Delhi District Court
Hc Rasool Ahmad vs . Md. Usman & Ors. on 13 January, 2014
HC Rasool Ahmad Vs. Md. Usman & Ors.
1
IN THE COURT OF SHRI SANJIV JAIN PO : MACT02 : SOUTH DISTT.
SAKET COURTS : NEW DELHI
In Suit No. : 52/13
Unique Case ID No.: 02406C0177582013
Rasool Ahmad
S/o Mohd. Usman
R/o Quarter No. G12, Policy Colony
PS Karol Bagh, New Delhi.
...... Claimant.
Versus
1. Prem Singh
S/o Sh. Pan Singh
nd
R/o C2 /268 Madangir
Ambedkar Nagar, New Delhi. (Driver/Owner)
2. The New India Assurance Co. Ltd
Ashwani Sharma Development Officer
The New India Assurance Co. Ltd
22, Yusuf Sarai, Commercial Complex
near Narula's New Delhi49.
(Insurer)
......Respondents
Date of Institution : 10.04.2013
Date of reserving of judgment/order : 13.01.2014
Date of pronouncement : 13.01.2014
J U D G M E N T :
1.Detailed Accident Report was filed by the SHO of the Police Station Saket of an accident which took place on 17.02.2013 at about 9.05 PM Suit No.52/13 1/13 HC Rasool Ahmad Vs. Md. Usman & Ors.
2near Asian Market, M. B. Road Picket, New Delhi. The accident resulted into injuries on the person of Rasool Ahmad.
2. Briefly, the facts as disclosed in the DAR are that on the aforesaid date and time, Rasool Ahmed alongwith Puran Chand was performing duty of checking vehicles at Asian Market, M. B. Road Picket, Saket, New Delhi. All of a sudden, a motorcycle bearing no. DL3SBE6156 being driven by Prem Singh in a rash and negligent manner came and hit him. He fell down and sustained injuries. He was taken to Max Hospital where his MLC was prepared. Case was registered vide FIR No. 66/13 at the police station Saket against the respondent no. 1. He was head constable in Delhi Police. He was getting salary of Rs. 34,097/ per month. Respondent no. 1 was also the owner of the motorcycle and it was insured with respondent no. 2.
3. Notice of the DAR was given to the respondents. Both the respondents contested the DAR and filed their reply. Respondent no. 1 stated that the accident had occurred due to the fault of the injured as he was negligent himself. He suddenly came in front of the motorcycle. He stated that his vehicle was insured with respondent no. 2 w.e.f 23.07.12 to 22.07.13. He was having a valid and effective driving licence at the time of accident.
Suit No.52/13 2/13
HC Rasool Ahmad Vs. Md. Usman & Ors.
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4. Respondent no. 2 in its reply admitted that the offending vehicle was insured with it vide policy no. 31150231120100002687 for the period from 23.07.12 to 22.07.13 in favour of respondent no. 1. It alleged that as per their investigation report, driver Prem Singh was driving motorcycle whereas driving licence was of the category LMV Transport. It further alleged that as per FSL report, the driver of the offending vehicle was found to have consumed Ethyl Alcohol 147.2 mg/100.
5. Vide order dated 21.05.13, the DAR was treated as petition U/s 166 & 140 of MV Act and following issues were framed vide order dated 29.07.2013:
1. Whether Rasool Ahmed sustained injuries in road accident on 17.02.2013 at about 9.05 PM near Asian Market, M. B. Road Picket, New Delhi due to rash and negligent driving of the vehicle ( motorcycle) bearing no. DL3SBE6156 by Prem Singh, owned by Prem Singh and insured with New India Assurance Company Ltd?
2. To what amount of compensation, the claimant is entitled and from whom?
3. Relief.
6. To substantiate his claim, claimant examined himself as PW1. He tendered his affidavit Ex. PW1/A and documents Ex. PW1/1 to Ex. PW1/11.
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HC Rasool Ahmad Vs. Md. Usman & Ors.
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7. Respondents did not examine any witness.
8. I have heard the arguments advanced by Sh. Ganesh Tripathi for the claimant and perused the documents on record.
9. My findings on the issues are as under :
I S S U E N O . 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 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. PW1 has stated that on 17.02.2013 at about 9.00 PM, he alongwith Puran Chand was performing duty of checking vehicles at Asian Suit No.52/13 4/13 HC Rasool Ahmad Vs. Md. Usman & Ors.
5Market, M. B. Road Picket, Saket, New Delhi. All of a sudden, a motorcycle bearing no. DL3SBE6156 being driven by Prem Singh in a rash and negligent manner came and hit him. He fell down and sustained injuries. He was taken to Max Hospital where his MLC was prepared. Case was registered vide FIR No. 66/13 at the police station Saket against the respondent no. 1. He relied upon the DAR Ex. PW1/10 ( colly) filed by SHO of PS Saket which included the charge sheet U/s 173 Cr. P.C. Perusal of FIR and documents reveal that the case was registered on the statement of Constable Puran Chand who was alongwith the claimant on duty at the time of accident. He had stated that on 17.02.2013, he, HC Rasool Ahmed, Constable Subhash Chand and Constable Sandeep were on duty from 8.00 PM to 5.00 AM at Asain Market, M. B. Road Picket. At about 9.05 PM, when they were checking the vehicles, a bike no. DL3SBE6156 being driven by Prem Singh in a rash and negligent manner came and hit HC Rasool Ahmed who was checking the vehicles near barricade. As a result of it, HC Rasool Ahmed and driver of motorcycle alongwith motorcycle fell down on the road. He took both of them to Max Hospital. He had stated that the accident had taken place due to rash and negligent driving of driver of the motorcycle. PW1 Rasool Ahmed on being crossexamined stated that the driver of offending vehicle had consumed liquor.
12. Perusal of documents placed with DAR and the FSL report Suit No.52/13 5/13 HC Rasool Ahmad Vs. Md. Usman & Ors.
6reveals that respondent no.1 was found to have consumed Ethyl Alcohol 147.2mg/100ml which is beyond the permissible limit of 30mg/100ml.
13. On considering all the facts and circumstances, I am of the view that the accident had occurred near Asian Market, M.B. Road Picket, New Delhi due to rash and negligent driving of motorcycle bearing no. DL3SBE6156 by respondent no. 1. It resulted into injuries on the person of HC Rasool Ahmed. Documents show that motorcycle was owned by respondent no. 1 and it was insured with respondent no. 2.
14. Issue no.1 is accordingly decided in favour of the claimant and against the respondents.
I S S U E N O. 2
15. It has been held by Hon'ble Apex Court in R.D. 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 Suit No.52/13 6/13 HC Rasool Ahmad Vs. Md. Usman & Ors.
7concepts 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 shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
COMPENSATION FOR EXPENSES INCURRED ON MEDICAL TREATMENT :
16. PW1 has stated that from the spot he was taken to Max Hospital where his MLC was prepared. He remained in Max Hospital from 17.02.2013 to 19.02.13. He took his further treatment from Ram Manohar Lohia Hospital and Jeevan Mala Hospital. As per discharge summary Ex. PW1/8 ( colly), he remained in Jeevan Mala Hospital from 18.04.13 to 19.04.13. He was diagnosed to have fracture lateral condyle left tibia. He underwent operation for open reduction and internal fixation with canulated screw fixation. He filed medical bills Ex. PW1/10 ( colly) of Rs. 21,265/. Keeping in view his injuries and facts and circumstances of the case, I award Rs. 21,300/ to the claimant Suit No.52/13 7/13 HC Rasool Ahmad Vs. Md. Usman & Ors.
8towards medical expenses.
COMPENSATION FOR PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
17. Testimony of PW1 and the medical documents show that he sustained grievous injury. He remained admitted in the hospital for 5 days. He was operated. Injuries had caused him lot of pain and agony. Looking into his injuries and the facts and circumstances of the case, I award Rs. 30,000/ to the claimant towards pain, sufferings and enjoyment of life.
COMPENSATION FOR SPECIAL DIET, ATTENDANT CHARGES AND CONVEYANCE CHARGES :
18. PW1 has stated that due to the accident, he could not do his routine functions freely. It is seen that a person who gets injured in a road accident is advised to take protein in his diet to recover from the injuries. He might have taken the assistance of attendant to perform his ordinary pursuits. He attended the hospital as an OPD patient. He had to go to the hospital several times for his treatment. Looking into his injuries, I award Rs. 10,000/ to the petitioner towards special diet and conveyance and Rs. 15,000/ towards attendant charges. COMPENSATION FOR LOSS OF INCOME:
19. PW1 has stated that he was posted as Head Constable in Delhi Suit No.52/13 8/13 HC Rasool Ahmad Vs. Md. Usman & Ors.
9Police. He was getting a salary of Rs. 34,907/ per month. He could not join his duties for more than five months. He filed medical/fitness certificate Ex. PW1/3 ( colly) which goes to show that he was on leaves from 18.02.2013 to 16.08.2013 which leave he could have utilized for some constructive work. He filed his salary slip Ex. PW1/2. As per which his salary was Rs. 34097/ per month which included TA, Metro pass allowance and conveyance allowance which are to be deducted so net salary comes to Rs. 31,120/. The loss of income thus comes to 6x31,120/= 1,86,720/ to the claimant. I therefore award Rs. 1,86,720/ towards loss of income.
20. Thus the total compensation in favour of the petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 21,300/
PAIN & SUFFERINGS &
ENJOYMENT OF LIFE : Rs. 30,000/
SPECIAL DIET, ATTENDANT
& CONVEYANCE CHARGES : Rs. 25,000/
LOSS OF INCOME : Rs. 1,86,720/
===========
TOTAL : Rs. 2,63,020/
L I A B I L I T Y
21. As the offending vehicle was being driven by respondent No.1, therefore primary liability to compensate the petitioner is that of respondent No.1. The offending vehicle was also owned by respondent Suit No.52/13 9/13 HC Rasool Ahmad Vs. Md. Usman & Ors.
10no.1, therefore, he becomes vicariously liable to compensate the petitioner. As the vehicle was insured with respondent no. 2 so it becomes contractually liable to compensate the petitioner for the above mentioned awarded amount to the extent of liability of the insured.
22. Ld. counsel in his quest to exonerate the insurance company from its liability as contended that the respondent no.1 i.e. the driver was under
the influence of liquor at the time of accident. He relied on the FSL report.
23. I have considered the submissions and perused the record.
24. Perusal of the FSL Report of the respondent no.1 reveals that he had consumed ethyl alcohol 147.2 mg/ 100ml which is beyond the permissible limit of 30 mg/100ml. meaning thereby that he was under
intoxication. As per the traffic rules, a person is not allowed to drive a vehicle under intoxication as it may danger the life of the persons commuting on the road. Since, it is a case of violation of traffic rules, so it is also a case of breach of terms and conditions of the insurance policy. Admittedly, the vehicle was insured and respondent no.1 had a valid and effective licence to drive the vehicle but keeping in view his conduct he should not be absolved of his liability to pay part Suit No.52/13 10/13 HC Rasool Ahmad Vs. Md. Usman & Ors.11
compensation to the petitioner. I am of the view that the liability of the respondent no.1 to pay compensation to the claimant should be to the extent of 30% and that of the respondent no.2 to the extent to 70%.
25. Legislature being conscious of the magnitude of the plight of the victims of road accident have introduced the present beneficial provisions to protect the interest of third parties i.e. victims of road accident so as to enable them to claim compensation from the driver/ owner of the vehicle. Legislature in its wisdom has made it a statutory obligation of every owner to have his vehicle insured against third party risks. This has been made mandatory so that victims of road accident even after being granted compensation from the court, should not run from pillar to post to have the orders of the court executed and to facilitate them to get the same from the Insurance Company. It was held in the case of "National Insurance Co. Ltd. Vs. Vasdev Kukreja & Ors II (2010) ACC 148" that primary liability to pay the award amount is of insurance company. The Hon'ble High Court directed the insurance company to pay the award and granted the recovery rights in its favour to recover the award amount from the owner of the offending vehicle.
26. Balancing the "twin interest" of the Insurance Company at one hand and that of the third party i.e. petitioner for whose benefit the present Suit No.52/13 11/13 HC Rasool Ahmad Vs. Md. Usman & Ors.
12legislation was brought on the statute book, it is directed that the Insurance Company shall pay the whole compensation awarded to the petitioners and shall have the right to recover 30% of the compensation amount from the driver i.e respondent no.1 without recourse to separate recovery proceedings.
27. Issue No. 2 is accordingly decided in favour of the claimant and partly against the respondent no.1 and party against the respondent no. 2.
R E L I E F
28. In view of my findings I award a sum of Rs.2,63,020/ as compensation with interest @ 9 % per annum from the date of filing the DAR till the date of its realization in favour of the claimant and against the respondent No.2.
29. Respondent no 2 is directed to deposit the awarded amount in favour of the claimant directly to the State Bank of India, Saket Courts Complex Branch within 30 days from today failing which respondent no. 2 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
30. The Respondent no. 2 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. Suit No.52/13 12/13
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31. The Respondent no. 2 is directed to furnish a copy of this award alongwith the cheques 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 the claimant/ petitioner in whose favour the award has been passed.
32. The Respondent no. 2 shall intimate to the claimant / petitioner about its having deposited the cheques 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.
33. Copy of this award / judgment be given to the parties for necessary compliance.
34. Case is now fixed for compliance by insurance company for 17.02.2014.
Announced in the Open Court
on 13.01.2014 (SANJIV JAIN)
Presiding Officer : MACT02
South Distt. : Saket Courts
New Delhi : 13.01.2014
Suit No.52/13 13/13