Delhi District Court
Manoj Mishra vs . Bajaj Allianz General Insurance Co. on 7 February, 2012
Manoj Mishra Vs. Bajaj Allianz General Insurance Co.
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IN THE COURT OF SHRI SANJIV JAIN : PRESIDING OFFICER : MACT02
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
In Suit No. 174/10
Manoj Mishra
S/o Sh. Akhilesh Mishra
R/o 630/7, Sambhav Colony,
Jonapur, Mandi Pahari,
New Delhi
...... Petitioner
Versus
1. M/s Bajaj Allianz General Insurance Co. Ltd.
Second Floor, DLF Industrial Plot,
Moti Nagar, New Delhi
2. M/s Pallia Automobile P. Ltd.
A503, Som Dutt Chamber1,
5, Bhikaji Cama Place,
New Delhi
3. Satpal Singh
S/o Sh. Prem Singh
R/o Kishan Garh, Vasant Kunj
New Delhi.
......Respondents
Date of Institution : 23.02.2010
Date of reserving of judgment/order : 07.02.2012
Date of pronouncement : 07.02.2012
Suit No. 174/10 Page No.1/13
Manoj Mishra Vs. Bajaj Allianz General Insurance Co.
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J U D G M E N T :
1. This petition U/s 166 & 140 of the M.V. Act, 1988 as amended upto date (hereinafter referred to as Act) has been filed by Manoj Mishra claiming a compensation of Rs. 10,00,000/ for the injuries sustained by him in an accident which took place on 29.12.09 at about 3.45 AM.
2. The case of the petitioner in brief is that on 29.12.2009 at about 3.45 AM he was on duty as Security Officer under Metro Rail near Pillar no. 52, M.G. Road, New Manglapuri, New Delhi. An Innova car bearing no. DL 1Y B 8323 being driven by respondent no. 3 in a rash and negligent manner and at high speed came and hit him and Manish Kumar. Both of them sustained injuries. Manish Kumar died on the spot. The petitioner was taken to AIIMS. The petitioner was 39 years of age. He was a Security Officer with Trig Detective Pvt. Ltd. and earning Rs. 7000/ p.m. It is stated that respondent no.2 was the owner of the offending car and it was insured with respondent no.1.
3. Notice of the petition was given to the respondents. Suit No. 174/10 Page No.2/13
Manoj Mishra Vs. Bajaj Allianz General Insurance Co. 3
4. Respondent no.1 and 2 filed their written statements wherein they denied the factum of accident. However, respondent no.1 admitted that the offending vehicle was insured with it vide policy bearing no. OG101101180300000581 and it was valid from 18.12.09 to 17.12.10. Respondent no.3 did not contest the petition and was proceeded Ex parte vide order dated 23.05.2011.
5. On the basis of pleadings of the parties, following issues were framed :
i. Whether the petitioner received injuries in road accident on 29.12.09 at 3.45 hrs. Pillar no. 52, M.G. Road, near New Manglapuri, New Delhi due to rash and negligent driving of Innova car bearing no. DL 1Y B 8323 driven by R3, owned by R2 and insured with R1?
ii. To what amount the petitioner is entitled and from whom? iii. Relief.
6. The parties were thereafter called upon to substantiate their case by leading evidence.
7. The petitioner appeared in the witness box and tendered his affidavit Suit No. 174/10 Page No.3/13 Manoj Mishra Vs. Bajaj Allianz General Insurance Co. 4 Ex.PW1/A and the documents i.e. medical bills, OPD card, salary slip etc. Ex.PW1/1 to Ex.PW1/6 wherein he reiterated the facts as stated in the petition. He stated that he received multiple injuries, swelling and wounds on different parts of body. He spent huge amount on his treatment by taking loan from his relatives. He was a Security Guard in Trig Detective Pvt. Ltd. on a salary of Rs. 7000/ and due to the accident he remained on long leave.
8. No witness was examined by the respondents.
9. I have heard the arguments advanced by Ld. counsel Ms. Kanta Chaudhary for the petitioner, Sh. Arun Mahajan for respondent no.2 and Sh. M Awasthi for respondent no.1 and perused the record. I S S U E No. 1
10. 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 Suit No. 174/10 Page No.4/13 Manoj Mishra Vs. Bajaj Allianz General Insurance Co. 5 because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal is simply to quantify the compensation which is just rational and reasonable on the basis of inquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs. New India Assurance Co. Ltd. 2001 ACJ 421 SC.
11. Testimony of PW1 shows that on 29.12.09 at about 3.45 hrs. he was on duty as Security guard under Metro Rail at M.G. Road near New Manglapuri. He was hit by an Innova car bearing no. DL 1Y B 8323 which came at a high speed being driven by respondent no.3 in a rash and negligent manner. Due to the impact he fell down and sustained multiple injuries. He was removed to AIIMS where his MLC was prepared. As per the MLC the petitioner sustained grievous injuries. In this case an Accident Information Report was filed by the SHO after registration of the case vide FIR 57/09 at police Fateh Pur Beri. Perusal of it reveals that the case was registered on the statement of Suit No. 174/10 Page No.5/13 Manoj Mishra Vs. Bajaj Allianz General Insurance Co. 6 the petitioner wherein he had categorically stated that the accident had occurred due to rash and negligent driving of Innova car by respondent no.3. There were fresh damages on the front portion of the Innova car. Respondent no.3 was arrested on the same day of accident. Nothing material has come in the testimony of PW1 to draw an inference that the accident did not take place due to rash and negligent driving by respondent no.3. The Hon'ble High Court of Delhi in a case titled as 2009 ACJ 287 National Insurance Company Limited Vs. Pushpa Rana has held that where a petitioner files the certified copy of the criminal record showing completion of investigation, issuance of chargesheet, certified copy of the FIR, all these documents are sufficient proof to come to the conclusion that the driver was negligent.
It is primafacie established that the accident had occurred due to rash and negligent driving of Innova car no. DL 1Y B 8323 by respondent no.3. It has also come on record that respondent No. 2 was the owner of the vehicle and it was insured with respondent No. 1.
12. Thus, issue no. 1 is decided in favour of the petitioner and against the respondents.
Suit No. 174/10 Page No.6/13
Manoj Mishra Vs. Bajaj Allianz General Insurance Co. 7 I S S U E No. 2
13. The petitioner has claimed Rs. 10,00,000/ as 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.
14. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters ie. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of expectation of life, ie. on account of injury the normal longevity of the person concerned is Suit No. 174/10 Page No.7/13 Manoj Mishra Vs. Bajaj Allianz General Insurance Co. 8 shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life." Let me assess the compensation which the petitioner is entitled for under different heads.
COMPENSATION FOR EXPENSES INCURRED ON MEDICAL TREATMENT :
15. The petitioner has filed the MLC, medical bills Ex.PW1/1 (colly.), discharge slip Ex.PW1/2 and OPD card Ex.PW1/3. As per the MLC, the injuries were grievous in nature as he had fracture in his leg. The petitioner has filed the bills for Rs. 1659/ but looking into the injuries and facts and circumstances of the case, I am of the view that he might have spent much more. I, therefore, award Rs. 5,000/ to the petitioner on account of medical expenses.
COMPENSATION FOR PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
16. Testimony of PW1 shows that due to the accident, he sustained multiple injuries. Although he was discharged from the hospital on the Suit No. 174/10 Page No.8/13 Manoj Mishra Vs. Bajaj Allianz General Insurance Co. 9 same day but the injuries on his person were grievous in nature. It has caused lot of pain to the petitioner. Looking into the injuries and the facts and circumstances of the case, I award a sum of Rs. 25,000/ towards pain & sufferings.
COMPENSATION FOR SPECIAL DIET, ATTENDANT CHARGES AND CONVEYANCE CHARGES :
17. PW1 has stated that after the accident he was taken to AIIMS where his MLC was prepared. The injuries were opined to be grievous in nature as he had fracture in his leg. He could not do work for long. He was advised special diet for early recovery. He followed up his treatment as an OPD patient. He also took the help of attendant. Taking into consideration the multiple injuries and all the facts, I award a sum of Rs. 10,000/ towards special diet, conveyance and attendant charges.
COMPENSATION FOR LOSS OF INCOME :
18. The petitioner at the time of accident was working as a Security Guard in Trig Detective Pvt. Ltd. and drawing a salary of Rs. 7,000/ p.m. He Suit No. 174/10 Page No.9/13 Manoj Mishra Vs. Bajaj Allianz General Insurance Co. 10 has also filed certificate Ex.PW1/6 issued by Trig Detectives (P) Ltd. showing his salary and leave period. As per which, he was drawing a salary of Rs. 7500/ p.m. and he remained on leave for two months leave. Thus, the loss of income in the present case is calculated as 2 x 7500 = 15000/. I, therefore, award Rs. 15,000/ towards loss of income.
19. Thus the total compensation awarded in favour of the petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 5,000/
PAIN & SUFFERINGS &
ENJOYMENT OF LIFE : Rs. 25,000/
SPEICAL DIET, ATTENDANT &
CONVEYANCE CHARGES : Rs. 10,000/
LOSS OF INCOME : Rs. 15,000/
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TOTAL : Rs. 55,000/
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L I A B I L I T Y
20. As the offending vehicle was being driven by respondent no.3 therefore, primary liability to compensate the petitioner remains with Suit No. 174/10 Page No.10/13 Manoj Mishra Vs. Bajaj Allianz General Insurance Co. 11 that of respondent no. 3. Since the vehicle is owned by respondent no. 2 so it is vicariously liable to compensate the petitioner. It is an admitted position on record that the vehicle was insured with respondent no.1, therefore, respondent no. 1 becomes contractually liable to compensate the petitioner.
In the instant case no evidence has been brought by the Insurance Company to show that there was breach of any insurance policy by the Respondent No.2 or the Respondent No.3 was not having Driving License. Thus, I am of the view that Respondent No.1 is liable to pay compensation for the above awarded amount to the extent of liability to the insured.
R E L I E F
21. In view of my findings I award a sum of Rs. 55,000/ as compensation with interest @ 9 % per annum from the date of filing the petition till the date of its realization in favour of the petitioner and against the respondent no. 1 on account of its liability.
22. Respondent No. 1 is directed to pay the awarded amount by way of cheque in favour of the petitioner, to be deposited in this Tribunal, Suit No. 174/10 Page No.11/13 Manoj Mishra Vs. Bajaj Allianz General Insurance Co. 12 within a period of 45 days of this order failing which it shall be liable to pay future interest @ 12% per annum on the awarded amount till its realization (for the delayed period). It shall intimate to the petitioner about depositing the cheque in terms of the award at the address of petitioner mentioned in title of this award, so as to facilitate the petitioner to withdraw the same.
23. Copy of this Judgment be given to the parties for compliance.
24. Nazir attached to the Tribunal of undersigned is directed to issue notice to the petitioner immediately on deposit of the cheque of the awarded amount by the Respondent No. 1 in this Tribunal so as to facilitate him to get the same released.
25. File be consigned to Record Room.
Announced in the open court
on 07th Day of February, 2012 (SANJIV JAIN )
Presiding Officer : MACTII
South Distt. : Saket Courts
New Delhi : 07.02.2012
Suit No. 174/10 Page No.12/13
Manoj Mishra Vs. Bajaj Allianz General Insurance Co. 13 Manoj Mishra Vs. M/s Bajaj Allianz General Insurance Co.
Suit No. 174/10
07.02.2012
Present: Ld. Counsel for the parties.
Final Arguments heard.
Vide separate order of even date a compensation of Rs. 55,000/ alongwith interest @ 9% per annum from the date filing the petition till realization of the amount is passed in favour of petitioner.
Copy of the award be given to the parties.
File be consigned to Record Room.
(SANJIV JAIN ) Presiding Officer : MACTII South Distt. : Saket Courts New Delhi : 07.02.2012 Suit No. 174/10 Page No.13/13