Delhi District Court
Manoj Kumar vs Vivek Singh on 10 August, 2018
IN THE COURT OF SH. DEVENDER KUMAR, PRESIDING
OFFICER-MOTOR ACCIDENT CLAIMS TRIBUNAL, SHAHDARA
DISTRICT, KKD, DELHI
MAC No. 630/16
Manoj Kumar
S/o Sh. Late Khem Chand
R/o A-604/B, Gali No.7,
Meet Nagar, Delhi-94
....Petitioner
Versus
1. Vivek Singh
S/o Sh. Uday Bhan Singh
R/o H.N. 229/38A, Railway Colony,
Mandawali Fazalpur,
Delhi Driver
2. M/s. A.B. Grain Spirits Pvt. Ltd.
C/o 24A, Bharat Nagar,
New Friends Colony,
New Delhi Owner
3. United India Insurance Co. Ltd.
C/o Jeewan Vikas Building, 30-33A,
Asaf Ali Road,
Delhi-110001 Insurance Company
...Respondents
Date of Institution : 29.05.2014
Date of Arguments : 13.07.2018
Date of Judgment : 10.08.2018
MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 1/17
JUDGMENT:
Vide this judgment I shall dispose off this petition and DAR filed by petitioner as well as PS Welcome. The facts of the case are as follows:
1. Facts: Petitioner has alleged that on 22.12.2013 at about 07.00 pm, injured was going from Krishna Nagar to Keshav Chowk, Welcome and reached at Keshav Chowk, when suddenly one bus bearing No. DL-1C-5981, being driven by its driver in rash and negligent manner, struck against injured and caused him injuries. It is further stated that he was removed to GTB Hospital where his MLC was prepared and was also treated there. It is further stated that injured sustained grievous injuries. Police lodged FIR No. 454/13 u/s 279/337 IPC against the driver with PS Welcome. The offending vehicle was apprehended and driver was arrested and charge-sheeted. Petitioner has filed a compensation of Rs.2 Lacs with interest @ 12% per annum.
2. Written Statements: Respondent No. 1 is the driver and has not contested this petitioner and his opportunity to filed WS was closed vide order dated 20.10.2014.
2.1. Respondents No. 2 is the owner of the offending vehicle being plied under a contract between Department of Transport, Government of National Capital Territory of Delhi for operation of Private Stage Carriage Services in Delhi and even bus was carrying a valid permit/fitness to drive on road. It is further stated that the respondent MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 2/17 No.1 was driving the offending vehicle and was carrying a valid DL to drive. It is further stated that the offending vehicle was insured with the insurance company and company is liable to pay this compensation, if any, otherwise this case is liable to be dismissed. Respondent No.1 has denied all the allegations leveled by the petitioner and has prayed that this case is liable to be dismissed.
2.2. Respondent No. 3 i.e. Insurance Company has filed its WS thereby admitting that the offending vehicle was insured with the Respondent, but it has denied all the allegations of the petitioner and has prayed that this petition is liable to be dismissed. It is further stated that the driver was holding a fake DL to drive, due to it amounts to violation of the insurance policy and insurance company is not liable to pay this compensation. It is prayed that this petitioner as well as DAR is liable to be dismissed.
3. ISSUES - From the pleading of the parties following issues are framed as under:
1.Whether petitioner suffered injuries in the accident occurred on 03.05.2014 due to rash and negligent driving of vehicle No. DL-
1PC 5981 being driven by respondent no.1? OPP
2. Whether the petitioner is entitled for any compensation, if so, to what amount and from whom? OPP
3. Relief.
MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 3/17
4. PETITIONER'S EVIDENCE: To prove the case, petitioner has examined PW1 Manoj Kumar who has repeated his allegations levelled in the petition. He has relied upon the documents Ex. PW1/1 to Ex. PW1/5. He has deposed that he sustained injuries during this accident and received treatment against MLC from GTB Hospital and remained 47 days on leaves during 22/12/2013 to 06/02/2014. It is further deposed that he was working with Delhi Police and was earning Rs. 29,146/- pm and could not do his work after this accident and has suffered huge financial losses. It is further deposed that he spent huge amount on his treatment as well as special diet etc. 4.1. During cross examination, he has admitted that he received full salary during his 47 leaves. It is further deposed that he has placed his documents of injury on record but now is perfectly alright barring slight pain. It is further admitted that he is entitled for reimbursement of medical bills but has not claimed those reimbursement of medical bills. He has not suffered any permanent disability.
4.2. PW2 HC Rohtash has proved the leave record of injuries as Ex.Pw2/1 and injured availed medical leaves during the period from 22/12/2013 to 06/02/2014, but no medical prescription was annexed with the leave application, and even he had not furnished any medical papers in support of such leaves.
4.3. PW3 Ct. Sharad Tomar has proved the salalry record of injured as Ex.PW3/1. It is admitted that injured received the complete pay during leave period.
MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 4/17
5. RESPONDENT'S EVIDENCE: Respondent No. 2 has examined R2W1 Dharmendra Kala, Asstt. Manager, who has deposed that he is AR of the respondent No. 2 vide resolution Ex.R2W1/1. It is further deposed that the respondent No. 2 is operating a fleet of cluster buses in pursuance of government contract and offending vehicle was being plied under the same agreement. It is further deposed that offending vehicle was carrying fitness and permit Ex.R2W1/2 and Ex.R2W1/3. It is further deposed that the respondent No.1 was employee of respondent No. 1 and respondent No.1 conducted the skill test of drive of the respondent No.1 and driver qualified that test and also produced his DL which seemed genuine and copy of the same is Mark A. It is further deposed that this accident did not take place by the rash and negligent driving of the offending vehicle and vehicle was duly insured, and insurance company is liable to pay this compensation if any. Copy of Insurance policy is Ex.R2W1/4.
5.1. During cross examination, he has deposed that he is not an eye witness to this accident. It is admitted that the respondent No. 1 was arrested in this case and was also released on bail and is facing criminal trial. It is further admitted that the driver informed the office about this accident, but no complaint was lodged with higher authorities about false registration of this case. It is denied that no accident took place by rash and negligent driving of the offending vehicle. It is further admitted that no driving skill test of the respondent was conducted in his presence and even there is no report with the respondent No. 2 about that skill test. He was not aware about verification of the DL of the driver Mark A or as to whether any copy of MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 5/17 DL of the driver was kept by the company at the time of his appointment. Copy of DL Mark A is the copy of the DL seized by the police and is not the copy which was retained by the company at the time of appointment. He was not aware about the number of DL or its issuing authority, but company came to know about DL that it was fake.
6. R3W1 Rakesh Kumar Shrivastava has deposed that there was no DL issued in the name of respondent No. 1 Vivek Kumar. He has identified the verification report Ex.PW1/5. Report of RTO is Ex.R3W1/A. He has filed a report that DL No. 163516 and 183516 were never issued from his office and the numbers of DL issued by his office are from 76686 to 76739. Ex.R3W1/A is his authority letter and Ex.R3W1/1 has been issued by ARTO and bears signatures of Sh. Saurabh Kumar, ARTO, Jaunpur, UP.
6.1. R2W2 Sunita Behl, Dy. Manager Legal, has deposed that the insurance company served a notice u/o 12 rule 8 CPC through counsel upon owner and driver to produce the DL as well as and other documents, but they failed to produce the DL of the driver. Copy of notice is Ex.R3W2/A and postal receipts are Mark A. Copy of notice was also handed over to the counsel for Respondent No. 2 against receipt Ex.R3W2/B, but no DL was ever provided by the respondents. It is further deposed that the driver of the vehicle was driving the vehicle without DL and it amounts to violation of insurance policy Ex.R3W2/C and insurance company is not liable to pay any compensation.
MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 6/17
7. I have heard the arguments and perused the record. My issue wise findings are as under:
ISSUE NO. 1 - The onus to prove this issue was upon the Petitioner. To discharge this onus, Petitioner has examined himself as PW1 and has repeated his allegations leveled in the petition about mode and manner of accident. Before deciding the case of the petitioner, it is necessary to go through the legal proposition regarding rash and negligent driving which is basic ingredient of Section 166 of M.V. Act.
7.1. Legal proposition to prove rashness and negligence of driver of offending vehicle - The onus to prove the rash and negligent driving is on the Petitioner but this fact is not to be proved beyond doubt or in the similar manner as a fact is to be proved in a civil case. Rather it has to be proved on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition based upon negligence. The observation of the Hon'ble High Court made in New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 is relevant that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, the Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence.
MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 7/17 7.2. Further, the approach of the tribunal has also been defined by the Hon'ble Supreme Court of India in N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter. As such, the case of the petitioner has to be decided in view of the above said proposition in this case.
7.3. Findings on rash and negligent driving of offending vehicle-
In fact, in this case, PW1 Manoj has duly proved that on 22.12.2013 at about 07.00 pm, he was going from Krishna Nagar to Keshav Chowk, Welcome and reached at Keshav Chowk when suddenly the offending vehicle bearing No. DL-1C-5981 being driven by respondent No.1 in rash and negligent manner struck against him and caused injuries. It is further proved that injured was removed to GTB Hospital where his MLC was prepared and was also treated there. MLC has corroborated that the injured suffered fracture injuries during the road accident which sustained grievous injuries in nature. Police lodged FIR No. 454/13 u/s 279/337 IPC against the respondent No.1 with PS Welcome in which he was not only arrested but also charge sheeted. Site plan has proved the spot of accident where this accident took place and has proved that injured was in his lane of driving when this accident was caused by respondent No.1. All the necessary documents of the offending vehicle including MLC of injured, seizure of offending vehicle MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 8/17 and RC etc. were duly seized by the police. Though but mechanical inspection of the offending vehicle has not proved any fresh damage, yet the mechanical inspection report of the vehicle of the injured has corroborated the damage to the vehicle of the injured which was possible by this accident. As such, the absence of damage to the offending vehicle is not fatal to this case, as accident is not disputed by the respondents. On the other hand, R2W1 Dharmender Kala has duly admitted and proved that respondent No.1 informed the office about this accident and even he was arrested in this case. Respondent No. 1 has preferred to keep away from the court and was proceeded ex- parte in this case to dispute this accident. As such, it stands proved that the Respondent No. 1 caused this accident by his rash and negligent driving and resulted into sustaining injuries by the injured. Respondent No. 2 is the owner of the offending vehicle and is vicariously liable for the tortuous act of the driver. As such, Issue No. 1 is decided in favour of the petitioner and against the Respondents.
8. Issue No. 2 - The onus to prove this issue was fixed upon the petitioner. Since the petitioner has proved the issue No. 1, accordingly it is to be determined as to for what compensation is to be awarded to the injured.
8.1. This case is pertaining to the injury sustained by the petitioner and scope of the compensation in injury cases has been discussed by the Hon'ble Supreme Court of India in case titled Mr. R.D. Hattangadi vs M/S Pest Control (India) Pvt. Ltd., 1995 AIR 755 in the following words as under:
MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 9/17 Broadly speaking while fixing an 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 is capable of being calculated in terms of money-, whereas non-pecuniary 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 upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain 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 i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
In view of the above said law, the damages of the petitioner have to be decided under the following heads as under:
9. Reimbursement of medical expenses: Petitioner has proved treatment record and medical bills Ex.PW1/4 (colly), but these documents are not having any medical bills for reimbursement due to injured is not entitled for any reimbursement of these bills.
10. Pain and Suffering: PW1 has proved that he sustained grievous injuries and also received treatment against his MLC and medical papers during the period between 22/12/13 to 06/02/2014 and also availed 47 medical leaves. Though he has not suffered any permanent disability, yet a person under treatment for grievous injuries is supposed to suffer great pain and suffering, due to injured is entitled for compensation under this head.
MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 10/17
11. Conveyance & Special diet: Petitioner has not filed any bill of conveyance and special diet to prove that he spent any amount under these heads. However, he remained under treatment for such a long time and roamed around to get treatment and spending on conveyance was definite. Similarly special diet to under treatment is usually suggested, due to he is entitled for compensation under these heads.
12. Attendant charges: Petitioner has not proved that he paid any amount to any attendant, but he remained under bed confinement and must be assisted by attendant or family members during this long treatment period, due to he is entitled for compensation under this head. He remained under treatment during on 22/12/13 to 06/02/2014 and is entitled for compensation under this head on average basis for a period of 1 month @ Rs. 7,000/- pm.
13. Lose of Income during treatment period: Injured has proved that he remained under treatment between on 22/12/13 to 06/02/2014 and availed paid medical leaves of 47 days. PW2 has proved the leaves record of the injured as per which he remained on leaves during 22/12/13 to 06/02/14. Injured was working with Delhi Police and was drawing a salary of Rs. 27,980/- pm at the time of accident. Though he received salary during leaves period, yet he would have availed such leaves on some other occasion if had not met with this accident. As such, he is entitled for loss of income on account of this accident for a period of 1½ months in lieu of his leaves period and shall be entitled for Rs. 35,685/- after deduction of tax @ Rs. 1000/- pm. MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 11/17
14. Lose of disability: Petitioner is not entitled for compensation under this head as he has not suffered any disability.
15. Damages for inconvenience, hardship, discomfort, frustration and mental stress in life: Petitioner has not proved any disfigurement and loss of amenities and enjoyment in life, but he must have suffered discomfort and hardship on account of these injuries. Even he would have suffered mental stress and loss of enjoyment in life, due to petitioner is entitled for compensation under these heads.
16. As such, petitioner is entitled for the compensation as under:
1. Reimbursement of medical expenses: Nil
2. Pain and Suffering: Rs. 40,000/-
3. Attendant charges for 1 months: Rs. 7,000/-
4. Lose of Income during treatment period Rs. 35,685/-
1 ½ months :
5. Loss of earning capacity including future NIL damages due to this disability:
6. Conveyance & special diet: Rs. 10,000/-
7. Compensation for mental and physical Rs. 10,000/-
shock :
8. Loss of amenities in life: Rs. 5,000/-
9. Damages for inconvenience, hardship, Rs. 5,000/-
frustration and permanent disfigurement.
Total = Rs.1,12,685/-
(rounded off Rs.
1,13,000/-)
MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 12/17
17. Liability: Petitioner has proved that the offending vehicle was insured with the insurance company. Respondent No.1 was driving the offending vehicle and caused the accident due to he is definitely liable to pay this amount of compensation. Respondent No. 2 i.e. owner is also vicariously liable to pay this compensation jointly or severely. Since vehicle was insured with the Respondent No. 3, due to Respondent No. 3 is liable to reimburse the owner against this compensation arising out of rash and negligent driving of the offending vehicle by the Respondent No. 1. However, Respondent No. 3 has taken a defense that the driver of the offending vehicle was holding a fake DL to drive and it amounts to violation of terms of the insurance company, due to insurance company is not liable to pay this compensation. On the other hand, Ld. Counsel for the owner has argued the owner conducted the skill test of the driver at the time of his appointment and he duly qualified the same and even his DL was perfect in appearance, due to insurance company is liable to pay this compensation. Both the parties have examined their respective witnesses to prove their defense. IO has verified the DL and it was found fake during police verification from the office of RTO and R3W1 has proved this fact. On the other hand Respondent No. 2 has examined R2W1 to prove that the respondent conducted skill test of the driver. Ld. Counsel for the owner has relied upon Pepsu Road Transport Corporation v. National Insurance Company, AIR 2014 SC 305 to prove that if the owner conducted driving test of driver and also parted training to the driver then he is not liable for fake DL of the driver. However, in this case, the facts were different. In this case, R2W1 has duly admitted that there is no document to prove that any MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 13/17 such skill test was ever conducted by owner. Even the copy of DL proved on record is the only copy which was supplied with the DAR and no copy of such DL provided by the driver to the respondent at the time of his appointment has been proved on record. Even he did not impart any training as proved in the judgment relied upon by the Ld. Defense counsel. Besides it, this judgment relied upon was passed on the basis of the judgment titled United India Insurance Company Ltd. v. Lehru and Ors, (2003) 3 SCC 338, but in that case, the facts were different and the DL was fake, but was issued genuinely, which is not the case herein, as there is no record found in the office of RTO about issuance of this DL. As such, this judgment is not applicable on the facts of this case.
The judgments titled Paramjit Singh v. New India Insurance Co. Ltd. and Ors., MAC APP. 83/2008 dated 31/05/2016 and Bajaj Allianz General Insurance Co. Ltd. v. Pooja Devi & Ors, MAC APP. 14/2013 have dealt with a breach of violation of the insurance policy on the ground that the accident took place during the expiry of DL but valid before and after the accident in question which is again not the case herein. The Hon'ble Court relied upon National Insurance Co. Ltd. v. Swaran Singh (2004)3 SCC 297 in which the principle of "fundamental breach" and the "rule of main purpose" was applied to deny right of recovery to Insurance company, however in this case, none of the principle is applicable, as the driver in this case was not holding a DL at all and was driving with a fake DL, which also might have contributed to this accident as the driver was driving a heavy vehicle without DL and training and was definitely a fundamental breach. Even the judgment titled Anit Pal v. Fudees Mandal & Ors., MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 14/17 MAC No. 32/2010 is also not applicable on the facts of this case, as in that case, there were two DL and driver was authorized to drive LMV, but not the offending vehicle i.e. heavy vehicle. As such, the respondent No. 2 has failed to prove that he ever conducted any skill test of the respondent No. 1 before employing him. Respondent No. 2 was running a fleet of cluster buses as revealed from his WS under the authorization of government and must have employed a number of drivers, due to it was under the obligation to verify the DL of all the drivers before engaging them and putting the lives of public at large on risk. As such, the driving of the offending vehicle by respondent No. 1 with fake DL amounts to a breach of terms of insurance policy and Respondents No. 3 is liable to pay this compensation with right of recovery from the respondent Nos. 1 & 2.
18. Keeping in view the facts and circumstances of the case, Petition is allowed. Petitioner / injured is entitled for compensation of Rs. 1,13,000/- from the Respondent No. 3 with interest @ 9% p.a. from the date of filing of the petition till realization with rights of recovery from the respondents no 1 & 2, subject to adjustment of waiver of interest or interim compensation, if any, as directed by this court during the pendency of this case. Respondent No. 3 is directed to give notice regarding deposit of the said amount to the petitioner and his counsel. The following award is passed as under:
AWARD This petition is allowed. Respondent No. 3 is directed to pay a compensation of Rs. 1,13,000/- with interest @ 9% p.a. from the date MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 15/17 of filing of the petition till realization, with rights of recovery from the respondents No. 1 & 2, subject to waiver of any interest, if any directed by the court during the pendency of the trial or interim award if any, to the petitioner and to deposit the award amount within one month from the date of this award. Award amount be released to the injured / claimant after deposit by the Respondent No. 3.
19. Disbursal of Award amount: Now the disbursement of award amount has to be considered. The injured is still working and drawing his salary, accordingly, his 50% of award amount with interest is to be released instantly and remaining 50% is to be fixed by the way of FDR for a period of 1 year with accumulative interest. FDRs amount shall be paid on maturity by crediting into the account of the injured through ECS automatically.
19.1. The Manager, UCO Bank or of any other bank as desired by the claimant/s shall open the saving bank account of the claimant/s or transfer to his/her/their existing account/s, if any, nearby to his/her/their residence/s after taking relevant documents.
19.2. The original FDRs shall be retained by the bank in the safe custody. However, the statement containing FDR number, amount, date of maturity and maturity amount shall be furnished to the claimant/s.
19.3. No loan, advance or withdrawal / pre-mature discharge shall be allowed on the above-said FDRs without the permission of this Tribunal. The bank shall not open any joint account of the petitioner/s.
MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 16/17 19.4. The bank shall prepare FDRs in its own name on the receipt of the award amount from the Respondent No. 3 i.e. Insurance Company till the date petitioner/s approach for the release of the amount and thereafter amount along with interest shall be released to the petitioner/s per award of this Tribunal.
19.5. On the request of the petitioner/s, bank shall transfer the saving account to any other bank of UCO bank or any other bank according to the convenience of the petitioner/s. The claimants can operate the saving bank account from the nearest branch of UCO Bank and on request of the claimant/s, bank shall provide said facility.
19.6. The petitioners shall furnish all the relevant documents for opening of the saving bank account and FDR to Nodal Officer, UCO Bank, KKD, Delhi.
20. A copy of this judgment be given free of cost to the parties concerned and also be sent to the court of Ld. MM concerned. Copy of Form V duly filled shall be treated as part of this award. File be consigned to RR and a separated file for compliance be maintained for Digitally signed 13.09.2018. by DEVENDER KUMAR DEVENDER Date:
KUMAR 2018.08.10
16:47:19
+0530
Announced in open court (DEVENDER KUMAR)
On 10.08.2018 PO-MACT/SHAHDARA
KARKARDOOMA COURTS, DELHI
MAC No.630/16 Manoj Kumar Vs. Vivek Singh & Ors. 17/17