Delhi District Court
Master Saddam vs Manoj Kumar on 22 October, 2018
IN THE COURT OF S.S. MALHOTRA:
PO:MACT-1 (NORTH): ROHINI: DELHI
MACT No. 6585-16
FIR no. 90/13
PS Bawana
1. Master Saddam
S/o Late Bahadur
R/o C-311, JJ Colony, Bawana, Delhi.
.........Petitioner
VERSUS
1. Manoj Kumar
S/o Sh. Jai Ram Yadav
R/o C-214, Janakpuri,
PS Sahibabad, District Ghaziabad (UP).
2. M/s Pashupati Road Carrier Pvt. Ltd.
A-873, 1st Floor, New Hanuman Mandir,
Shastri Nagar, New Delhi.
3. IFFCO TOKIO Gen. Ins. Co. Ltd.
IFFCO Sadan, C-1, Distt Centre,
Saket, New Dehli-110017.
......Respondents
DATE OF INSTITUTION : 15.07.2016
Master Saddam Vs. Manoj Kumar & Ors.
MACT no. 6585-16 1 /18
JUDGMENT RESERVED ON : 15.10.2018
DATE OF AWARD : 22.10.2018
FINAL ORDER : AWARD OF RS.
52,000/-
FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT 1 Date of accident 27.02.2013 2 Name of injured Master Saddam 3 Age of the injured 15 years 4 Occupation of the injured Vegetable vendor (not proved) 5 Income of the injured 5000/- not proved 6 Nature of injury Grievous
7 Medical treatment taken by the From Maharishi Valmiki Hospital,
injured Delhi.
8 Period of hospitalization Discharged on same day
9 Whether any permanent No.
disability ? If yes, give details
10. Computation of Compensation
S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Nil. (no medical bills filed on
record)
(ii) Expenditure on conveyance 15,000/-
Master Saddam Vs. Manoj Kumar & Ors.
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(iii) Expenditure on special diet 15,000/-
(iv) Cost of nursing/attendant Nil
(v) Loss of earning capacity Nil.
(vi) Loss of income Nil
(vii) Any other loss which may require Nil
any special treatment or aid to the
injured for the rest of his life
12. Non-Pecuniary Loss: Nil
(I) Compensation for mental and 10000/-
physical shock
(ii) Pain and suffering 5000/-
(iii) Loss of amenities of life Nil
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil
hardships, disappointment,
frustration, mental stress,
dejectment and unhappiness in
future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed N/A and nature of disability as permanent or temporary
(ii) Loss of amenities or loss of N/A expectation of life span on account Master Saddam Vs. Manoj Kumar & Ors.
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of disability
(iii) Percentage of loss of earning N/A capacity in relation of disability
(iv) Loss of future income - (Income X N/A %Earning capacity X Multiplier)
14. TOTAL COMPENSATION Rs. 45,000/-
15. INTEREST AWARDED 9%
16. Interest amount up to the date of 7,087.50 (21 months) Vide award order dated 05.03.2018 interest was withheld with direction that petitioner would not be entitled to interest till he complied with modified direction and modified direction complied with by the petitioner on 05.10.2018, therefore no interest is being calculated for this period.
17. Total amount including interest 52,087.50 rounded off to Rs. 52,000/-
18. Award amount released In phased manner
19. Award amount kept in FDRs 50%
20. Mode of disbursement of the award 50% amount to the claimant (s) (Clause29)
21. Next date for compliance of the 15.12.2018 Master Saddam Vs. Manoj Kumar & Ors.
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award. (Clause 31) FORM - V AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 27.02.2013
2. Date of intimation of the accident by the 15.07.2016 investigating officer to the Claims Tribunal (Clause 2)
3. Date of intimation of the accident by the 15.07.2016 investigating officer to the insurance company. (Clause 2)
4. Date of filing of Report under section 173 Not mentioned Cr.P.C. before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident 15.07.2016 Information Report (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 15.07.2016 Company (Clause 11)
7. Date of Service of DAR on the 15.07.2016 complainant(s) Company (Clause 11)
8. Whether DAR was complete in all No. respects? (Clause 16)
9. If not, whether deficiencies in the DAR Yes. Master Saddam Vs. Manoj Kumar & Ors.
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removed later on?
10. Whether the police has verified the No. documents filed with DAR? (Clause 4)
11. Whether there was any delay or Yes, deficiency on the part of the Investigating delay in filing the Officer? If so, whether any DAR action/direction warranted?
12. Date of appointment of the Designated Not appointed Officer by the insurance Company.
(Clause20)
13. Name, address and contact number of the Not appointed Designated Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Not appointed Insurance Company submitted his report within 30 days of the DAR? (Clause 20)
15. Whether the insurance company admitted No Offer was filed the liability? If 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 No designated officer deficiency o the part of the Designated was appointed Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to No Offer was filed Master Saddam Vs. Manoj Kumar & Ors.
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the offer of the Insurance Company .
(Clause 24)
18. Date of the Award 22.10.2018
19. Whether the award was passed with the Parties contested the consent of the parties? (Clause 22) case
20. Whether the claimant(s) were directed to Yes.
open saving bank account(s) near their place of residence? (Clause 18)
21. Date of order by which claimant(s) were 16.01.2018 directed to open 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 05.10.2018 the passbook of 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 R/o C-311, JJ Claimant(s) (Clause 27) Colony, Bawana, Delhi.
24. Details of saving bank account(s) of the Bank of Baroda, claimant(s) and the address of the bank Branch Bawana, with IFSC Code (Clause 27) Delhi a/c Master Saddam Vs. Manoj Kumar & Ors.
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34958100002774 IFSC Code no.
BARB0BAWANA
25. Whether the claimant(s) saving bank Yes.
account(s) is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined Yes.
at the time of passing of the award.
AWARD
1. Police filed 'Detail Accident Report' (DAR) before this tribunal with respect of injuries suffered by Mr. Saddam in road traffic accident occurred on 27.02.2013 at about 2.30 p.m. in front of M.V. Hospital, Pooth Khurd, Delhi. Injured, driver & owner as well as Ld. Counsel for Ins. Co. were present on the day of filing the DAR. Copies of DAR was supplied to all the parties.
2. Brief facts of the accident are that on 27.02.2013 petitioner was coming to his home riding his bicycle and at about 2.30 pm when he reached in front of M.V. Hospital, Pooth Khurd, Delhi, suddenly a TATA-709 vehicle bearing registration no. DL1LG 7613 which was Master Saddam Vs. Manoj Kumar & Ors.
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being driven by its driver (respondent no. 1) at very high speed, rashly and negligently came and hit bicycle of injured. Due to such forceful impact, he fell down on road along with his bicycle and suffered multiple injuries. He was taken to M.V. Hospital, for treatment.
3. The claim of petitioners was not contested by the respondents no. 1 and 2. Respondent no. 3 filed its written statement. It has not disputed the fact that offending vehicle was insured with it on the date of accident, however it took the plea that driver / respondent no. 1 was not holding any valid and effective driving licence at the time of accident, and therefore insurance company is not liable to indemnify the insured / owner. All the other facts of accident have been denied on technical grounds.
4. From the pleadings of parties following issues were framed vide order dated 01.08.2016: -
Master Saddam Vs. Manoj Kumar & Ors.MACT no. 6585-16 9 /18
1. Whether petitioner suffered injuries in a vehicular accident occurred on 27.02.2013 at about 2.50 p.m. near Valmiki Hospital, Pooth Khurd, Delhi due to rash or negligent driving of vehicle no. DL-1LG-7613 by Sh. Manoj Kumar (respondent no.
1)? OPP.
2. Whether the petitioner is entitled to compensation if yes, what amount and from whom of respondents? OPP.
3. Relief.
5. In order to prove the claim, petitioner was examined as PW2. It is pertinent to mention that at the time of accident the injured was minor and was being represented through her mother, who also filed her affidavit, however during the pendency the injured attained the age of majority and hence he was orally examined as PW2 vide order dated 06.03.2017. Respondents no. 1 and 2 opted not to lead any evidence. Respondent no. 3 examined Mr. Amar Kumar Sharma as R3W1.
I have heard ld. counsels appearing on behalf of parties and gone Master Saddam Vs. Manoj Kumar & Ors.
MACT no. 6585-16 10 /18
through the record. My findings issue wise are as under:- ISSUE NO. 1
Whether petitioner suffered injuries in a vehicular accident occurred on 27.02.2013 at about 2.50 p.m. near Valmiki Hospital, Pooth Khurd, Delhi due to rash or negligent driving of vehicle no. DL-1LG-7613 by Sh. Manoj Kumar (respondent no.
1)? OPP.
6. The onus to prove the issue was upon the petitioners. To prove that he suffered injuries and such injuries were caused to him on account of rash and negligent driving by respondent no. 1, petitioner examined himself as PW2. In his examination in chief, he deposed the manner in which the accident had occurred. Nothing material has come on record to disbelieve testimony of PW2. PW2 has not at all been cross examined by respondents no. 1 and 2. Criminal case record filed on recored shows that respondent no. 1 was indicted by police for offences punishable under Section 279/338 IPC read with Master Saddam Vs. Manoj Kumar & Ors.
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Section 3/181 of M.V. Act. Respondent no. 1 did not approach to any higher authority or any forum against his such implication in this case. Apart from deposition of petitioner, the fact that petitioner suffered injuries in the accident is also supported from his medical record i.e. MLC etc. Considering all this, it stands proved that accident in question occurred on account of negligence on the part of respondent no. 1 and petitioner suffered injury on his person on account of rash and negligent driving by respondent no. 1. This issue is accordingly decided in favour of petitioner and against the respondents.
ISSUE NO. 2.
Whether the petitioner is entitled to compensation if yes, what amount and from whom of respondents? OPP.
7. Being injured, petitioner is natural eye witness of accident and well within his right to claim compensation from respondents. NOW COMING TO QUANTUM OF COMPENSATION Master Saddam Vs. Manoj Kumar & Ors.
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8. As per documents available on record, a compensation of Rs. 52,000/-which includes 21 months interest @ 9% per annum from is awarded to the petitioner, details of which are mentioned in the above proforma.
Now coming to the aspect as which of the respondents is liable to pay compensation to the petitioner.
9. It is not in dispute that offending vehicle was insured at the time of accident with respondent no. 3. It is also not disputed that petitioner suffered injuries in this accident. However, Ld. Counsel for respondent no. 3 has taken the plea that respondent no. 1 was not holding any driving at the time of accident. To prove such contention, respondent no. 3 has examined R3W1 Mr. Amar Kumar its Senior Executive. He has proved legal notice Ex. R3W1/2 sent to the respondents no. 1 and 2 to produce DL of respondent no. 1 as well as RC and fitness certificate of the offending vehicle, its postal Master Saddam Vs. Manoj Kumar & Ors.
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receipt as Ex. R3W1/3 to 5 and tracking report are Ex. R3W1/6 and
7. However, neither any reply has been filed nor the said documents have been produced to the respondent no. 3 nor placed on record. This witness has not at all been examined by any of the respondents no. 1 and 2. Further, no reply / written statement has been filed by respondent no. 1 nor he examined himself nor any driving licence has been filed on record Hence, it is proved on record that respondent no. 1 was not having any driving licence at the time of accident. Since, the driver/R1 and owner /R2 failed to produce any driving license an adverse inference is drawn against them. Hence, insurance company has been able to establish its statutory defence. However, being the insurer, responded no. 3 is primarily liable to indemnify the insured under section 149 (1) of the MV Act. Since it has been able to establish its statutory defence, it shall be at liberty to recover the compensation amount from the registered owner and driver jointly Master Saddam Vs. Manoj Kumar & Ors.
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and severally but after paying the compensation amount to the petitioner.
This issue is decided accordingly.
ISSUE NO. 3 (RELIFE)
10. Petition in hands is allowed. Respondent no. 3 is directed to pay Rs.
52,000/- to the petitioner failing which respondent no. 3 shall be liable to pay interest @ 9% on the amount of Rs. 45,000/- from 15.12.2018 apart from awarded amount of Rs. 52,000/-
11. Statement of petitioner about disbursement of amount of compensation was recorded. Further petitioner has got his bank account opened in terms of modified direction of Hon'ble High Court and filed photocopy of his passbook of such account. Considering circumstances of petitioner, it is directed that out of the total amount of compensation, 50% amount be kept in FDRs for a period of three years and remaining 50% amount be released to him Master Saddam Vs. Manoj Kumar & Ors.
MACT no. 6585-16 15 /18
through his saving bank account, details of which are mentioned in the above proforma, this amount will be withdrawn only by way of withdrawal slip and by no other mode or any digital mode i.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc.
12. 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: -
1. The fixed deposit be renewed automatically till the period prescribed by the Court.
2. The interest on the fixed deposit be paid monthly.
3. The monthly interest be credited automatically in the saving account of the claimant.
4. Original fixed deposit receipt be retained by the bank in safe custody. However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
5. The original fixed deposit receipt be handed over to the claimant at the end of the fixed deposit period.
6. Photo identity card shall be issued to the claimant and the Master Saddam Vs. Manoj Kumar & Ors.MACT no. 6585-16 16 /18
withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
7. No cheque book and debit / credit card shall be issued to the claimant without permission of the Court.
8. No loan, advance or premature withdrawal or premature encashment shall be allowed on the fixed deposit without permission of the Court.
9. The amount would be directly credited in the bank account of the petitioner, without any necessity of visiting her to court, where FDRs are kept.
10. The bank of the petitioner would make necessary endorsement on the passbook of the petitioner and in its own record as "MACT case" and amount to be disbursed only in terms of the order of the court.
11. Bank manager concerned to inform the court in writing prior to releasing of any amount to the petitioner, to the effect that compliance of the order of the Hon'ble High Court has been made with respect to disbursement. In no case, amount of award can be released without filing a compliance report in the court and the amount, which the respective petitioner Master Saddam Vs. Manoj Kumar & Ors.
MACT no. 6585-16 17 /18
would be withdrawing can only be allowed through withdrawal slip and by no other mode or any digital i.e. Debit card / Credit card /ATM/NEFT/RTGS/letter etc. Respondent no. 3 is directed to deposit entire amount of compensation with this tribunal within 30 days, with advance notice Digitally signed by to petitioner. SUKHVIR SUKHVIR SINGH SINGH MALHOTRA File be consigned to record room. MALHOTRA Date:
2018.10.22 17:08:34 +0530 ANNOUNCED IN THE OPEN (S.S. MALHOTRA) COURT ON 22.10.2018 PO, MACT-NORTH, ROHINI, DELHI Master Saddam Vs. Manoj Kumar & Ors.MACT no. 6585-16 18 /18