Delhi District Court
Mr. Pardeep Kumar vs Mr. Saurabh Juneja on 30 October, 2018
IN THE COURT OF MR. S. S. MALHOTRA: PO:MACT1 (NORTH):
ROHINI: DELHI
MACT No.6272/16
FIR No.1226/15
PS Mukherjee Nagar
Mr. Pardeep Kumar
S/o Mr. Suresh Kumar
R/o H. no.22/3, First Floor, Indra Vikas Colony,
Mukherjee Nagar, Delhi.
Also at: Village Bardujogi, PO Budedha,
Tehsil Laharu, District Bhiwani, Haryana.
....Petitioner
VERSUS
1. Mr. Saurabh Juneja
S/o Mr. Sudhir Juneja
R/o H. no.679, Ground Floor,
Mukherjee Nagar, Delhi.
2. Future Generali India Insurance Company Limited
303310, Third Floor, Kailash Building,
K. G. Marg, Cannaught Place, New Delhi.
....Respondents
DATE OF INSTITUTION OF PETITION : 18.04.2016 JUDGMENT RESERVED ON : 29.10.2018 DATE OF JUDGMENT : 30.10.2018 FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident: 06.09.2015.
MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 1 of 15
2. Name of injured: Pardeep Kumar
3. Age of the injured: 21 years
4. Occupation of the injured: Private job
5. Income of the injured: Rs.20,000/ per month (not proved)
6. Nature of injury: Grievous
7. Medical treatment taken by the injured: Sir Ganga Ram Hospital, Delhi.
8. Period of hospitalization: 06.09.2015 to 08.09.2015.
9. Whether any permanent disability ? If yes, give details. 19% permanent disability in relation to his left lower limb.
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment 88,867/
(ii) Expenditure on conveyance 10,000/
(iii) Expenditure on special diet 15,000/
(iv) Cost of nursing/attendant Nil
(v) Loss of earning capacity Nil
(vi) Loss of income Rs.23,244/ (11,622 x 2)
(vii) Any other loss which may require any special Nil treatment or aid to the injured for the rest of his life
12. NonPecuniary Loss:
(i) Compensation for mental and physical shock 15,000/
(ii) Pain and suffering 15,000/
(iii) Loss of amenities of life Nil
(iv) Disfiguration 25,000/
(v) Loss of marriage prospects Nil MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 2 of 15
(vi) Loss of earning, inconvenience, hardships, As above.
disappointment, frustration, mental stress, dejectment and unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and nature of 19% permanent disability disability as permanent or temporary in relation to his left lower limb
(ii) Loss of amenities or loss of expectation of life Nil span on account of disability
(iii) Percentage of loss of earning capacity in 10% relation of disability
(iv) Loss of future income - (Income X%Earning Rs.3,51,449.28 by taking capacity X Multiplier) functional disability 10% qua whole body
14. TOTAL COMPENSATION Rs.3,80,492.28 (5,43,560.28 - 1,63,068 i.e. 30% reasons as mentioned in para no.19.
15. INTEREST AWARDED 9% per annum
16. Interest amount up to the date of compliance 85,610.76 (3,80,492.28 x 9/100 x 30/12)
17. Total amount including interest 4,66,103.04 (rounded as 4,66,000/)
18. Award amount released 10%
19. Award amount kept in FDRs 90%
20. Mode of disbursement of the award amount to In phased manner the claimant (s) (Clause29)
21. Next date for compliance of the award. (Clause 18.12.2018
31) MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 3 of 15 FORM - V COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 06.09.2015
2. Date of intimation of the accident by the investigating 18.04.2016 officer to the Claims Tribunal (Clause 2)
3. Date of intimation of the accident by the investigating do officer to the insurance company. (Clause 2)
4. Date of filing of Report under section 173 Cr.P.C. before Not known the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident Information Report 18.04.2016 (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Company (Clause do
11)
7. Date of service of DAR on the claimant(s). (Clause 11) do
8. Whether DAR was complete in all respects? (Clause 16) Yes
9. If not, whether deficiencies in the DAR removed later on? No
10. Whether the police has verified the documents filed with Yes DAR? (Clause 4)
11. Whether there was any delay or deficiency on the part of the Yes. Directions are Investigating Officer? If so, whether any action/direction being issued as per warranted? Hon'ble High Court to all DCPs/CP, Delhi.
12. Date of appointment of the Designated Officer by the Not known insurance Company. (Clause20)
13. Name, address and contact number of the Designated do Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Insurance Company Yes submitted his report within 30 days of the DAR? (Clause MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 4 of 15
20)
15. Whether the insurance company admitted the liability? If No so, whether the Designated Officer of the insurance company fairly computed the compensation in accordance with law. (Clause 23)
16. Whether there was any delay or deficiency on the part of the No Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to the offer of the N/A Insurance Company. (Clause 24)
18. Date of the Award 30.10.2018
19. Whether the award was passed with the consent of the No parties? (Clause 22)
20. Whether the claimant(s) were directed to open saving bank Yes account(s) near their place of residence? (Clause 18)
21. Date of order by which claimant(s) were directed to open 20.05.2018 saving bank account (s) near his place of residence and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the passbook of 30.08.2018 their saving bank account near the place of their residence along with the endorsement, PAN Card and Aadhar Card? (Clause 18)
23. Permanent Residential Address of the Claimant(s) (Clause H. no.22/3, First
27) Floor, Indra Vikas Colony, Mukherjee Nagar, Delhi.
24. Details of saving bank account(s) of the claimant(s) and the Oriental Bank of address of the bank with IFSC Code (Clause 27) Commerce, Dhigawa Branch, Bhiwani, Haryana MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 5 of 15 having account no.
20792122002917.
25. Whether the claimant(s) saving bank account(s) is near his Yes place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the time of Yes passing of the award.
AWARD
1. Police filed Detailed Accident Report (DAR) with respect to accident occurred on 06.09.2015. Brief facts of the DAR are that on 06.09.2015 on receipt of DD no.60B, SI Kuldeep Kumar went to Sir Ganga Ram Hospital, Delhi and collected MLC of injured Mr. Pardeep Kumar but he was not fit for statement and on 07.09.2015 IO again visited the said hospital got recorded statement of injured Mr. Pardeep Kumar and he also found eye witness of the case Mr. Rajesh Chawla and he then recorded his statement. On 24.09.2015, IO also found two eyewitnesses of the case Mr. Ashok Sachdeva and Mr. Dilip Kumar Dubey and recorded their statements. On an endorsement made by IO, FIR No.1226/15 was registered in PS Mukherjee Nagar, Delhi, about that accident.
2. After completion of investigation, police indicted respondent for offences punishable under Sections 279/338 of IPC. IO filed 'Detailed Accident Report' (DAR) before this tribunal on 18.04.2016 and produced injured Mr. Pardeep Kumar, drivercumowner Mr. Saurabh Juneja before this tribunal. Offending vehicle was duly insured with Future Generali Insurance Company Limited i.e. respondent no.2 and Mr. Sujit K. Jaiswal, Advocate on behalf of said respondent no.2 was present at the time of filing of DAR.
3. Respondent no.1 had not filed any written statement.
MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 6 of 15
4. Respondent no.2 had contested claim by filing its separate written statement stating therein that the police deliberately made a false case of rash and negligent driving of vehicle bearing no.DL6CL4875 by Mr. Saurabh Juneja despite there being statements of independent witnesses to establish that the injured was himself responsible for the accident and that there was no negligence on the part of Mr. Saurabh Juneja. It is stated that from the detail accident report and statements of witnesses it is clearly established that the claimant was driving the motorcycle having two pillion riders on it and the petitioner was driving it in a fast speed in a narrow road and the driver of car had just started moving and the petitioner unable to control his motorcycle with two pillion riders and being driven in fast speed, touched the side of the car and fell down.
5. After completion of the pleadings, following issues were framed on 29.05.2018:
(i) Whether petitioner suffered injuries in a vehicular accident on 06.09.2015 at 10:25 am near House no.679, Mukherjee Nagar, Delhi due to rash or negligent driving of vehicle no. DL6CL4875 (Wagon R Maruti) by respondent no.1? OPP.
(ii) Whether petitioner is entitled to compensation if yes, what amount and from whom of respondents? OPP.
(iii) Relief.
6. In order to prove his claim, petitioner has not examined any witness.
Respondent no.1 examined himself as R1W1 and Mr. Rajesh Pushkarna as R1W2. Respondent no.2 had not led any evidence.
7. I heard ld. counsel appearing on behalf of petitioner and respondent no.2.
MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 7 of 15 My issuewise findings are as under: ISSUE No.1: Whether petitioner suffered injuries in a vehicular accident on 06.09.2015 at 10:25 am near House no.679, Mukherjee Nagar, Delhi due to rash or negligent driving of vehicle no. DL6CL 4875 (Wagon R Maruti) by respondent no.1? OPP.
8. The onus of these issues is upon the petitioner. To prove this fact petitioner examined himself as PW1 and in his affidavit (Ex.PW1/A), he reiterated the facts of DAR. He deposed that on 06.09.2015 he was going from Batra Complex via Meerut Wali Gali towards Indira Vikas Colony, Mukherjee Nagar, Delhi and when he reached just before Ulike property shop, one Maruti WagonR bearing no.DL6CL04875 came there which was being driven at a high speed, in a rash and negligent manner and hit his motorcycle with great force from left side and he fell down on road and sustained injuries. He deposed that driver of the offending vehicle fled away form the spot with his vehicle and his friend took him to Sir Ganga Ram Hospital for treatment. In the crossexamination he deposed that at the time of accident he was driving the motorcycle and there were two pillion riders.
9. Respondent no.1 examined himself as R1W1 and he deposed that on 06.09.2016 he was taking out his car from the parking and petitioner aongwith two other riders drove their motorcycle no.DL8SBE5953 in a rash and negligent manner and hit his car. He deposed that due to said impact the petitioner alongwith other two rider fell down and the leg of the petitioner struck up in the motorcycle and got his leg injured and he alongwith his neighbour namely Mr. Rajesh Pushkarna and his father Mr. MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 8 of 15 Sudhir Juneha took the petitioner to the hospital. In the crossexamination he deposed that he was just coming out from the parking driving his vehicle at the speed of 510 KMPH and turning the vehicle, in the meanwhile the accident had occurred and the accident occurred due to his vehicle as petitioner hit his vehicle from behind.
10. R2W2 Mr. Rajesh Pushkarna deposed on the lines of R1W1.
11. It is admitted by the petitioner in his crossexamination that at the time of accident he was driving the motorcycle and there were two pillion riders. Although there is no specific evidence with respect to contributory negligence but the fact from the statements of eyewitnesses is self explanatory to the effect that the petitioner was not competent to drive the vehicle having two pillion riders have a triple riding on a motorcycle. Negligence on his part has to be contributed upon him, as the motorcycle being driven by him in a rash and negligent manner that too by having a triple riding cannot be appreciated. This daring attitude of the petitioner cannot be encouraged by this court irrespective of the fact that proceedings under Motor Vehicles Act are being considered as a proceedings under a social piece of legislation.
12. Petitioner had been duly crossexamined but the testimony of the witness with respect to accident and rash & negligent driving of offending vehicle could not be impeached. Being injured, petitioner is the natural eyewitness of the case. However, there is sufficient evidence to show that accident happened not only on account of rash and negligent driving by respondent no.1 but rash and negligent driving by petitioner also. The fact that petitioner suffered injuries in that accident is not disputed and he suffered MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 9 of 15 injuries in the accident is also supported by medical documents. I have no reason to disbelieve the testimony of PW. Even otherwise the fact of negligence while disposing off a claim under MACT, is not that strict as it is under Sections 279/338 of IPC. After investigation, police indicted respondent no.1 for offences punishable under Sections 279/338 of IPC. As far as the concept of contributory negligence is concerned has been discussed in subsequent paras.
13. This issue is therefore decided in favour of the petitioner and against respondents by holding that petitioner suffered injuries in a vehicular accident due to rash and negligent driving of Maruti WagonR bearing no.DL6CL04875 by respondent no.1.
ISSUE No.2: Whether petitioner is entitled to compensation if yes, what amount and from whom of respondents? OPP.
14. Being injured, petitioner is well within his rights to claim compensation. It is deposed by PW1 that from the spot, he was taken to Sir Ganga Ram Hospital, Delhi for treatment. He deposed that he spent Rs.10,00,000/ on his treatment, special diets and conveyance. However medical bills of Rs.88,867/ have been put on file. Hence the said sum of Rs.88,867/ is granted to petitioner as medical expenses and he is also granted a sum of Rs.25,000/ for disfigurement. There is no evidence except deposition of petitioner to verify that he spent any amount on special diets or conveyance. Seeing nature of injuries suffered by him, petitioner is granted a sum of Rs.15,000/ for special diets and Rs.10,000/ for conveyance.
15. According to documents placed on record, the date of birth of petitioner is 16.10.1994 and he was more than 21 years of age at the time of accident. In MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 10 of 15 view of paragraph no. 61 (iv) of judgment in National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, decided on 31.10.2017 and the judgment of Hon'ble Delhi High Court in case of Sanjay Oberoi vs. Manoj Bageriya, MAC Appeal no.829/2011 decided on 03.11.2017, the injured would be entitled to an addition of 40% of the established income as he was 21 years of age at the time of accident.
16. As far as loss of income on account of loss of future earning due to disability is concerned, the petitioner has submitted that he was doing private job and was earning Rs.20,000/ per month but there is no evidence except his own deposition in this regard. Therefore to calculate the extent of compensation with respect to his loss of future earning the minimum wages of a matriculate at the prevalent time has to be taken which was Rs.11,622/ per month at that time. Keeping in view the fact that injured was 21 years old at the time of accident, therefore the income for the purpose of loss of future earning has to be taken as Rs.16,270.80 (11,622 + 4,648.80) per month. Said income of injured is not taxable. A multiplier of 18 is thus taken for calculating his loss to future earnings.
17. As per the disability certificate Ex.PW1/D41 the petitioner has suffered 19% permanent disability in relation to his left lower limb. Seeing age and occupation of petitioner, his functional disability is taken as 10% qua the whole body. Counting in this way, his loss to future earnings comes to Rs.3,51,449.28 (16,270.80 x 12 x 18 x 10/100). This amount of Rs.3,51,449.28 is allowed to petitioner, as loss of future earnings, due to permanent disability. It is submitted by counsel for petitioner that his client MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 11 of 15 could not work for about six months due to the said accident and he claimed loss of earnings during the said period. Keeping in view the nature of injuries suffered by petitioner, petitioner is also granted a sum of Rs.23,244/ (11,622 x 2) i.e. equal to two months income towards for loss of earnings during the period of treatment.
18. Apart from amounts mentioned above, petitioner is allowed Rs.15,000/ for pain and suffering and Rs.15,000/ for mental & physical shock due to this accident, making a total of Rs.5,43,560.28, detail of which is given as under:
(i) Medical expenses Rs. 88,867/
(ii) Disfigurement Rs. 25,000/
(iii) Special diets Rs. 15,000/
(iv) Conveyance Rs. 10,000/
(v) Loss of future earnings Rs. 3,51,449.28
(vi) Pain & suffering Rs. 15,000/
(vii) Mental & physical shock Rs. 15,000/ s. 5,43,560.28 Total R
19. Now coming to the aspect of liability. It has already been held that the petitioner had suffered injuries due to rash and negligent driving of respondent no.1. The petitioner has made the respondent no.2 (insurance company) as one of the party and prayed that the respondent no.2 be directed to pay the compensation to the petitioner. However respondent no.3 has contended that it is not liable to pay any compensation since the motorcycle, which was being driven by petitioner, three persons were travelling on it and the accident took place due to contributory negligence of driver of motorcycle. It is admitted by PW1 in his crossexamination that at the time of accident he was driving the motorcycle and there were two MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 12 of 15 pillion riders. All these facts shows that there is some negligence on the part of victim as well and thus contention of Ld. counsel for respondent no.2 with respect to contributory negligence is fell found. He further relied upon the judgment reported as Santosh Kanwar and Ors Vs. Om Prakash & Ors. 1986 ACJ 799. The relevant paragraph16 of this judgment is reproduced as under: "16. However, one more undisputed fact shows that there were 3 person riding on the motor cycle at the time when the accident took place. The motor cycle is meant for 2 person and when 3 persons sit on it, it is in itself an act, which shows that the driver of the motor cycle was careless and negligent regarding the safety of the vehicle and the persons sitting on the same. Overloading of any vehicle, more so of a two wheeler is a matter which involves danger to the safety of the persons riding on th same. Therefore, even though the motorcyclist slowed down his motor cycle, still he was careless and negligent in putting 3 persons on his motor cycle and it, therefore, liable to contributory negligence to some extent. Even though the contributory negligence has not been pleaded by the opposite parties in their pleadings, still the court from the evidence on record can itself draw conclusion regarding this aspect of the matter. In these circumstances of the case and the view of the fact that motorcyclist slowed down the motor cycle on seeing the truck and the truck did not slow down while entering the intersection, I feel that the motorcyclist should be held liable for contributory negligence to the extent of 30% and the truck driver to the extent of 70%."
20. Accordingly, keeping in view the facts and circumstances the above cited judgment, 30% negligence is attributed on the part of victim.
21. This issue is therefore decided in favour of the petitioner and against respondents by holding that respondent no.2 is liable to pay compensation to the petitioner.
ISSUE No. 3 (RELIEF)
22. Petition in hands is allowed. Respondent no.2 is directed to pay MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 13 of 15 Rs.3,80,492.28 (5,43,560.28 - 1,63,068 i.e. 30% on account of contributory negligence) to the petitioner as compensation in this case, within 30 days from today, along with interest @ 9% p.a. from the date of filing of DAR i.e. 18.04.2016 till 04.01.2018 and from 07.03.2018 till its realization.
23. On 30.08.2018, petitioner gave a statement about disbursement of amount of compensation.
24. Considering circumstances of petitioner and after consulting ld. counsel representing him, 90% of the amount of compensation be invested in FDRs in any nationalized bank in his name be given to him by way of monthly FDRs/installments of Rs.10,000/ each to be directly credited from his FDR account to his regular account. Remaining 10% of amount be disbursed to him by way of transferring the same in his saving bank account where from the petitioner would be allowed to withdraw the same through withdrawal slip only and by no other mode/modes i.e. ATM/ debit card/credit card/letter/NEFT/RTGS etc.
25. The salient features as prescribed in the judgment in Rajesh Tyagi Vs. Ramesh Chandra Gupta FAO No. 842/2009 and MAC. App. No. 422/2009 decided on 07.11.2014 are to be applied:
(i) The fixed deposit be renewed automatically till the period prescribed by the Court.
(ii) The interest on the fixed deposit be paid monthly.
(iii) The monthly interest be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt be retained by the bank in safe custody.MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 14 of 15
However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book/ATM/debit card/credit card shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal or premature encashment shall be allowed on the fixed deposit without permission of the Court.
26. Respondent no.2 is directed to deposit entire amount of compensation with this tribunal, within 30 days from today, with advance notice to petitioner.
Digitally signed by File be consigned to record room. SUKHVIR SUKHVIR SINGH SINGH MALHOTRA Date: 2018.10.30 MALHOTRA 17:13:39 +0000 ANNOUNCED IN THE OPEN (S. S. MALHOTRA) COURT ON 30.10.2018 PO, MACT NORTH, ROHINI, DELHI MACT no. 6272/16 Pardeep Kumar Vs. Saurabh Juneja and ors. Page 15 of 15