Delhi District Court
Shankar Yadav vs . Ct. Datoon Konyak & Ors. on 17 November, 2018
Shankar Yadav Vs. Ct. Datoon Konyak & ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
JUDGE, MACT-1 (CENTRAL), THC, DELHI.
MACT No. 133/17
Unique Case ID No. DLCT-01-002196-2017
Sh. Shankar Yadav
S/O Sh. Badri Parsad
R/o Khasra 11/11, Gali no. 13,
A- Block, Kamal Pur, Kamal Vihar
Burari, Delhi-84
Also at:-
A-13, Kamal Vihar,
Kamal Pur Burari, Delhi-84.
............Petitioner
VERSUS
1. Jatoon Konayak,
S/o Sh. Wangjam Konayak,
R/o GD, CRPF Lungjing Imphal,
Manipur
Also At:-
Village Chingboi, PS Walak CHNG,
Disst. Mon Nagaland-798802
...........Respondent No.1
(Driver)
2. C.R.P.F -2, BN, Delhi Through Its Commandant, MACT No 133/17 Page No. 1 of 22 Shankar Yadav Vs. Ct. Datoon Konyak & ors.
Bawana, Delhi-110039 ...........Respondent No.2 (Owner/Chief Authority) Date of filing of DAR : 09.02.2017 Arguments heard on : 31.10.2018 Date of passing of Award : 17.11.2018 Present: Sh. Vinod Kumar Singh, Advocate, counsel for the petitioner Sh. Sh. Krishan Mohan proxy counsel for Sh. Y.K. Dubey, Advocate, Counsel for Respondent N. 1 & 2 with Ct. Chandra Kant Sharma from department.
FORM- V COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 10.09.2016
2. Date of intimation of the accident by 14.09.2016 the Investigating Officer to the Claims Tribunal. (Clause 2)
3. Date of intimation of the accident by Not mentioned in the Investigating Officer to the DAR Insurance Company. (Clause 2)
4. Date of filing of Report under Section Not mentioned in 173 Cr.P.C. before the Metropolitan DAR Magistrate. (Clause 10)
5. Date of filing of Detailed Accident 09.02.2017 MACT No 133/17 Page No. 2 of 22 Shankar Yadav Vs. Ct. Datoon Konyak & ors.
Information Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the No Insurance Insurance Company. (Clause 11) Case
7. Date of service of DAR on the 09.02.2017 claimant(s). (Clause 11)
8. Whether DAR was complete in all Yes respects? (Clause 16)
9. If not, whether deficiencies in the -
DAR removed later on?
10. Whether the police has verified the Yes documents filed with DAR? (Clause 4)
11. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/ direction warranted?
12. Date of appointment of the Designated NA Officer by the Insurance Company.
(Clause 20)
13. Name, address and contact number NA of the Designated Officer of the Insurance Company. (Clause 20)
14. Whether the Designated Officer of the No Insurance Company submitted his report within 30 days of the DAR?
(Clause 22)
15. Whether the Insurance Company NA admitted 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 deficiency on the part of the NA Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
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17. Date of response of the claimant(s) to -
the offer of the Insurance Company. (Clause 24)
18. Date of the award 17.11.2018
19. Whether the award was passed with No the consent of the parties?(Clause 22)
20. Whether the claimant(s) were directed Yes 02.08.2018 to open savings bank account(s) near their place of residence? (Clause 18)
21. Date of order by which claimant(s) were directed to open savings bank 14.09.2018 account(s) near his place of residence and produce PAN Card and Adhaar 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) Passbook produced the passbook of their produced without savings bank account near the place endorsement of their residence along with the endorsement, PAN Card and Adhaar Card? (Clause 18)
23. Permanent Residential Address of the As mentioned in Claimant(s)(Clause 27) award
24. Details of savings bank account(s) of Shanker Yadav the claimant(s) and the address of the Account no. bank with IFSC Code.(Clause 27) 2925101016171 IFSC CNRB0002925 Central Bank, Burari
25. Whether the claimant(s) savings bank Yes account(s) is near his place of residence?(Clause 27) 26 Whether the claimant(s) were Yes on examined at the time of passing of the 14.09.2018 award to ascertain his/their financial condition? (Clause MACT No 133/17 Page No. 4 of 22 Shankar Yadav Vs. Ct. Datoon Konyak & ors.
AWARD:
1. Detailed Accident Report (hereinafter referred to as DAR) has been filed in respect of an FIR No.193/16 for the offence punishable under Sections 279/338 IPC, PS Kamla Market, Delhi in relation to injuries caused to claimant Shakar Yadav in a motor vehicular accident that took place on 10.09.2016 within the jurisdiction of PS Kamala Market, Delhi.
(i) Later on, a claim petition has also been filed by the petitioner under Section 166 & 140 of the Motor Vehicle Act, 1988 (in short M.V Act) claiming a compensation of ` 5 lac.
2. Facts in brief as emerged from the DAR and claim petition are that on 10.09.2016 at about 10.45 pm, petitioner was returning to home via Mitno Road on his scooty bearing no. DL2SM-5797. It was alleged that when he reached near Bagwan Dass Cold Drinks shop, offending Govt. Gypsy bearing no. AP 11X-2280 came at fast speed in a rash and negligent manner from the opposite direction and hit his scooty. Due to forceful impact, claimant fell down and sustained multiple fractures. After hitting the scooty, offending Gypsy struck with the road side pavement.
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(i) It was alleged that at the time of accident, offending vehicle was being driven by respondent no. 1 and it was registered in the name of respondent no.2 and same was insured with respondent no.3.
3. DAR/claim petition is contested by respondent no. 2 by filing the reply stating that since the accident had taken place due to the sole rash and negligence of injured, respondents are not liable to pay any compensation. No separate reply is filed by respondent no. 1.
4. Vide order dated 13.09.2017, following issues were framed:-
(i) Whether the petitioner had suffered grievous injuries in road traffic accident on 10.09.2016 within the jurisdiction of PS:
Kamla Market, Delhi due to rash and negligent driving of the vehicle bearing registration no. AP-11X-2280 driven by respondent No.1?
(ii) Whether the petitioner is entitled to any compensation? if so, to what amount and from whom?
(iii) Relief.MACT No 133/17 Page No. 6 of 22
Shankar Yadav Vs. Ct. Datoon Konyak & ors.
5. In support of his case, petitioner examined himself witness as PW1
(i) In rebuttal, respondent No. 2 examined Ct. Singham Suraj as R2W1.
6. On completion of evidence led by both the parties, statement of petitioner was recorded on 14.09.2018 in compliance of clause 27 of FAO No. 842 of 2003 titled Rajesh Tyagi & ors. vs. Jaivir Singh & ors. decided by Hon`ble High Court of Delhi on December 15, 2017.
7. I have heard rival submissions advanced by counsel for petitioner and respondents, perused the record carefully and gave my thoughtful consideration to their contentions.
8. My issue-wise findings are as under:-
Issue No. 1:
Whether the petitioner had suffered grievous injuries in road traffic accident on 10.09.2016 within the jurisdiction of PS:
Kamla Market, Delhi due to rash and negligent driving of the vehicle bearing registration no. AP-11X-2280 driven by respondent No.1?
FINDING:-MACT No 133/17 Page No. 7 of 22
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9. Counsel appearing for the respondents vehemently contended that since the accident had taken place due to the contributory negligence of petitioner, 50% of the amount is liable to be deducted from the compensation amount.
(i) Per contra counsel appearing for the petitioner refuted the said contention by arguing that there is no iota of evidence to prove that there was any contributory negligence on the part of claimant.
(ii) In this regard, testimony of PW1, R2W1 and site plan are relevant. From the deposition of both the witnesses it is clear that it was a head on collision between the scooty and Gypsy. PW1 in his cross examination admitted that he was going from Minto Road side towards Turkman Gate side and there was no road divider at the place of accident. Though PW1 denied the suggestion that he was not driving the scooty on wrong side but R2W1 testified that the scooty was coming at fast speed from wrong side. Perusal of the site plan reveals that the offending gypsy was going from East to West direction i.e. from round about towards to Minto Road and this is also corroborated by R2W1 by deposing that they were going to New Delhi Railway Station to receive some Govt. Officer. It is also clear from the site plan that scooty was coming from Minto Road towards round about i.e. Turkman Road.
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(iii) From the site plan, it can safely be culled out that if the petitioner was going from Minto Road to Turkman side, his scooty should be at the left side of the road but the accident in question had taken place at point A which is located towards right side of the petitioner. This shows that the petitioner had entered in the lane of Gypsy and since Gypsy was coming from opposite direction, Gypsy hit the scooty.
(iv) From the site plan, it is also clear that after hitting the scooty at point A, Gypsy struck at point 'C' which is the corner of Minto road and Press Road. Since the point C is located at a considerable distance from point A, it can safely be culled out that Gypsy must be driven at high speed and due to that reason respondent no. 1 failed to stop the Gypsy. Further from the MLC, it is clear that respondent no. 1 had consumed liquor, which establishes that he was driving the offending Gypsy after consuming liquor. Since the blood sample of respondent no. 1 was not taken, it is not clear how much alcohol was in his blood. Since respondent no. 1 was official of Central Armed Force i.e. CRPF, he was not supposed to drive the Govt. vehicle after consuming liquor. R2W1 in his cross-examination admitted that they were posted at High Court and they left from the High Court at 9.15 pm. Indisputably, the accident had taken place at about 10.45 pm, it means that they have taken about 90 minute to reach at the place of accident despite the fact the place of accident is not located too far from the High Court complex. This shows that they had consumed liquor on the way and this can be inferred MACT No 133/17 Page No. 9 of 22 Shankar Yadav Vs. Ct. Datoon Konyak & ors.
from the deposition of R2W1 as he admitted in his cross- examination that they stopped at shop to buy cold drink. Though he testified that they purchased Maza but under the given circumstances, testimony of R2W1 to the extent that they purchased Maza Cold drink does not inspire any confidence. Since in the MLC it is mentioned that respondent no. 1 consumed liquor, it can safely be culled out that respondent no. 1 had consumed liquor with the cold drink.
(v) In view of the aforesaid discussion I am of the considered opinion that the accident had taken place due to the negligence of respondent no. 1 as well as negligence of petitioner. Negligence on the part of respondent no. 1 was that he was driving the offending Govt. vehicle after consuming liquor at fast speed and negligence on the part of the petitioner was that he failed to maintain his lane and entered in the lane of Gypsy. Since the respondent no. 1 failed to stop the vehicle after seeing the scooty, he was also negligent.
(vi) In view of the above, contributory negligence on the part of the petitioner is assessed at 50%. Issue no. 1 decided accordingly.
Issue No.2 :
Whether the petitioner is entitled to any compensation? if so, to what amount and from whom?MACT No 133/17 Page No. 10 of 22
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10. As per discharge summary, petitioner remained admitted at LN hospital w.e.f. 11.09.2016 to 15.09.2016 as he sustained both bone fracture left leg open Grade -III-B with fracture distal and radius. He had undergone surgery on 11.09.2016. At the time of discharge he was advised to take high protein diet and also advised to visit hospital on 17.09.2016 for follow-up treatment. He remained under treatment till 15.03.2017. Sutures were removed on 24.09.2016. Even on 31.12.2016 doctor advised him for high protein diet. Till 15.03.2017 he was advised to walk with walker.
Income of The Petitioner:-
(i) Though petitioner claimed that he was earning ` 25,000/- per month, but during inquiry he failed to produce any evidence in this regard. In the absence of any cogent evidence, no reliance can be placed on the version of petitioner that he was earning ` 25,000/- per month. Since petitioner was running a small shop, it can safely be culled out that he must have acquired some skill, accordingly, income of the petitioner is liable to be assessed as per minimum wages applicable to skilled workers. Since at the relevant time minimum wages for skilled workers was ` 11,622/-, his income is assessed at ` 11,622/-
(a). Loss of Income:MACT No 133/17 Page No. 11 of 22
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(i) As already stated that petitioner remained under treatment till March 2017 and till then he was not able to walk with the help of walker, thus it can safely be culled out that petitioner may not be able to join his work effectively till March 2017, Accordingly, loss of income for 7 months amounting Rs. 81,354/- ( 11,622 X 7) is awarded under this head.
(b) Expenditure on Medical Treatment:
(i) Counsel claimed that petitioner had spent a sum of ` 7,353/- on his treatment. Bills are on record. During inquiry, no contrary evidence has been led which may raise any suspicion over the bills produced by the claimant.
Accordingly, a sum of ` 7,353/-- is awarded towards medical expenses.
(c) CONVEYANCE CHARGES: (i) Counsel claimed that petitioner had incurred
sum of ` 18,300/- on ambulance during the follow-up treatment. The bills of ambulance are on record and same are collectively Ex. CW1/4 (colly). During inquiry no contrary evidence has been led which may raise any suspicion over the said bills. Accordingly, a sum of ` 18,300/- is awarded towards conveyance charges.
(d) SPECIAL DIET:
MACT No 133/17 Page No. 12 of 22Shankar Yadav Vs. Ct. Datoon Konyak & ors.
(i) Counsel has claimed a sum of ` 15,000/- under this head. As already stated that doctor advised the petitioner for high protein diet. Though no specific evidence has been led to prove the amount spent on special diet, yet considering the duration of treatment, it can safely be culled out that petitioner must have spent substantial amount on special diet Accordingly, a sum of ` 15,000/- is awarded under this head.
(e) NURSING/ATTENDANT CHARGES: (i) Since petitioner sustained fracture of both
bone and was not able to walk independently, it can safely be culled out that petitioner must be attended either by a paid attendant or a family member for a considerable period. Considering the facts and circumstances of the case, a sum of ` 15,000/- is awarded under this head.
(f) COMPENSATION UNDER NON-PECUNIARY HEADS:-
Mental and Physical Shock :-
(i) As already stated that petitioner met with an accident all of sudden when he was returning to home. Due to the accident, he not only sustained injury, but he had to remain admitted in the hospital and to undergo surgery. Besides that he had remained under treatment for a long period. Thus, it MACT No 133/17 Page No. 13 of 22 Shankar Yadav Vs. Ct. Datoon Konyak & ors.
can safely be culled out that injured must have suffered acute mental and physical shock not only at the time of accident but even thereafter. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, accordingly a sum of ` 40,000/- is awarded to him under this head.
Pain and suffering:
(i) From the above, it can safely be culled out that petitioner must have also suffered acute pain and suffering not only at the time of accident but even thereafter. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 35,000/- is awarded to him under this head.
Loss of inconvenience/hardship/disappointment/mental stress etc:
(i) Since the petitioner was not able to walk without the help of walker for a long period, it can safely be culled out that petitioner must have faced lot of inconvenience, hardship and mental stress for considerable period. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 35,000/- is awarded to him under this head.MACT No 133/17 Page No. 14 of 22
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Loss of amenities of Life:-
(i) Since petitioner remained admitted in the hospital for about 5 days and under treatment for a long period, it can safely be culled out that petitioner must have suffered some loss of amenities life, though for a limited period. Considering the facts and circumstances of the case, a sum of ` 10,000/- is awarded to him under this head.
11. As discussed above, the overall compensation is tabulated as under:
NAME OF HEAD AMOUNT (In ` )
Loss of income 81,354/-
Medical Expenses 7,353/-
Conveyance charges 18,300/-
Special Diet 15,000/-
Attendant Charges 15,000/-
Mental and physical shock 40,000
Pain and suffering 35,000
Loss of inconvenience/hardship/ 35,000
disappointment/mental stress
Loss of Amenities of life 10,000/-
Total 2,57,007/-
Less 50% towards Contributory negligence 1,28,503.5/-
MACT No 133/17 Page No. 15 of 22
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Total 1,28,503.5/-
Round off :- ` 1,29,000/-
(Rupees One Lac and Twenty Nine Thousands Only)
(i) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of the DAR i.e. 09.02.2017 till realization.
12. DISBURSEMENT:-
(i) Petitioner's statement was recorded on 14.09.20188 regarding his financial status, in terms of clause 27 of Rajesh Tyagi & others Vs Jaibir Singh & others, FAO No. 842 of 2003 decided by Hon`ble High Court of Delhi on December 15, 2017, wherein he testified that he needs between ` 20,000/- to ` 25,000/- per months for his hold expenses.
(ii) In view of statement of petitioner on realization of award amount, a sum of ` 29,000/- plus entire interest be released to him from his share and the balance amount of ` 1 lac in terms of the directions contained in FAO No. 842/2003 dated December 15, 2017, shall be put in 2 fixed deposits in his name in a nationalized bank of equal amount of ` 50,000/- each for a period of six months and one year. Besides the above said amount, amount of FDRs on MACT No 133/17 Page No. 16 of 22 Shankar Yadav Vs. Ct. Datoon Konyak & ors.
maturity, shall automatically be transferred in his saving account maintained in a nationalized bank near the place of his residence without the facility of cheque book and ATM. It is clarified that the amount shall be released to him only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal. However, petitioner shall have liberty to seek the release of ` 12,900/- from the bank located within the jurisdiction of this Tribunal itself.
13. The above FDRs shall be prepared with the following conditions as enumerated by the Hon`ble High Court in MAC Appeal No. 422/2009, titled Sobat Singh vs. Ramesh Chandra Gupta & ors and FAO No. 842/2003 Rajesh Tyagi & ors vs. Jaivir Singh & ors decided on December 15, 2017:-
(i) The bank shall not permit any joint name(s) to be added in the saving account or fixed deposits account of the victim i.e. saving bank account(s) of the claimant shall be individual saving bank account and shall not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by the bank to the claimant.MACT No 133/17 Page No. 17 of 22
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(iii) The monthly interest be credited by Electronic Clearing System(ECS) in the saving bank account of the claimant near the place of her residence.
(iv) The maturity amount of the FDR be credited by the ECS in the saving bank account of the claimant near the place of her residence.
(v) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(vi) The concerned bank shall not issue any cheque book and/or debit card to claimant. However, in case the debit card and/cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimant so that no debit card be issued in respect of the account of claimant from any other branch of the bank. The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant shall produce the passbook with the necessary endorsement before the Tribunal for compliance.
14. In compliance of the directions given by Hon`ble High court in FAO No. 842/2003 dated December 15, 2017, Summary of the Award in the prescribed format- IV B is as under:-
SUMMARY OF AWARD
(i) Date of accident 10.09.2016 MACT No 133/17 Page No. 18 of 22 Shankar Yadav Vs. Ct. Datoon Konyak & ors.
(ii) Name of the injured Shankar Yadav (iii) Age of the injured 50 years (iv) Occupation of the Shop keeper injured (v) Income of the injured NA (vi) Nature of injury Grievous (vii) Medical treatment taken LN Hospital by the injured (viii) Period of 11.09.2016 to 15.09.2016 hospitalization (ix) Whether any permanent NA
disability? If yes, give details:
10. COMPUTATION OF COMPENSATION S.No. Heads Awarded by the Tribunal (IN `)
11. Pecuniary Loss:
(i) Expenditure on treatment 7,353/-
(ii) Expenditure on conveyance 18,300/-
(iii) Expenditure on special diet 15,000 (iv) Cost of nursing/attendant 15,000 (v) Loss of earning capacity NA (vi) Loss of income 81,354/- (vii) Any other loss which may require any
special treatment or aid to the injured for the rest of his life
12. Non-Pecuniary Loss:
(i) Compensation for mental and physical 40,000 shock
(ii) Pain and suffering 35,000 MACT No 133/17 Page No. 19 of 22 Shankar Yadav Vs. Ct. Datoon Konyak & ors.
(iii) Loss of amenities of life 10,000
(iv) Disfiguration 0
(v) Loss of marriage prospects NA
(vi) Loss of earning, inconvenience, 35,000
hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life etc.
(vii) Less contributory negligence 50% 1,28,503.5
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and NA nature of disability as permanent or temporary
(ii) Loss of amenities or loss of NIL expectation of life span on account of disability (iii) Percentage of loss of earning capacity 0 in relation to disability (iv) Loss of future Income-(Income x% 0 Earning Capacity x Multiplier) 14 Total Compensation (Rounded off) 1,29,000 Less 50% contributry negligence
15. INTEREST AWARDED 9%
16. Interest amount upto the date of award 20,571/-
1 year 09 months and 8 days
17. Total amount including interest 1,49,571/-
18. Award amount release As mentioned in para no. 12
19. Award amount kept in FDRs entire amount
20. Mode of disbursement of the award as mentioned in amount to the claimants (s) (Clause para No. 12
29)
21. Next date for compliance of the award. 18.12.2018 (Clause 31.) MACT No 133/17 Page No. 20 of 22 Shankar Yadav Vs. Ct. Datoon Konyak & ors.
LIABILITY TO PAY:-
14. Since offending vehicle was being driven by respondent no.1 and it was registered in the name of respondent no.2, both shall be jointly and severally liable to pay compensation to the petitioner.
(ii) In view of above, Issue No.2 is decided in favour of petitioner and against respondents.
RELIEF:
15. Since, the offending vehicle was insured with respondent no.2, respondent no.2 is directed to deposit deposit a sum of ` 1,29,000/- with interest @ 9 % per annum from the date of filing of DAR i.e. 09.02.2017 till realization with Nazir of this Tribunal within 30 days under intimation to the petitioner failing which the respondent No. 2 shall be liable to pay interest @ 12 % per annum for the period of delay beyond 30 days.
16. Driver and owner and are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioner/claimant and complete detail in respect of calculation of interest etc. within 30 days from today.
(i) A copy of this judgment be sent to Respondent No. 2 for compliance within the time granted.MACT No 133/17 Page No. 21 of 22
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(ii) Nazir is directed to place a report on record on 18.12.2018 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iii) In terms of clause 31 & 32 of the judgment titled Rajesh Tyagi & others Vs. Jaibir Singh & Ors. decided by Hon`ble High Court on December 12, 2014, copy of this award be sent to the concerned court of Ld. Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
(iv) File be consigned to Record Room.
Announced in open court
on this 17st November, 2018 (PAWAN KUMAR JAIN)
Judge, MACT-1 (Central),
PAWAN
Digitally signed by
PAWAN KUMAR JAIN THC, Delhi/v
KUMAR JAIN Date: 2018.11.17
14:53:21 +0530
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