) has stated that on 08.09.2016 she was going to Sukhmani Hospital, Safdarjung Enclave for her duty. At about 7.50 p.m. when she reached near Adiva Hospital, Green Park, all of a sudden a car bearing no. DL 3C AK 6821 was being reversed by respondent no.1 without giving horn and due to the said negligent act of the respondent no.1, she fell down and sustained injuries. She further stated that she was got admitted in Adiva Hospital by the driver and owner of the said vehicle, where her MLC bearing no. 755 was prepared. She further stated that the accident had occurred due to fault, carelessness and negligence of respondent no.1. She further stated that a case vide FIR no. 577/16 was registered at the police station Safdarjung Enclave against the respondent no.1.
Petition no. : 76096/16 4/15During crossexamination on behalf of insurance company she denied the suggestion that the accident had taken place due to her own fault.
During crossexamination on behalf of the owner, she denied that the accident had not occurred with the alleged offending vehicle. She further denied that she is falsely implicating the owner of the alleged offending vehicle in the present case. She further stated that she did not go to the spot for preparation of site plan. Further, the place of accident was near her hospital. She did not call the police.
In the present case the Investigating Officer alongwith the DAR has filed charge sheet, FIR, site plan etc. Case was registered on the statement of injured herself, wherein she stated the same facts as deposed by her as PW1. As per the site plan, the accident took place in a service road where generally people park their vehicles. If a person is reversing his vehicle he should be more cautious and vigilant, but the respondent no.1 had failed to do so and the accident had happened. Even the respondent no.1 has not appeared to put forth his defence. No other version of accident has come on record except the one as narrated by the PW1. Therefore, the version of accident as given by the petitioner has to be believed, so, the petitioner has successfully established on record that she sustained injuries due to rash and negligent driving of vehicle bearing no. DL 3C AK 6821 by the respondent no.1. Documents placed on record shows that the vehicle was owned by respondent no.2 and it was insured with respondent no.3.
This issue is decided in favour of petitioner and against the respondents.
Petition no. : 76096/16 5/15 I S S U E No. 210. The petitioner has claimed compensation in respect of the injuries sustained by him. In a road accident a person is entitled to compensation for the pecuniary and nonpecuniary damages.
11. Let me assess the compensation which the claimant is entitled for under different heads :
MEDICAL EXPENSES :
12. In the present case the petitioner has filed medical bills of Rs. 22,519/. I, therefore, award Rs. 22,519/ to the petitioner towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
13. As per the discharge summary of Safdarjung Hospital the injured was diagnosed with Closed Traumatic Fracture Left Distal Femur. She remained in Safdarjung Hospital from 10.09.16 to 17.09.16. She was operated. ORIF with 8 hole extraarticular distal femeral locking plate with artificial bone granules and CSE was done. Looking into the injuries and treatment of the petitioner, I award Rs. 35,000/ to the petitioner towards pain and sufferings and enjoyment of life.
SPECIAL DIET, CONVEYANCE & ATTENDANT CHARGES :
14. Petitioner has stated that she has spent Rs. 55,000/ on special diet, Petition no. : 76096/16 6/15 Bimla vs. Shyam & Ors.
conveyance and attendant charges. The petitioner has not filed on record any document in relation to special diet, conveyance and attendant charges. However, the injuries on the person of the petitioner were such that she must have been advised special diet for her early recovery. She visited the hospital as an OPD patient. The injuries were such that she must have taken help of an attendant for her daily routines. I therefore, award Rs. 18,000/ to the petitioner towards special diet, conveyance and attendant charges.
LOSS OF INCOME :
15. The petitioner has stated that at the time of accident she was working as a Safai Karamchari/Attendant at Sukhmani Hospital. She used to earn Rs.10,000/ p.m. She further stated that she remained absent from her duty continuously from 08.09.2016 on account of which approx. Rs.50,000/ have been lost as her salary till date. In the present case the petitioner has not filed on record any documentary proof regarding her salary/income. During crossexamination she has stated that she is illiterate. She further stated that she does not have any formal appointment letter or any other document to show her employment in Sukhmani Hospital. She further stated that the hospital did not issue any formal salary slip but her account book shows the credit of the salary. She has placed on record her bank passbook Ex.PW1/X1. She admitted that in her affidavit in evidence she has stated that her salary is Rs. 10,000/ p.m. but her passbook does not reflect the same. She voluntarily stated that she receive an amount of Rs. 8,000Rs. 9,000/ p.m. (approx.)after some deductions. She further stated that the Petition no. : 76096/16 7/15 Bimla vs. Shyam & Ors.
hospital has not issued any letter or document to show that she did not attend the hospital. The hospital has also not issued any letter of termination of her services to her.
Perusal of bank passbook Ex.PW1/X1 shows that the petitioner was receiving a regular amount of approx. Rs. 80009000/ p.m. from Sukhmani Hospital through NEFT which must be after some deductions, therefore, the income / salary of the petitioner can safely be taken as Rs. 10,000/ p.m. Therefore, the contention of the petitioner that she was working in Sukhmani Hospital at the time of accident has to be believed. The injuries on the person of the petitioner were such that she must have remained out of the job at least for six months. Therefore, I award Rs. 60,000/ to the petitioner towards loss of income.
16. Thus, the total compensation awarded in favour of the petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 22,519/
PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 35,000/
SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 18,000/
LOSS OF INCOME : Rs. 60,000/
===========
TOTAL : Rs. 1,35,519/
===========
Rounded off to : Rs. 1,35,600/
L I A B I L I T Y
17. As the offending vehicle was being driven by respondent no. 1, primary liability to compensate the petitioner remains with respondent no. 1. Since Petition no. : 76096/16 8/15 Bimla vs. Shyam & Ors.
the vehicle was owned by respondent no.2, he is vicariously liable to compensate the petitioner. It is an admitted position on record that the vehicle was insured with respondent no.3, therefore, respondent no.3 is contractually liable to compensate the petitioner.
18. Ld. Counsel for the insurance company, however, in his quest to have the insurance company exonerated of its contractual obligation contended that the driving license used by the respondent no.1 at the time of accident was not in his name and the same was in the name of Ms. Mansi Johri. He relied upon the testimony of R3W1 and R3W2.
19. R3W1 has brought the insurance policy bearing no.
2227003115P111627608 Ex.R3W1/A. He further stated that their counsel has sent notice U/o 12 Rule 8 CPC to the driver and owner to produce the driving license and insurance policy. The notice and postal receipts are Ex.R3W1/B (Colly.). He further stated that the policy has got verified the driving license no. 8592/A/06 from RTO, Agra and it was found to have issued in the name of Mansi Johri D/o Sh. B B Johri. He has placed on record the report Ex.R3W1/C (Colly.).
20. R3W2 Sh. Harish Kumar Khatri, Head Assistant, RTO, Agra has brought the license register maintained in the office of RTO, Agra and as per the same, the driving license no. 8592/A/2006 dated 18.07.2006 at the entry page n.25 shows that the license was issued in the name of Meenakshi Johri D/o Sh. B B Johri R/o A46, Pratap Nagar, Agra for Motorcycle and LMV Petition no. : 76096/16 9/15 Bimla vs. Shyam & Ors.
(Private) for the period from 18.07.2006 to 17.07.2026. He has proved the letter issued by RTO, Agra Ex.R3W2/A and Register (page no.25) Ex.R3W2/B.
21. I have considered the submissions and perused the record.
22. On going through the testimony of R3W1 and R3W2 and the Register Ex.R3W2/B it is clear that the driving license bearing no. 8592/A/2006 has been issued in the name of Ms. Meenakshi Johri D/o Sh. B B Johri R/o A46, Pratap Nagar, Agra. Even the Investigating Officer in the charge sheet has added the section 420 IPC and 3/181 M.V. Act. The testimony of R3W1 and R3W2 remained unrebutted. As per the terms of the policy, any person must hold an effective driving license and is not disqualified from holding or obtaining such a license. This very act of not having a driving license on the part of respondent no. 1 amounts to breach of the insurance policy. Therefore, the liability to compensate the petitioner is of respondent no.1 and 2. Balancing the "twin interest" of the Insurance Company at one hand and that of the third party i.e. petitioner on the other hand, for whose benefit the present legislation was brought on the statute book, it is directed that the insurance company shall pay the compensation awarded to the petitioner within the time given in this award and shall have the right to recover the same from respondents no. 1 and 2.
23. Issue no. 2 is decided accordingly.
Petition no. : 76096/16 10/15R E L I E F
24. In view of my findings, I award Rs.1,35,600/ (Rs. One Lakh Thirty Five Thousand Six Hundred only) to the petitioner as compensation alongwith interest @9% per annum from the date of filing the DAR till its realisation.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
25. Respondents no.3 is directed to deposit the awarded amount in favour of the petitioner with State Bank of India, Saket Courts Complex Branch, against account of petitioner within a period of 30 days from today, failing which it shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
26. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :
1. No cheque book be issued to petitioner/claimant without the permission of this Court.
2. On the request of petitioner/claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
3. Petitioner/claimant shall furnish all the relevant documents for opening of the Saving Bank Account to the Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
4. The bank is also directed to get the nomination form filled by the claimant at the time of preparation of FDRs.
5. The bank is also directed to keep the money received from the respondents in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
Petition no. : 76096/16 11/156. The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioner from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 4112541127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/NEFT directly in the personal bank account of the petitioner of the bank nearest to his place of residence, the details of which have been given by the petitioner to the Tribunal and same details shall be given by him to the Manager SBI, District Court Saket branch.
DIRECTIONS FOR THE RESPONDENT NO. 327. The Respondent no.3 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
28. The Respondent no.3 is directed to furnish a copy of this award 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.
29. The Respondent no.3 shall intimate the claimant/petitioner about its having deposited the award amount in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
30. Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch Petition no. : 76096/16 12/15 Bimla vs. Shyam & Ors.
for necessary compliance after her having received the notice of the deposit of awarded amount by the respondents
31. Copy of this Award / Judgment be given to the parties for compliance.
32. The case is now fixed for compliance by the respondent no.3 for 12.11.2018.
33. FormIV of the Modified Claims Tribunal Agreed Procedure to be mentioned in the Award is as under :
1 Date of the accident 08.09.2016 2 Date of intimation of the accident by the 28.11.2016 Investigating Officer to the Claims Tribunal 3 Date of intimation of the accident by the Not available Investigating Officer to the insurance company 4 Date of filing of Report u/s 173 Cr.P.C. Not available before the Metropolitan Magistrate 5 Date of filing the Detailed Accident Report 28.11.2016 (DAR) by the Investigating Officer before Claims Tribunal 6 Date of service of DAR on the insurance 28.11.2016 company 7 Date of service of DAR on the claimant 28.11.2016 8 Whether DAR was complete in all Yes respect?
9 If not, state deficiencies in the DAR N.A. 10 Whether the police has verified the Yes documents filed with DAR 11 Whether there was any delay or deficiency No Petition no. : 76096/16 13/15 Bimla vs. Shyam & Ors.
on the part of the Investigating Officer? If so, whether any action/direction warranted?
12 Date of appointment of the Designated Not known Officer by the insurance company.
13 Name, address and contact number of the Not known designated officer of the insurance company.
14 Whether the designated officer of the Yes insurance company submitted his report within 30 days of the DAR?
15 Whether the insurance company admitted No 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 deficiency No 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 the N.A. offer of the insurance company.
18 Date of the award 19.11.2018 19 Whether the award was passed with the No consent of the parties?
20 Whether the claimant(s) examined at the Petitioner was time of passing of the award to ascertain examined. Financial his/their financial condition? condition was asked from the petitioner.
21 Whether the photographs, specimen Yes signatures, proof of residence and particulars of bank account of the injured/legal heirs of the deceased taken at the time of passing of the award?
Petition no. : 76096/16 14/1522 Mode of disbursement of the award Entire amount is amount to the claimant (s). released.
23 Next date for compliance of the award. 19.12.2018
Digitally signed
by SAMEER
SAMEER BAJPAI
BAJPAI Date:
2018.11.20
Announced in the Open Court 16:30:09 +0530
on 19th day of November, 2018 (SAMEER BAJPAI)
Presiding Officer : MACT (S)
Saket Courts : New Delhi
Petition no. : 76096/16 15/15