Delhi District Court
R K Sanyal vs . Ugonna Ifeanyi & Ors. on 6 June, 2018
R K Sanyal vs. Ugonna Ifeanyi & Ors.
IN THE COURT OF SHRI SAMEER BAJPAI : PRESIDING OFFICER :
MACT : SOUTH DISTT. : SAKET COURTS : NEW DELHI
Petition No. : 75938/16
R K Sanyal
S/o Sh. B K Sanyal
R/o H. No. 7/55, Ramesh Nagar,
Delhi
...... Petitioner
Versus
1. Ugonna Ifeanyi
S/o Ejjobi Ifeanyi
R/o Vikaspuri,
Mahavir Nagar,
New Delhi (Driver)
2. Karan Dang
S/o Sh. Satish Kumar Dang
R/o H. No. T74B/1, Khirki Ext.
Malviya Nagar, New Delhi (Owner)
3. New India Assurance Co. Ltd.
New Delhi (Insurer)
......Respondents
Date of Institution : 02.08.2016
Date of reserving of judgment/order : 28.05.2018
Date of pronouncement : 06.06.2018
J U D G M E N T :
1. By this judgment I shall dispose of the Detailed Accident Report (DAR) filed by SHO police station Hauz Khas for the injuries sustained by Petition No. : 75938/16 Page No. 1 of 16 R K Sanyal vs. Ugonna Ifeanyi & Ors.
R K Sanyal in a road accident on 28.11.2015 at 11.00 PM in front of IIT Police Colony, outer Ring Road, New Delhi due to rash and negligent driving of vehicle bearing no. DL 3C AG 6713 by the respondent no.1, owned by respondent no.2 and insured with respondent no.3.
2. No written statement was filed by the driver and owner i.e. respondent no.1 and 2. They were proceeded exparte vide order dated 13.04.2017.
3. In its reply respondent no.3/insurance company has stated that the Investigating Officer has filed a charge sheet u/s 279/338 IPC and u/s 3/181 & 5/180 of Motor Vehicles Act and 14 Foreigner Act, as the driver was a foreigner and his passport and visa have expired. It is further stated that the driver was not holding driving licence at the time of accident, thus the insured has violated the terms and conditions of the insurance policy. It is further stated that the accident had not taken place due to rash and negligent driving by the respondent no.1 rather it was the petitioner who was driving his Zen car bearing no. UP 80 AJ 7793 in negligent manner and or it is a case of contributory negligence on the part of injured. It is however, admitted that the offending vehicle was insured with it vide policy no. 31090431140100003911 for the period from 20.02.15 to 19.02.16.
4. For just adjudication of the case following issues were framed vide order dated 13.04.2017 :
Petition No. : 75938/16 Page No. 2 of 16R K Sanyal vs. Ugonna Ifeanyi & Ors.
1. Whether R K Sanyal sustained injuries in a road accident on 28.11.15 at 11.00 PM in front of IIT Police Colony, outer Ring Road, New Delhi due to rash and negligent driving of vehicle bearing no. DL 3C AG 6713 by the respondent no.1, owned by respondent no.2 and insured with respondent no.3?
2. To what amount of compensation, the petitioner is entitled and from whom?
3. Relief.
5. Petitioner examined himself as PW1. He tendered in evidence his affidavit Ex.PW1/A and relied upon the documents Ex.PW1/1 to Ex.PW1/8 (colly.) and mark A to B.
6. Sh. Devanand Sharma, Billing Clerk, Indraprastha Apollo Hospital was examined as PW2. He has brought the estimated bill no. 10591103 dated 22.04.2016 Ex.PW2/X. He stated that the hospital has issued the estimated bill to the petitioner. It is for the general ward category. He further stated that in the estimate Dr. Raj Gopalan Krishnan and his team is consulting doctor.
7. Respondent no.3 examined Sh. Vikas Kumar, its Administrative Officer as R3W1. He has tendered in evidence his affidavit Ex.R3W1/A and relied upon the documents Ex.R3W1/1 to Ex.R3W1/5.
I S S U E No. 18. Needless to say that for making someone entitled U/s 166 of the Motor Vehicle Act, negligence of the driver of the offending vehicle needs to Petition No. : 75938/16 Page No. 3 of 16 R K Sanyal vs. Ugonna Ifeanyi & Ors.
be proved and to prove the same the Tribunal need not go into the technicalities 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. It is an admitted legal position that the negligence on part of the driver with respect to use of the vehicle needs to be established and the same is to be established on the principle of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III (2015) ACC 435 Delhi.
PW1 has stated that on the unfortunate day of 28.11.2015 at about 11.00 PM he was driving his car bearing no. UP 80 AJ 7793 and coming to Delhi from Agra U.P. When he reached in front of IIT police colony, outer Ring Road, IIT Flyover starting point towards Vasant Vihar, New Delhi, then all of a sudden a car bearing no. DL 3C AG 6713 being driven by respondent no.1 in a rash and negligent manner came from behind and hit his car. Due to the impact, he sustained grievous injuries. He was taken to JPN Apex Trauma Centre, AIIMS, New Delhi. He further stated that the offending vehicle was being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3. During crossexamination he denied the suggestion that he was driving his car in a rash and negligent manner and caused the accident. In the present case, the Investigating Officer alongwith the DAR has filed FIR, charge sheet, site plan, mechanical inspection report etc. Perusal of FIR shows that the case was registered on the statement of Ms. Kalpana Sanyal W/o Sh. R K Sanyal, who was accompanying the injured at the time of accident.
Petition No. : 75938/16 Page No. 4 of 16R K Sanyal vs. Ugonna Ifeanyi & Ors.
She has stated the same facts to the police as deposed by PW1 in his testimony. The car of the injured was hit by the respondent no.1 from behind. Hitting from behind perse amounts to negligence. Site plan also corroborates the testimony of PW1. Respondents no.1 and 2 have not appeared to crossexamine PW1. Even counsel for respondent no.3 has not crossexamined the petitioner on the aspect of rash and negligent driving by the respondent no.1. As per the mechanical Inspection report, there were fresh damages on the rear part of the car of the injured and fresh damages on the front part of the vehicle of the respondent no.1. Charge sheet has been filed against the respondent no.1. In view of the above discussion, it is established on record that R K Sanyal sustained injuries in a road accident which took place on 28.11.2015 at 11.00 PM due to rash and negligent driving of vehicle bearing no. DL 3C AG 6713 by the respondent no.1. Documents filed on record show that the vehicle was owned by respondent no.2 and it was insured with respondent no.3.
I S S U E No. 29. The petitioner has claimed compensation in respect of the injuries sustained by him. In a road accident a person is entitled to compensation for the pecuniary and nonpecuniary damages.
Let me assess the compensation which the claimant is entitled for under different heads MEDICAL EXPENSES :
10. In the present case the injured has filed medical bills of Rs. 43,321/.
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During crossexamination he stated that the bills have not been reimbursed to him from any source. Therefore, I award Rs.43,400/ to the injured towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
11. As per the discharge summary, the injured was diagnosed with Dysphasia due to Extrisic Oesophageal Compression due to Haematoma. He remained hospitalised from 29.11.2015 to 03.12.2015. He has suffered 20% permanent physical impairment in relation to his Spine. Looking into the injuries and disability of the petitioner, I award Rs.1,00,000/ to the petitioner towards pain and sufferings and enjoyment of life.
SPECIAL DIET, CONVEYANCE AND ATTENDANT CHARGES :
12. The injuries on the person of the petitioner were such that he must have been advised special diet for his early recovery. The medical record shows that he had visited the hospital as an OPD patient. He must have taken help of an attendant for his daily routine. So, looking into all the facts, I award Rs. 10,000/ to the petitioner towards special diet and Rs. 10,000/ towards conveyance and Rs. 15,000/ towards attendant charges. Therefore, the total award under this head comes to Rs. 35,000/.
LOSS OF LEAVES :
13. The petitioner has stated that due to the injuries sustained in the accident he could not do his duty for about four months. During cross Petition No. : 75938/16 Page No. 6 of 16 R K Sanyal vs. Ugonna Ifeanyi & Ors.
examination he stated that he remained on medical leave from 28.11.2015 to 29.02.16. He has also filed his leave certificate and fitness certificate Ex.PW1/3 (colly.) showing that he has remained on leave for a period of 90 days i.e. from 28.11.15 to 29.02.16. As per the salary slip his gross salary was Rs. 1,33,061/ which includes Rs.1,400/ as transport allowance which is to be deducted for calculating the amount of loss of leaves. After deduction, the net salary of the injured comes to Rs.1,31,661/. So, the amount towards loss of leaves comes to Rs.3,94,983/ (1,31,661 / 30 x 90) which is rounded off to Rs.3,95,000/. I therefore, award Rs. 3,95,000/ to the injured towards loss of leaves.
FUTURE LOSS OF INCOME :
14. The petitioner has suffered 20% permanent physical impairment in relation to his spine. The petitioner has stated that he was 56 years of age at the time of accident and he was working as Deputy Manager with BSNL. The petitioner has suffered disability in a very important part of the body i.e. Spine which helps in movement of the entire body.
The petitioner is a middle aged man of 56 years of age. Due to this disability he would definitely face difficulties in his working and movements, but the question is whether the petitioner suffered any loss of income. In his affidavit in evidence, the petitioner has nowhere stated that due to the accident he had to leave the job or his salary was decreased. He has only stated that he could not do his duty for about 4 months. As such, as far as the work which the petitioner was going with BSNL, to my mind he did not suffer any loss of income and Petition No. : 75938/16 Page No. 7 of 16 R K Sanyal vs. Ugonna Ifeanyi & Ors.
not entitled for any compensation towards this head.
LOSS OF AMENITIES :
15. Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his daily life to pursue his talents, recreation interest, hobbies and evocations. The injuries would also have an affect on his social life. I therefore, award Rs. 1,00,000/ to the petitioner towards loss of amenities.
COMPENSATION FOR FUTURE TREATMENT :
16. PW1 has stated that he was treated at Apollo Hospital where the doctors of the said hospital have advised for surgery in backbone, estimate of which would be Rs. 9,33,233/ plus other misc. charges.
During crossexamination he stated that if he undergo surgery, his department would pay him Rs. 3,50,000/. PW2 has brought the estimated bill no. 10591103 dated 22.04.16 Ex.PW2/X which is for Rs.9,33,233.33. It is to be noted that the petitioner was working in MTNL and must be an employee covered under CGHS. His medical bills including the bills of surgery should be reimbursed by his department. It is ordered that the petitioner first claim his bills for surgery with his department and if any amount of bills is left or not reimbursed by the department, the same would be given by the insurance company. After getting the surgery done and claiming his bills with his department whatever bills are left, the petitioner will put them to the Tribunal and the insurance company shall pay the amount directly to the Hospital.
Petition No. : 75938/16 Page No. 8 of 16R K Sanyal vs. Ugonna Ifeanyi & Ors.
17. The total compensation in favour of petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 43,400/
PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 1,00,000/
SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 35,000/
LOSS OF LEAVES : Rs. 3,95,000/
LOSS OF AMENITIES : Rs. 1,00,000/
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TOTAL : Rs. 6,73,400/
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L I A B I L I T Y
18. As the offending vehicle was being driven by respondent no. 1, primary liability to compensate the petitioner remains with respondent no. 1. Since the vehicle was owned by respondent no.2, so, he is vicariously liable to compensate the petitioner. It is an admitted position on record that the vehicle was insured with respondent no.3, therefore, respondent no.3 is contractually liable to compensate the petitioner.
19. In order to exonerate the insurance company from its liability, ld.
counsel for the insurance company has stated that the respondent no.1 was driving the offending vehicle without a licence. He has relied upon the testimony of R3W1 Sh. Vikas Kumar.
20. R3W1 has stated that the vehicle bearing no. DL 3C AG 6713 was insured with respondent no.3 vide policy bearing no. 31090431140100003911 for the period from 20.02.15 to 19.02.16. He has placed on record the original policy Ex.R3W1/1. He further stated that the driver of the offending vehicle Ugonna Ifeanyi was not holding Petition No. : 75938/16 Page No. 9 of 16 R K Sanyal vs. Ugonna Ifeanyi & Ors.
licence at the time of accident and was charged u/s 3/181 and 5/180 of M.V. Act by the I.O. He has relied upon the charge sheet Ex.R3W1/2 (colly.). He further stated that their counsel has issued notice dated 21.08.2017 u/o 12 Rule 8 CPC to the insured/driver to provide original policy and driving licence validly covering the period of accident. He has proved the said notice Ex.R3W1/3. This witness was not cross examined.
21. I have perused DAR. The Investigating Officer has added section 3/181 of Motor Vehicles Act. As per the terms and conditions of the insurance policy, 'any person including the insured provided that a person driving holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence'. In the present case the respondent no.1 was not holding a valid and effective driving licence at the time of accident, therefore, the insured has breached the terms and conditions of the insurance policy. So, it is ordered that the respondent no.3 shall pay the awarded amount to the petitioner at first instance and shall have right to recover the same from the respondent no.1 and 2.
22. Issue No. 2 is decided accordingly.
R E L I E F
23. In view of my findings, I award Rs. Rs. 6,73,400/ (Rs. Six Lakh Seventy Three Thousand Four Hundred only) to the petitioner as compensation alongwith interest @9% per annum from the date of Petition No. : 75938/16 Page No. 10 of 16 R K Sanyal vs. Ugonna Ifeanyi & Ors.
filing the DAR till its realisation.
Petitioner was examined by the Tribunal on 11.12.2017 in terms of order dated 16.12.2016 passed by the Hon'ble High Court in FAO 842/2003 titled as Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors.
Petitioner has stated that he has spent huge amount on his treatment. He has further stated that he is well educated person and working as Assistant General Manager in BSNL. He further stated that if the award is passed in his favour, he does not want any amount to be kept in the form of fixed deposit and he wants that the whole amount may be released to him.
As at the time of assessment of his financial needs the petitioner submitted that was working as Assistant General Manager in BSNL and doesn't require any money to be kept in the form of FDR, the whole of the amount be released to him.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
24. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
25. As per orders of Hon'ble High Court in case titled "New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as "Union of India V/s Petition No. : 75938/16 Page No. 11 of 16 R K Sanyal vs. Ugonna Ifeanyi & Ors.
Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimant.
26. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, respondent no.3 is directed to deposit the awarded amount in favour of the petitioner with State Bank of India, Saket Courts Complex Branch, against account of petitioner.
within a period of 30 days from today, failing which respondent no.3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
27. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :
1. The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of their saving bank account with State Bank of India, Saket Court Branch, New Delhi.
2. No cheque book be issued to petitioner/claimant without the permission of this Court.
3. The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioner/claimant alongwith the photocopy of the FDR's .
4. The original fixed deposit receipts shall be handed over to petitioner/claimant at the end of the fixed deposit period.
5. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
6. Half yearly statement of account be filed by the Bank in this Court.
Petition No. : 75938/16 Page No. 12 of 16R K Sanyal vs. Ugonna Ifeanyi & Ors.
7. On the request of petitioner/claimant, the Bank shall transfer the amount to the bank in which the petitioner has his personal accunt and given the details thereof to the Tribunal and Manager, SBI Saket Court branch.
8. Petitioner/claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
9. The bank is also directed to get the nomination form filled by the claimant at the time of preparation of FDRs.
10. The bank is also directed to keep the money received from the respondents in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
11. The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioner from this branch, unless the petitioner makes compliance of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 4112541127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. Whenever the petitioner makes such compliance an order to that effect will be given to him by the Tribunal and then the Bank Manager of the said branch shall release the amount directly in the personal savings account of the petitioner through RTGS or NEFT or any other electronic mode only.
DIRECTIONS FOR THE RESPONDENT No. 328. The Respondent no.3 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
29. The Respondent no.3 is directed to furnish a copy of this award alongwith the cheque of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of Petition No. : 75938/16 Page No. 13 of 16 R K Sanyal vs. Ugonna Ifeanyi & Ors.
the claimant/petitioner in whose favour the award has been passed.
30. The Respondent no.3 shall intimate the claimant/petitioner about its having deposited the cheque in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
31. Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after his having received the notice of the deposit of awarded amount by the respondent no.3.
32. Copy of this Award / Judgment be given to the parties for compliance.
33. The case is now fixed for compliance by the respondent no.3 for 06.07.2018.
34. FormIV of the Modified Claims Tribunal Agreed Procedure to be mentioned in the Award is as under :
1 Date of the accident 28.11.2015 2 Date of intimation of the accident by the 01.12.2015 Investigating Officer to the Claims Tribunal 3 Date of intimation of the accident by the Not available Investigating Officer to the insurance company 4 Date of filing of Report u/s 173 Cr.P.C. Not available before the Metropolitan Magistrate Petition No. : 75938/16 Page No. 14 of 16 R K Sanyal vs. Ugonna Ifeanyi & Ors.
5 Date of filing the Detailed Accident Report 02.08.2016 (DAR) by the Investigating Officer before Claims Tribunal 6 Date of service of DAR on the insurance 02.08.2016 company 7 Date of service of DAR on the claimant 02.08.2016 8 Whether DAR was complete in all Yes respect?
9 If not, state deficiencies in the DAR N.A. 10 Whether police has verified the documents Yes filed with DAR 11 Whether there was any delay or deficiency No on the part of the Investigating Officer? If so, whether any action/direction warranted?
12 Date of appointment of the Designated N.A. Officer by the insurance company.
13 Name, address and contact number of the N.A. designated officer of the insurance company.
14 Whether the designated officer of the No insurance company submitted his report within 30 days of the DAR?
15 Whether the insurance company admitted No the liability? If so, whether the designated officer of the insurance company fairly computed the compensation in accordance with law.
16 Whether there was any delay or deficiency No on the part of the designated officer of the insurance company? If so, whether any action/direction warranted 17 Date of response of the claimant(s) to the No offer was given by offer of the insurance company. the insurance company.Petition No. : 75938/16 Page No. 15 of 16
R K Sanyal vs. Ugonna Ifeanyi & Ors.
18 Date of the award 06.06.2018 19 Whether the award was passed with the No consent of the parties?
20 Whether the claimant(s) examined at the Petitioner was time of passing of the award to ascertain examined. Financial his/their financial condition? condition was asked from the petitioner.
21 Whether the photographs, specimen Yes signatures, proof of residence and particulars of bank account of the injured/legal heirs of the deceased taken at the time of passing of the award?
22 Mode of disbursement of the award Some amount is amount to the claimant (s). directed to be released to the petitioner and some amount is kept in the form of fixed deposit.
23 Next date for compliance of the award. 06.07.2018
Announced in the Open Court
on 06th day of June, 2018 (SAMEER BAJPAI)
Presiding Officer : MACT (S)
Saket Courts New Delhi
Petition No. : 75938/16 Page No. 16 of 16