Delhi District Court
Sh. Simranjeet Singh vs Sh. Dhruv Behl (Driver) on 27 July, 2017
IN THE COURT OF SH. RAJEEV BANSAL
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT(SE-01), SAKET COURTS: NEW DELHI
Suit No. 4045/16
FIR No. 91/14
PS : Lodhi Colony
U/s 279/338 IPC
Sh. Simranjeet Singh
S/o Sh. Ram Dass Singh
R/o. H. No.22, Block A,
Palika Niwas, Lodhi Colony,
New Delhi-110003
...Claimant
Versus
1. Sh. Dhruv Behl (Driver)
S/o Sh. Rohit Behl
R/o. A-147, Phase-1, Ashok Vihar
New Delhi
...(Driver)
2. Sh. Rohit Behl
S/o. Sh. Satish Behl
R/o. A-147, Phase-1, Ashok Vihar
New Delhi
...(Owner)
3. Tata AIG General Insurance Co. Ltd.
Lotus Towers,
1st Floor, New Community
New Friends Colony,
New Delhi.
...(Insurer)
...Respondents
Date of DAR : 30.05.2014
Reserved on : 18.07.2017
Date of Decision : 26.07.2017
AWARD
1. Initially a Detailed Accident Report (DAR) was filed but Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 1/17 the injured preferred to file a separate claim petition under section 166 /140 of M. V. Act for compensation. When the claim petition came to be filed. DAR was attached to it.
2. It is stated in the clam petition filed by the injured through his father that on 16.03.2014, at about 16.45 hrs, the claimant was going on his motorcycle bearing No.DL-9SY-6612 from his house. When he reached near Habitat Centre red light, suddenly a Skoda Superb car bearing No.HR-26BJ-3761 driven by its driver in a rash and negligent manner came from back side and hit the claimant. Due to this, claimant fell down on the road and sustained injuries. It was stated that the claimant suffered bodily paralysis and for this reason, the claim petition was filed through father of the injured.
3. Notice of the petition was given to the respondents. In response to the petition, driver and owner have appeared and filed their written statement.
4. Insurance company/respondent no.3 filed their written statement and stated that the claimant is an employee under the ESI Act and received injuries during the course of employment as he was on duty when the accident occurred. Hence claimant is barred under Section 53 of the ESI Act from receiving or recovering compensation or damages under the MV Act in respect of an employment injury. However, it has been admitted that the vehicle no. HR-26BJ-3761 is insured with Tata AIG General Insurance Company Ltd. vide policy No.010074220300 for the period from 30.03.2013 to 29.03.2014.
Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 2/175. From the pleadings of parties following issues were framed on 20.04.2015:-
1. Whether the petitioner Simranjeet Singh suffered grievous injuries in the accident dated 16.03.2014 on account of rash and negligent driving by respondent no.1 involving vehicle bearing registration No. HR- 26BJ-3761? OPP
2. Whether the injuries are employment injuries and whether the petition is barred under the provision of Section 53 of the ESI Act? OPR3
3. Whether the petitioner is entitled to compensation? if so, as to what extent and from whom?
4. Relief.
6. The claimant was also examined for his disability. He was found to have 90% disability to his whole body (post head injury sequel).
7. Since the injured himself was not in a condition to depose to substantiate the case of the claimant, the father of claimant has entered into the witness box as PW1 and filed his evidence by way of affidavit as Ex. PW1/A and stated similar facts as were already stated in the claim petition. He proved original accident information report no.M-82/14 along with police report under section 173 Cr. P. C. & Seizure memos i.e. RC, mechanical inspection report of offending vehicle and motorcycle involved in accident, arrest memo of driver and MLC of injured as Ex.PW1/A, Medical record of Trauma Centre AIIMS as Ex. PW1/B, Medical records of BLK Radiant Life Care Pvt. Ltd. as Ex. PW1/C, medical records of Max Health Care Super Specialty Hospital as Ex. PW1/D, medical bills on account of medicines, equipment and of physiotherapist attended the injured patient as Ex. PW1/E, Original medical bills on account Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 3/17 of medicines, equipment and of physiotherapist who attended the injured patient as Ex.PW1/F, certificate of school showing date of birth and B.Com course and regarding networking engineering from Jetking of the injured and I-card, offer letter and pay slip issued by Kommlabs Designer Pvt. Ltd. as Ex. PW1/G, original disability certificate of injured showing 90% permanent disability of whole body issued by Pt. Madan Mohan Malviya Hospital as Ex. PW1/H.
8. In cross examination, the petitioner denied that his son was not wearing a helmet at the time of accident. He denied that the accident took place due to his son negligence. He also denied other suggestions contrary to claimant case.
9. PW2 Sh. Surender Singh is the Account Executive of KOMMLABS Dezign Pvt. Ltd. where the deceased was employed. He deposed that the claimant Simranjeet Singh was working as a Support Engineer since the year 2013. He proved his appointment letter and salary slips for the month of February,2014 as Ex.PW2/A.
10. Claimant also examined Sh. Naresh Kumar Dahatia, Social Security Officer, ESI Noida as PW3. Who deposed that injured Simranjeet Singh is registered with ESI and he has not aware or received any accident report from the employer or application for claim from the claimant. He further deposed that no relief has been given to the claimant from ESI.
11. No other witness was examined on behalf of the claimant.
Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 4/1712. On behalf of insurance company, Sh. Raghuvansh B. Mathur investigator was examined as Ex.R3W1. He proved investigation report as Ex. R3W1/A.
13. Arguments were addressed by Sh. V. P. S. Raghav, learned counsel for the claimant and Ms. Vandana Kahlon, learned counsel for the insurance company.
14. It has been vehemently argued by counsel for insurance company that the injured Simranjeet Singh was on duty on the date of accident which was a Sunday as is clear from the attendance chart Mark PW2/D1 and he met with the accident while going back to his home from duty and as such the injury being 'arising out of and during the course of employment', the claim for compensation would lie only before the ESI Court and the present claim petition filed under Section 166 and 140 of the Motor Vehicles Act would be hit by Section 53 of ESI Act. It is stated that there is a complete bar in seeking compensation if the injured was a beneficiary of ESI and he can claim compensation only from the ESI Court and not from any other Court. Reliance has been placed on the judgment passed by the Hon'ble Supreme Court in the case of Western India Plywood . Ltd. Vs. P. Ashokan 1997(7) SC 638 ; Regional Director ESI Vs. Francis De Costa 1993 Supp (4) SCC 100 ; National Insurance Company Vs. Hamida Khatoon 2009 (3) TAC 25 SC and Dhropadabai Vs. Tecnocraft Toolings 2015 ACJ 1751 SC.
15. On the other hand, Ld. Counsel for petitioner argued that Mark PW2/D1 was not proved by the insurance company by Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 5/17 examining the author of the said document and hence, the said document can not be read in evidence. He further argued that the injured was not on duty on the day of accident i.e. 16.03.2014 and as such the injury sustained by him can not be said to be 'arising out of and during the course of employment'. He further argued that the bar created by Section 53 of ESI Act does not apply to the proceedings under the Motor Vehicles Act.
Issue No.2:-
16. This issue being legal in nature is being decided first.
17. I have heard both the sides on this legal issue. As noted above the accident had taken place on 16.03.2014 at 04.45 pm when the injured was riding on his motorcycle and at that time the insured offending vehicle Skoda car hit him and caused injuries to him. There is no dispute that the accident had not taken place in the premises of the employer. The application for seeking compensation is not against the employer of the injured Simranjeet Singh but is against the driver and owner of the offending vehicle and the insurance company with whom the offending vehicle was insured. The only fact that the injured was on duty on the date of accident and while returning back to home from his work place he sustained the accidental injuries, would not make the injury suffered by him to be one 'arising out of and during the course of employment' as the accident which took place had no relation with the employment of the injured except that, at the most, at the time of accident he was returning back from his place of work which is at Noida.
The fact remains that the accident took place at Lodhi Road and Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 6/17 there would be a distance of more than 40 Kms. between both these places. In Francis De Costa (supra) it was held that an accident which took place 1 km away from the factory when the injured was on his way to factory, would not to be one 'arising out of and in the course of employment'. Taking a cue, from the aforesaid judgment it is safe to hold that the injuries suffered by the injured did not 'arise out of and in the course of employment'
18. Now comes the question of applicability of Section 53 of ESI Act. The said Section reads as under:-
Bar against receiving or recovery of compensation or damages under any other law:-
An insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workman's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employees under this Act.
19. As can be seen from the language employed by the legislature in the above provision, the bar is against recovery of compensation with respect to an employment injury. ESI Act was brought on the statute books in the year 1948 whereas the Motor Vehicles Act was passed in the year 1988 and had it been the intention of the legislature to exclude the claim application arising out of motor accidents even in cases of employment injuries, there would have been a specific provision in the 1988 Act and the very fact that no such prohibition exist in the 1988 Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 7/17 Act, which is a subsequent Act, the said bar as created by 1948 Act can not be read to exist for maintainability of claim petition under the 1988 Act. It has been held in the preceding para that the injury sustained by the claimant was not the one which arose 'out of and in the course of the employment', and in my considered opinion, the bar set in place by Section 53 of ESI Act would not be applicable in the facts and circumstances of this case. In fact in the case of Hamida Khatoon(supra) an objection regarding bar of Section 53 was raised before the Hon'ble Supreme Court regarding a claim petition filed under Motor Vehicles Act before the MACT for award of compensation due to fatal injuries, the Hon'ble Supreme Court held that the bar is against receiving or recovering any compensation or damages under the Workman Compensation Act or any other law for the time being in course or otherwise, in respect of an employment injury. In fact the Hon'ble Supreme Court had finally directed to work out the entitlement by the concerned MACT.
20. The judgment in Western India Plywood (supra) would not be applicable to the facts of the present case as the said case was for compensation claim due to an accident by a machine inside the factory. Similarly the judgment in the case of Dhropadabai (supra) would also not be applicable as in the said case a claim for compensation was filed before the Labour Court for a death caused to a worker after he suffered chest pain at his work place. Since none of these judgments relate to claims for compensation due to Motor Accident, the same would not apply to the facts of the present case, being based on different set of facts.
Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 8/1721. It is also not a case where the injured has claimed compensation at two places. PW3 a witness from ESIC stated that neither any claim application was received from the claimant nor any relied was grated to him by ESI, Corporation.
22. In view of the above discussion, it is held that the bar created by Section 53 of ESI Act will not apply to the present compensation application.
Issue No.1
23. It is well settled law that where petition under section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality 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. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Negligence in a compensation case before claims tribunal is to be proved by preponderance of probability and the test is not as strict as in a criminal case.
24. The Police after investigation has filed charge sheet against respondent no.1 under section 279/338 of IPC and the IO has filed Detailed Accident Report before this Tribunal.
25. In the criminal trial the respondent Dhruv Behal had paid a sum of Rs.32 Lacs at the time of quashing of the FIR vide CRI Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 9/17 MC No. 1947/2016 and the Hon'ble High Court had observed in the order dated 10.08.2016 that the said amount of Rs.32 Lacs shall be over and above the amount payable to the injured in the proceedings carried out in this Tribunal for compensation.
26. The above is sufficient to conclude that preponderance of probability is made out showing negligence of respondent no.1 in causing the accident.
27. Issue No.1 is accordingly, decided in favour of the petitioner and against the respondents.
Compensation
28. The injured had remained hospitalized after the accident in Max Hospital and BL Kapoor Hospital and the expenditure for this hospitalization was borne by NDMC where, the father of the injured was employed from where he had sought the reimbursement. It has been stated by counsel for the injured on instruction from the father of the injured that he has not claimed and got any reimbursement of the amount claimed by him in these proceedings pending before this Tribunal. He was directed to file an affidavit to that extent vide order dated 02.05.2017 and the same was filed by Sh. Ram Dass Singh father of injured on 18.05.2017.
29. Ld. Counsel for insurance company argued that bills for the articles such as sewing machine, kettle, tissue papers, cosmetics etc. have been furnished which are not connected with the injury. It is seen that the injured is paralyzed and therefore, the above said articles become necessary for an Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 10/17 injured. As such, bills submitted for such articles shall be payable.
Sl. Pecuniary loss : - Quantum
no.
1. (I) Expenditure on treatment : Bills were Rs.16,36,009/-
filed in three installments.
As per Ex.PW1/E, Ex.PW1/F Ex.PW1/I there are medical bills worth Rs.1,65,887/- Rs.11,45,391/-, Rs.3,24,731/- respectively. (Since claimant is insured under ESI Act but medical bills have not reimbursed from ESI as it is proved by PW3).
(ii) Expenditure on Conveyance : Nil as amount
has already
been awarded in
the head
expenditure on
treatment
where bills are
on record.
(iii) Expenditure on special diet : There is Rs.25,000/- no prescription for special diet. The nature of injuries are '90% permanent physical impairment in relation to his whole body (post head injury sequel)'. By guess work, compensation can be awarded for special diet.
(iv) Cost of nursing / attendant : Even in Nil as amount
the absence of documentary proof, has already
compensation for attendant's charges is to been awarded in
be given even if services were rendered by the head
family members. expenditure on
treatment
where bills are
on record.
(v) Loss of income : The PW2 Account Rs.47,400/- Executive of claimant employer has filed copy of Offer Letter dated 02.09.2013 and the pay slip for the month of February, 2014 on the record. As per this, the salary of the Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 11/17 claimant is Rs.7,900 per month. Considering the nature of injuries {90%permanent physical impairment in relation to his whole body (post head injury sequel)}, it can be safely assumed that the claimant would have remained confined to bed at least for a period of 6 months and is therefore entitled to a compensation of Rs.47,400/- towards loss of income due to accidental injuries.
(vi) Cost of artificial limb (if applicable) : Not Applicable
(vii) Any other loss / expenditure : Not applicable
2. Non-Pecuniary Loss :
(I) Compensation of mental and physical Rs.50,000/-
shock : As the claimant has suffered '90% permanent physical impairment in relation to his whole body (post head injury sequel)', he would have undergone mental and physical shock.
(ii) Pain and suffering : Compensation for Rs. 50,000/- pain and suffering is to be awarded keeping in mind the nature of injuries suffered by the claimant.
(iii) Loss of amenities of life : The claimant Rs.50,000/- has suffered 90% permanent physical impairment in relation to his whole body (post head injury sequel). This injury will definitely hamper his daily activities and enjoyment in every walk of life.
(iv) Disfiguration : The claimant has Rs.50,000/-
suffered 90% permanent physical impairment in relation to his whole body (post head injury sequel).
(v) Loss of marriage prospects : The Rs.50,000/- petitioner has suffered 90% permanent physical impairment in relation to his whole body (post head injury sequel). Due to accident his left side body has suffered paralysis and he is unable to move and become handicapped. The injuries would affect his marriage prospectus.
(vi) Loss of earnings, inconvenience, Already covered Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 12/17 hardships, disappointment, frustration, above mental stress, dejectment and unhappiness in future life etc.
3. Disability resulting in loss of earning capacity (I) Percentage of disability assessed and The claimant has nature of disability as permanent or suffered 90% temporary permanent physical impairment in relation to his whole body (post head injury sequel)
(ii) Loss of amenities or loss of Rs.50,000/- expectation of life span on account of disability : The claimant has suffered 90% permanent physical impairment in relation to his whole body (post head injury sequel).
(iii) Percentage of loss of earning 100% x of Rs. capacity in relation to disability: (the 7,900/- per claimant has suffered 90% permanent month. physical impairment in relation to his whole body (post head injury sequel). Having regard to the nature of injury, as the claimant has suffered bodily paralysis this is to be taken as 100% for whole body. As the salary of claimant on date of accident were Rs.7,900/- per month.
(iv) Loss of future Income: The claimant Rs.7900/- + has suffered 90% permanent physical 3950/- = 11850/- impairment in relation to his whole body x12x18 = (post head injury sequel). The income of Rs.25,59,600/- claimant on the date of accident were Rs.7,900/-, petitioner being aged around 24 years, he is also entitled for 50% increase in income towards future prospect, the loss would be Rs. 7,900/- per month + 3950/-.
Total Compensation Rs.44,68,009/-
(rounded off to
Rs.44,68,000/-)
Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 13/17
Interest 9% p.a. from the
date of filing of
DAR which is
30.05.2014 till
realization
(except interest
w.e.f.
05.07.2016 to
18.10.2016
30. There is no statutory defence available with the insurance company. Therefore, the compensation would be payable by respondent no.3 within 30 days with interest as noted above.
Relief:-
31. Accordingly, a compensation of Rs.44,68,000/- is awarded to claimants with interest @9% per annum (except interest w.e.f. 05.07.2016 to 18.10.2016 from the date of filing of DAR i.e. 30.05.2014 till realization.
32. Notice of deposit shall be given by the insurance company to the claimants as well as to the counsel for claimants. The insurance company will also give intimation of deposit of compensation to the Nazir of this court along with calculations of upto date interest.
33. Insurance company/respondent no.3 is further directed to directly deposit the cheques with State Bank of India, Saket Court Branch within 30 days from today and in case of default, penal interest @ 12% per annum shall be payable for the period of delay. The bank shall be obliged to open a saving account in the name of claimant, upon completion of necessary formalities by the claimant.
Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 14/1734. The insurance company will also give intimation of deposit of compensation to the Nazir of this court along with calculations of upto date interest.
35. The father of claimant had requested that the compensation be released immediately as claimant has suffered financial losses due to accidental injuries suffered by claimant. Further, the injured and his father are educated, therefore, the compensation shall be released immediately as there is no apprehension of compensation of this claimant to be exploited or dissipated.
36. The particulars of form IV of the modified Claims Tribunal agreed procedure are as under:-
1. Date of the accident 16.03.2014
2. Date of intimation of the accident by the 18.03.2014 Investigating Officer to the Claims Tribunal. (Clause 2)
3. Date of intimation of the accident by the Not available as the Investigation Officer to the Insurance reply of insurance Company. (Clause 2) company is not in the Form III of MCTAP.
4. Date of filing of Report under Section 173 Not available Cr.P.C. before the Metropolitan Magistrate. (Clause 10)
5. Date of filing of Detailed Accident 30.05.2014 Information Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the Insurance 30.05.2014 Company. (Clause 11)
7. Date of service of DAR on the claimant(s). 30.05.2014 (Clause 11)
8. Whether DAR was complete in all respects? Yes Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 15/17 (Clause 16)
9. If not, state deficiencies in the DAR Not applicable
10. Whether the police has verified the Yes documents filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency Yes. The DAR was on the part of the Investigating Officer? If not filed within 30 so, whether any action / direction days, however, warranted. considering that the filing of DAR was extended from time to time on the application of IO, no action or direction is warranted.
12. Date of appointment of the Designated Not available as the Officer by the Insurance Company. reply of insurance (Clause19) company is not in the Form III of MCTAP.
13. Name, address and contact number of the ----- Do----
Designated Officer of the Insurance Company. (Clause 19)
14. Whether the Designated Officer of the No. Insurance Company submitted his report within 30 days of the DAR? (Clause 21)
15. Whether the Insurance Company admitted Yes. the liability?, if so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law (Clause 92).
16. Whether, there was any delay or deficiency The reply of on the part of the Designated Officer of the insurance company Insurance Company? If so, whether any is not in the Form action / direction warranted? III of MCTAP and legal offer was not given in 30 days.
17. Date of response of the claimants to the Not applicable offer of the Insurance Company. (Clause 23)
18. Date of award. 26.07.2017 Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 16/17
19. Whether the award was passed with the No. consent of the parties? (Clause 22)
20. Whether the claimants examined at the Yes. time of passing of the award to ascertain his / their financial condition? (Clause 26)
21. Whether the photographs, specimen Dispensed with as signatures, proof of residence and compensation is particulars of bank account of the injured / not to be retained legal hairs of the deceased taken at the in FDRs. time of passing of the award? (Clause 96)
22. Mode of disbursement of the award amount By release of to the claimant (Clause 28) next date of compensation compliance of the award. (Clause 30) immediately. The date of compliance is fixed.
36. Copy of this award be given to the parties free of cost. The copy of award be sent to the DLSA and Ld. Metropolitan Magistrate.
37. List on 27.10.2017 for compliance.
Announced in open Court (RAJEEV BANSAL) on 27th July 2017. PO-MACT-01 (South-East) Saket Court/ New Delhi.
Suit No.4045/16 Sh. Simranjeet Singh Vs. Sh. Dhruv & Ors. Page No. 17/17