Delhi District Court
Rishabh vs Garvit Malik And Ors on 3 July, 2024
IN THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH WEST, ROHINI COURTS, DELHI
PRESIDED BY SH. SHIVAJI ANAND,
==============================================
UID No. / CNR No. DLNW01-002537-2021 & UID No. / CNR No. DLNW01-003057-2022 MACT CASE No. 147/21 & 215/22 FIR No. 308/19, PS Begumpur In the matter of :
1. Sh. Rishabh S/o Sh. Kailash Chand R/o D-36, Gali no.6, Niti Vihar, Kirari Suleman Nagar, Delhi.
.....Petitioner Vs.
1. Sh. Garvit Malik S/o Sh. Dalbir Singh R/o H.No.C-4/12, Rama Vihar, C Block, Mohammadpur Majri, Karala, Delhi.
....Driver/R1
2. Sh. Dalbir Singh S/o Sh. Dilip Singh Malik, R/o H.No.C-4/12, Rama Vihar, C Block, Mohammadpur Majri, Karala, Delhi.
....Owner/R2
3. Tata Aig Insurance Company Ltd.
O/o 105, A, 1st Floor, DDA-2, District Centre, New Delhi.
....Insurer/R3
Date of institution of the petition : 20.03.2021
Date of final Arguments : 18.05.2024
Date of Decision : 03.07.2024
Appearance (s) : Sh. R. N. Chaudhary and Ms. Nidhi Mishra, Ld.
MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 1 of 16 Counsels for petitioner.
R1 and R2 already proceeded ex-parte.
Sh. V. K. Gupta, Ld. counsel for R3.
JUDGMENT/AWARD
1. Vide this judgment/award, I shall dispose off the Detailed Accidental Report (in short, the DAR) filed by the IO ASI Jaswant Singh in FIR No.308/19, PS Begumpur, Delhi pertaining to the injury of Sh. Rishabh (in short, the injured) as well as the petition u/s 166 & 140 of MV Act filed by the petitioner namely Rishabh in road accident.
FACTULAL POSITION AND PLEADINGS
2. The brief facts relevant for disposal of the present DAR as well as petition are that on 03.09.2019 at about 6:30, the petitioner alongwith his friends namely Amit and Sanjay were returning towards their residence from Budh Vihar by a scooty bearing registration no.DL-11SS-4937. The said scooty was being driven by the friend of the petitioner and the petitioner was siting as a pillion rider on the abovesaid scooty. When they reached at main 100 Foota road, near Begumpur Police Station, at the same time, a car bearing registration no.DL-8CAP-0408 (in short, the offending vehicle) was driven by respondent no.1/driver in a rash and negligent and at a very high speed came from behind side and hit the scooty on which the petitioner and his friends were riding. As a result the petitioner fell down on the road and sustained multiple injuries on his left ankle and foot with avulsion flat injury left heel with exposed TA with closed fracture medical malleolus with compression fracture MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 2 of 16 calcareum.
3. It is further stated that the petitioner was shifted to Shree Aggrasain International Hospital Rohini by the driver of the offending vehicle where his MLC was prepared and the petitioner remained admitted in this hospital from 04.09.2019 to 06.09.2019. During this period the required treatment was done by the doctor of this hospital.
4. It is further stated that the petitioner was doing private job with Madhusudan Company and used to earn Rs.17,000/- per month. But he is not able to continue his work for 6 months after his accident because he suffered permanent disability due to this accident.
5. It is stated that an FIR bearing No.308/19, PS Begumpur, u/s 279/338 IPC & 185, 5/180, 146/196, 3/181, 129/177, 128/177 MV Act was registered in this regard.
6. Written statement has been filed on behalf of R1 and R2 wherein it is inter alia submitted that the present DAR does not disclose any cause of action against the answering respondent. It is further submitted that the petitioner has concealed the material facts and file the present DAR to extort money from answering respondent. It is further submitted that the petitioner is not entitled for any claim as alleged in the DAR because the injured had not caused injuries due to the fault or negligence of answering respondent. It is further submitted that on the day of accident, the respondent no.1 was after completing his college going towards his MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 3 of 16 home and when in the way, the respondent no.1 reached near the PS Begumpur, suddenly the injured alongwith two persons by driving his scooty were coming from wrong side and the respondent no.1 after seeing all activities understands that petitioner was taking turn under the influence of alcohol. Thus, the present DAR as well as petition is liable to be dismissed as the entire claim of petitioner is just based on manipulated and concocted story only and he does not come to his Hon'ble Court with clean hands. It is further submitted that the respondent no.2 is only bread earned of his family and he earns his livelihood for himself and his family. Moreover, respondent no.1 possessed valid driving license and valid insurance of vehicle rather it is the injured who has not having valid driving insurance and driving license and thus, if any reliefs/claim grants in favour of petitioner, the same shall be payable by the respondent no.3/insurance company.
7. Reply/written statement has been filed on behalf of respondent 3/insurance Co. wherein it is submitted that the investigating officer of FIR has filed the DAR with chargesheet u/s 173 Cr.PC for offence u/s 279/337/338 IPC & 3/181, 5/180 of MV Act before this Tribunal. It is further submitted that the injured was the pillion rider being driven by Sh. Amit, then the driver of the offending car hit the scooty due to which the injured sustained injuries and MLC result has not been provided with the DAR. It is further submitted that the insurance company admits that offending vehicle was insured with the answering respondent at the relevant time i.e. on 03.09.2019 vide policy no.015898529 00 00 for a period MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 4 of 16 from 29.10.2018 to 25.10.2019 in the name of Sh. Dalbir Singh Malik on certain terms and conditions. Report of designated officer of the insurance company has also been attached with the reply/written statement of insurance company.
8. Vide order dated 06.04.2022, the opportunity to file WS/reply on behalf of respondent was closed. Thereafter, DAR was filed by the IO in which name of respondent no.2 and 3 have been given. Thus, order dated 02.12.2022, the reply has been filed on behalf of respondents and issues were framed again.
ISSUES:
9. After completion of pleadings, following issues were framed by this Tribunal on 02.12.2022: -
1. Whether petitioner Rishabh, S/o Sh. Kailash Chand suffered injuries in road traffic accident on 03.09.2019 at about 06.30 PM, Near Begumpur Police Station, 100 Foota Road, Begumpur, Delhi, due to rash and negligent driving of offending vehicle i.e. Car bearing registration no. DL-8CAP-0408 which was being driven by driver Garvit Malik S/o Sh.
Dalbir Singh on the said date, time and place? OPP.
2. Whether the petitioner/injured is entitled for compensation, if so, to what amount and from whom? OPP.
MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 5 of 16
3. Relief.
PETITIONER'S EVIDENCE
10. Thereafter, matter was listed for recording of petitioner's evidence. In order to prove its case, petitioner Rishabh has been examined as PW1 and tendered his evidence by way of affidavit which is Ex.PW-1/A bearing his signature at point A and B and relied upon the following documents which are as follows:
1).Photocopy of Aadhar Card of Petitioner is Ex. PW-1/1 (OSR).
2).Original treatment records of Petitioner is Ex. PW-1/2 (Colly).
3).Original medical bills of the Petitioners are Ex. PW-1/3 (Colly).
4).Photocopy of academic certificate of the Petitioner is Ex. PW1/4.
5).Copy of DAR Ex. PW-1/5 (Colly).
11. In cross-examination by Ld. Counsel for R3, PW-1 testified that they were riding the said scooty and the scooty was being driven by Amit and he was sitting in between and Sanjay was sitting behind him. He denied the suggestion that Amit and Sanjay were under the influence of alcohol. He further denied the suggestion that he was under the influence of alcohol. He denied the suggestion that none of them were wearing any helmet at the time of accident. He testified that his MLC already on record shows that he was smelling of alcohol positive. He has not made any protest against the said wordings in his MLC. He testified that the scooty was being driving on the left side of the road and the scooty was dashed from the backside, from the front side of the vehicle bearing no. DL-8CAP-0408 and the vehicle was of white colour.
MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 6 of 16 He testified that the offending vehicle was a car. He denied the suggestion that the said vehicle has falsely been implicated in collusion with the police official and R1 & R2. He further denied the suggestion that he was not required any bed rest or special Diet. He further denied the suggestion that the accident occurred due to negligence of driving of scooty including him travelling on scooty or that the scooty has been driven in gross violation of traffic rules & regulations and rashly and negligently. He admitted that he does not know whether the scooty driver was hold D/L to drive scooty or not. He testified that he does not have any documentary proof to show his income or that he was working with Madhusudan Company. He denied the suggestion that he has not made any protest for the influence of alcohol at the time of accident. He denied the suggestion that his affidavit is wrong or that he was deposing falsely. In his cross examination by ld. Counsel for R1 and R2, he adopted the cross examination conducted by Ld. Counsel for R3.
12. Thereafter, petitioner's evidence was closed by the Ld. Predecessor of this court vide order dated 23.11.2023 and matter was listed for respondent's evidence. Vide order dated 25.01.2024, the respondent's evidence was closed by the Ld. Predecessor of this court and matter was listed for final arguments.
FINDINGS:
13. I have heard ld. Counsel for the petitioner and have gone through the testimony of P W 1 including the pleadings and the MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 7 of 16 documents. My issue wise findings in the case are as under :-
ISSUE NO.1
14. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case. Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303.
15. In order to prove this issue, the petitioner has examined himself as PW-1. He deposed that on 03.09.2019 at about 6:30, the petitioner alongwith his friends namely Amit and Sanjay were returning towards their residence from Budh Vihar by a scooty bearing registration no.DL-11SS-4937. The said scooty was being driven by the friend of the petitioner and the petitioner was siting as a pillion rider on the abovesaid scooty. When they reached at main MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 8 of 16 100 Foota road, near Begumpur Police Station, at the same time, a car bearing registration no.DL-8CAP-0408 (in short, the offending vehicle) was driven by respondent no.1/driver in a rash and negligent and at a very high speed came from behind side and hit the scooty on which the petitioner and his friends were riding. As a result the petitioner fell down on the road and sustained multiple injuries on his left ankle and foot with avulsion flat injury left heel with exposed TA with closed fracture medical malleolus with compression fracture calcareum. The petitioner was shifted to Shree Aggrasain International Hospital Rohini by the driver of the offending vehicle where his MLC was prepared and the petitioner remained admitted in this hospital from 04.09.2019 to 06.09.2019. During this period the required treatment was done by the doctor of this hospital. The testimony of PW1 against the respondent no.1 is corroborated by the documentary evidence that respondent no.1 was present at the spot and driving the offending vehicle at the time of accident. Therefore, the case does not warrant any other best evidence. Keeping in view the facts & evidence produced by the petitioner, it has proved on record that the said accident has taken place due to the rash and negligent driving of the offending vehicle being driven by respondent no.1, as a result of which, the petitioner sustained injuries.
16. The FIR has been lodged against the respondent no.1 and he has faced criminal charges of causing injuries by rash and negligent driving in the said accident.
17. In view of the aforesaid discussion and the evidence MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 9 of 16 which has come on record, it is held that the rashness and negligence on the part of driver of the offending vehicle, which is clearly visible and as such, was responsible not only for this accident, but also for everything that followed thereafter. Accordingly issue no.1 is decided in favour of the petitioner and against the respondents.
ISSUE NO. 218. As the issue no.1 has been proved in affirmative and in favour of the petitioner, the petitioner has become entitled to be compensated for the injuries suffered in the above accident, but the computation of compensation and liability to pay the same are required to be decided.
19. In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as non- pecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non- pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 10 of 16 incurred by the claimant towards his treatment, special diet, conveyance, cost of nursing/ attendant, loss of income/earning capacity etc. and the non-pecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or compensation can put the injured/claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work in calculating the different amounts which the claimant may be entitled under the different heads of compensation. Reference in this regard can be made on some of important judgments on the subject like the judgment in the case of R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd., AIR 1995 SC 755, Arvind Kumar Mishra Vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343.
20. In light of the above legal prepositions, the amount of compensation which could be considered to be 'just' in the opinion MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 11 of 16 of this tribunal shall be as under:-
Medical or Treatment Expenses:
21. Petitioner has deposed after the accident, he was taken to Shree Aggrasain International Hospital Rohini where his MLC was prepared and the petitioner remained admitted in this hospital from 04.09.2019 to 06.09.2019. Ex.PW-1/3 (colly) shows the medical bills of petitioner for an amount of Rs.58,747/- and same was not objected by the respondents. Keeping in view of the nature, the petitioner is granted a nominal sum of Rs.58,747/- under this head.
Pain and Suffering
22. As per the MLC, the petitioner sustained injuries in the above accident. It is not possible to quantify the compensation admissible to petitioner for the shock, pain and sufferings etc. which he actually suffered because of the above injuries, but as stated above, an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by petitioner and duration of the treatment taken by him etc., an amount of Rs. 50,000/- is being awarded to him towards pain and sufferings during the said period of his treatment and immobility. Thus, he is awarded a total amount of Rs. 50,000/- under this head.
Loss of actual earnings:
23. In the petition, the petitioner claims that at the relevant time, he was doing private job with Madhusudan Company and MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 12 of 16 earns Rs.17,000/- per month. However, there is nothing on record to corroborate the claim of the petitioner. Ex.PW-1/4 shows that the petitioner was secondary school examination passed. Thus, it would be appropriate that the monthly income of petitioner be assessed as per the minimum wages payable to a non-matriculate person in Delhi as on the date of accident. As per relevant notification, the minimum wages admissible to a matriculate person as on 03.09.2019 in Delhi were Rs.16,284/-. Keeping in view the nature of injury as grievous in MLC and medical bills of two months, the petitioner is held entitled to a sum of Rs.16,284/- x 2= Rs.32,568/-.
Conveyance, Attendant Charges and Special Diet
24. Petitioner has claimed a sum of Rs. 50,000/- for special diet, Rs.25,000/- on conveyance and attendant charges. However, he failed to place on record any corroborative material in this regard. In view of the nature of injuries sustained by him, a sum of Rs. 20,000/- each is awarded to the petitioner cumulatively under these heads. Thus, the total compensation is assessed as under : -
S. No. Head Amount
1 Medical Expenses 58,747/-
2 Pain and Suffering 50,000/-
3 Loss of actual earning 32,568/-
4 Conveyance, Attendant charges and special diet 60,000/-
Total 1,81,184/-
approx. (10 %
deduction as
he was drunk
at the time of
accident as per
MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 13 of 16 his MLC) Issue No.3/Relief:
25. The petitioner is held entitled to recover an amount of Rs.1,81,184/- (Rupees One Lac Eighty One Thousand One Hundred Eighty Four Only) only along with interest @ 9% from the date of filing of case i.e. 20.03.2021. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
LIABILITY:
26. As already stated above, R-1 being the driver and R-2 being owner of the offending vehicle, and also being vicariously liable for the acts of R-1, are jointly and severally liable to pay the awarded amount of compensation to petitioner. However, since the offending vehicle was insured with R-3 at the time of accident, therefore, R-3 is liable to indemnify R-2 in respect of above liability. As such R-3 is directed to deposit the above award amount within 30 days from the date of this Award by way of NEFT or RTGS mode in the account of this Tribunal under intimation to the petitioner/ injured and this Tribunal in terms of the format for remittance of compensation as provided in Divisional Manager Vs. Rajesh, 2016 SCC Online Mad. 1913 (and reiterated by Hon'ble Supreme Court in the orders dated 16.03.2021 and 16.11.2021 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 14 of 16 & Ors) along with interest @ 9% per annum.
APPORTIONMENT
27. It is noted that statement of claimant/ petitioner in terms of Clause 26 MCTAP was not recorded, therefore, the apportionment is withheld.
28. Respondent no. 3/Insurance Company is directed to deposit the Award amount in the SBI, Rohini Court Branch within 30 days as per above order, failing which he shall be liable to pay interest @ 9% p.a for the period of delay.
29. Copy of the award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Central Motor Vehicles (fifth Amendment) Rules, 2022 [(Directions at serial nos. 39, 40 of Procedure for Investigation of Motor Vehicle Accidents (under Rule 150A)]. Further Nazir is directed to maintain the record in Form XVIII in view of Central Motor Vehicles (fifth Amendment) Rules, 2022 [(Directions mentioned at serial no.41 of Procedure for Investigation of Motor Vehicle Accidents (under Rule 150A)].
30. Ahlmad is directed to e-mail an authenticated copy of the award to the insurer as directed by the Hon'ble Supreme Court of India in WP (Civil) No. 534/2020 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India & Ors. on 16.03.2021. Ahlmad shall also e-mail an authenticated copy of the award to MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 15 of 16 Branch Manager, SBI, Rohini District Courts for information.
31. Ahlmad is further directed to comply with the directions passed by the Hon'ble High Court of Delhi in MAC APP No. 10/2021 titled as New India Assurance Company Ltd. Vs. Sangeeta Vaid & Ors., date of decision : 06.01.2021 regarding digitisation of the records.
32. Form V and IVB in terms of MCTAP are annexed herewith as Annexure-A. A separate file be prepared for compliance report by the Nazir and put up the same on 03.08.2024.
File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT ON 03rd DAY OF July, 2024 (SHIVAJI ANAND) DJ-1+MACT, NORTH WEST, ROHINI COURTS, DELHI MACT Case No.147/21 & 215/22 (FIR no. 308/19) Rishabh Vs. Garvit Malik Page no. 16 of 16