Delhi District Court
Babban Singh vs Sh. Pramod Kumar (Driver) on 7 January, 2021
IN THE COURT OF Dr. KAMINI LAU : PO (MACT)01
(CENTRAL) TIS HAZARI COURTS, DELHI
MACT No. 754/2019
CNR No. DLCT010136852019
Babban Singh
S/o Sh. Ram Lagan Singh
R/o T168, Near Sanatan Dharam Mandir,
Baljeet Nagar, Delhi
......Petitioner
Versus
1. Sh. Pramod Kumar (Driver)
S/o Sh. Ram Kishan Ram
R/o E96, Gali No. 21,
Baljeet Nagar, Patel Nagar,
Delhi
2. Sh. Jagdish Chandra (Owner)
S/o Sh. Tilaram
R/o E96, Gali No.21, Baljeet Nagar,
Patel Nagar, Delhi
3. Bharti AXA General Insurance Company Ltd. (Insurer)
7th Floor, Mercantile House,
15 K.G. Marg, Cannaught Place,
Delhi - 110008
......Respondents
Date of filing of DAR: 01.10.2019
Arguments heard on: 10.12.2020
Date of passing of Award: 07.01.2021
Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 1 of 33
Digitally signed by KAMINI LAU
KAMINI LAU Date: 2021.01.07 16:32:11
+0530
A W A R D:
(1) The present Detailed Accident Report (DAR) has been filed on
01.10.2019 and has been registered as Motor Accident Claim Petition
in respect of an accident which took place on 08.06.2019 at 6:10 PM at
Block31, 32, 33 & 34 Chowk, Sadak Sareaam, West Patel Nagar,
Delhi resulting into Grievous Injuries to the petitioner Babban Singh.
BRIEF FACTS:
(2) The Brief Facts as emerged from the DAR are that on 08.06.2019 at about 6:10 PM the injured/ petitioner was going towards his home on his bicycle from Ramjas Ground when at the Chowk of 31, 32, 33 and 34 Block, West Patel Nagar, Delhi, the respondent no.1 Pramod i.e. the driver of Scooty make Honda Activa bearing registration No. DL10SW0638 came driving the said scooty at a very high speed, in a rash, negligent manner and in disregard of traffic rules and hit the petitioner. As a result of the accident, the petitioner fell down from his bicycle and he was taken to Sardar Vallabh Bhai Patel Hospital from where he was referred to Lady Harding Medical College. According to the petitioner, he suffered injuries all over the body and also suffered Fracture of neck of Right Femur which was opined to be Grievous in nature. The case of the petitioner is that he remained admitted in the Hospital from 08.06.2019 to 21.06.2019 as an indoor patient and thereafter as an Outdoor patient and on account of the injuries he was unable to stand and walk properly even at the time of his discharge from Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 2 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:32:21 +0530 the hospital.
(3) According to the petitioner, at the time of accident he was working as a Delivery Man of Gas Cylinders with M/s. Deepak Gas Service and was earning Rs.14,000/ to Rs.15,000/ per month as commission for supply of gas cylinder. The case of the petitioner is that since he was not able to stand and walk properly w.e.f. June 2019 to September 2019, he had to keep an attendant whom he had paid Rs.5,000/ per month. The petitioner is claiming a sum of Rs.20,000/ towards expenditure on treatment; Rs.5,000/ towards conveyance charges; Rs.30,000/ towards Special Diet; Rs.25,000/ towards attendant charges; Rs.1,00,000/ for loss of earning capacity; Rs.1,12,000/ towards loss of Income; Rs.25,000/ for expenditure on future treatment; Rs.30,000/ as compensation for mental and physical shock; rs.1,00,000/ towards pain and suffering; Rs.70,000/ for loss of amenities of life and Rs.50,000/ towards loss of earning, inconvenience, hardships etc. The petitioner has estimated the compensation on various accounts to the tune of Rs.5,67,000/ (Rupees Five Lacs, Sixty Seven Thousand only).
(4) The respondent no.1 namely Pramod Kumar has filed a Reply/ Written Statement wherein it is averred that on 08.06.2019 he was going to purchase medicines from the nearby medical store for his nephew who was seriously ill and the petitioner was coming rashly from the opposite direction (TPoint) on his bicycle and was in a hurry to deliver the gas cylinders and immediately rook right turn at chowk. It is further Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 3 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:32:29 +0530 averred that the respondent no.1 blew the horn on which the petitioner suddenly jitter and lost his balance and fell down on road with his heavy delivery bicycle and sustained injuries. It is also averred that the respondent no.1 took the petitioner to hospital where he was given treatment. It is averred that the respondent no.1 has been falsely implicated in the present case despite the fact that he was not driving the scooty bearing No. DL10SW0638 in a rash and negligent manner. It is also averred that the scooty was insured with Bharti AXA General Insurance Company vide Policy No. FTW/SA672245/13/07/005985 from 12.07.2018 to 11.07.2019 and hence, the liability to pay compensation, if any, falls on the Insurance Company. (5) In so far as the respondent no.2 Jagdish Chandra is concerned, no reply has been filed by him. However, on 08.01.2020 Sh. Vipin Raturi Advocate for the respondents no.1 and 2, has adopted the reply/ written statement filed by the respondent no.1 for the respondent no.2. (6) The Respondent No.3 i.e. Bharti AXA General Insurance Co. Ltd. has also filed a Reply/ Written Statement wherein the Insurance Company has conceded that the Two Wheeler bearing No. DL10SW 0638 was insured at the relevant time i.e. 08.06.2019 vide Policy No. FTW/SA672245/13/07/005985 in the name of Jagdish Chandra on certain terms and conditions and the liability of the Insurance Company is subject to the said terms and conditions of the insurance policy. It is further averred that as per the Chapter 5. 11(4) of the Claims Tribunal Agreed Procedure, permission under Section 170 of Motor Vehicles Act be granted to the Insurance Company to contest the case on all Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 4 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:32:37 +0530 grounds available to the alleged driver and owner without prejudice to Section 149 (2) of the Moor Vehicle Act, in case the other respondent/ driver and owner of Two Wheeler No. DL10SW0638 failed to contest the claim of there is collusion between the person making the claim and the person against whom the claim is filed.
(7) It is further averred that there is a delay of four days in lodging the FIR and the IO of the case did not find any eye witness either at the spot of accident or at the hospital where the injured was taken after the accident. It is also averred that the alleged offending vehicle was not involved in the accident and has been falsely involved in the accident. The case of the Insurance Company is that as per the DAR, the driver of the offending vehicle was not holding any driving license at the time of the accident and was chargesheeted under Section 3/181 of the Motor Vehicles Act. It is averred that there is a willful violation of the terms and conditions of the Insurance Policy and provisions of the Motor Vehicles Act on the part of driver and insured of the offending vehicle and hence, the Insurance company is unable to give any legal offer for settlement of the claim and denied its liability.
ISSUES:
(8) On the basis of the pleading of the parties, vide order dated 08.01.2020 this Court had settled the following issues: i. Whether the petitioner/ injured is guilty of contributory negligence? (OPRs) Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 5 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:32:46 +0530 ii. Whether the petitioner had received Grievous Injuries in an accident which took place on 08.06.2019 at 6:10 PM, Block 31, 32, 33 and 34 Ka Chowk, Sadak Sareaam, West Patel Nagar, Delhi? (OPP) iii. Whether the petitioner/ injured is entitled to Compensation? If yes, to what extent? (OPP) iv. Relief.
EVIDENCE:
(9) In order to prove his case the petitioner Babban Singh has examined himself as his sole witness as PW1 whereas the respondent no.1 Pramod Kumar and respondent no.2 Jagdish Chandra have examined themselves as R1W1 and R2W1 respectively. Further, the Insurance Company has examined its Executive Legal Sh. Prakhar Singh as R3W1. For the sake of convenience the testimonies of all the witnesses examined by the parties are put in a tabulated form as under:
S. Witness Deposition
No.
Petitioner's Evidence:
1. Babban Singh PW1 Babban Singh is the injured / petitioner in the
(PW1) present case who in his examination in chief by way of
affidavit Ex.PW1/A has corroborated the version of Police in the DAR. He has placed his reliance upon the following documents:
1. DAR running into Page 1 to 111 which is collectively Ex.PW1/1.
2. Copy of medical bills running into page 6 pages which are collectively Ex.PW1/2 (OSR).
3. Copy of XRay running into four pages which are Ex.PW1/3 (OSR).
Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 6 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:32:56 +0530
4. Copy of Adhar card and Joint Declaration of the Member & Employer running into six pages, which are collectively Ex.PW1/4 (OSR).
5. Copy of prescription slip running into two pages which is collectively Ex.PW1/5 (OSR).
6. Photocopy of ESIC Card which is Mark PX1.
In his cross examination by the Ld. Counsel for the respondents, the witness has deposed as under: That he is 50 years old.
That he has submitted is Aadhar card to prove his date of birth.
That the date of birth mentioned in the Aadhar card as 19.07.1964 is correct according to which his age as on date comes to 55 years six months and is correct.
That he was working in supply of gas cylinder at Deepak Gas Agency.
That he was working a supplier of gas cylinder for the last about 20 years.
That he was working on commission and his monthly commission was about Rs.14,000/ to Rs.15,000/ per month.
That he has not submitted any documents regarding his income.
That he has no knowledge if TDS is being deducted on his commission income.
That he has a PAN card but he has not submitted PAN card in the court.
That he never filed income tax return.
That he used to supply the gas cylinder on a bicycle which he owned.
That at a time three cylinders can be carried in the bicycle.
That his duty hours were between 9:00 AM to 5:00 PM.
That on the date of accident, he was on his bicycle and had gone to bring his grandson from the play ground i.e. Ramjas ground.
That the offending scooter was coming from front side and while he was taking turn towards right side, the scooter hit him.
Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 7 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:33:05 +0530
That his bicycle was totally damaged and is still lying in the police station.
That after the accident his cycle was taken to the police station after two days by the police officials. That till two days his cycle remained near the spot at Aggarwal Godown whose owner is known to him. That he was rushed to the Hospital by the driver of the offending vehicle himself on the same scooter. That he has denied that the accident had taken place on account of his negligence as he suddenly turned his cycle towards left side without seeing the scooter of the respondent no.1.
That he has denied that the accident was not caused by the offending scooter and he himself fell on the ground and received the injuries.
That the offending scooter did not hit him directly but hit his cycle which he was plying.
That he has not placed on record any document to show the expenses incurred by him on his special diet.
That he does not have any bills of the physiotherapist.
That he received the treatment at Lady Harding Hospital.
That he had received a sum of Rs.1,50,000/ from ESIC but the same was towards his Provident Funds and not qua the compensation.
That he has denied that he has already received the compensation of Rs.1,50,000/ from ESIC.
That he has not been paid any wages during the period he remained at home on account of the accident.
That he is not having any insurance from his employer.
That he has not been paid anything by his employer. That the affidavit of evidence Ex.PW1/A has been prepared by his counsel and he signed the same. Respondents Evidence:
2. Pramod Kumar R1W1 Pramod Kumar is the respondent no.1/ driver of the (R1W1) offending vehicle who in his examination in chief by way of affidavit Ex.R1W1/A has corroborated what he has earlier stated in his Reply/ Written Statement. In addition to the Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 8 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:33:13 +0530 same, he has stated that the petitioner had received a total sum of Rs.2.5 Lacs from Employee State Insurance Corporation (ESIC) but the petitioner deliberately hide his fact from the Court. According to the respondent no.1, he had filed an RTI application in the office of Employee State Insurance Corporation (ESIC) in this regard.
He has placed his reliance upon the following documents:
1. Photocopy of his Aadhar Card which is Ex.R1W1/1.
2. Copy of the application under the RTI Act is Ex.R1W1/2.
In his cross examination by the Ld. Counsel for the petitioner, the witness has deposed as under: ➢ That he knew the contents of his affidavit. ➢ That his date of birth is 12.06.2000.
➢ That the DAR filed by the Investigating Officer is true and correct, which is Ex.R1W1/P1 (running into 111 pages).
➢ That he does not remember as to who had informed the police regarding the accident on the very same day.
➢ That he has denied that the present case has been reported to the police after four days of the accident in question.
➢ That at the time of accident, the speed of the scooty which was driven by him was around 20 KMPH.
➢ That he has denied that the accident in question had taken place due to his negligence or that due to his rash and negligence driving, the petitioner sustained grievous injuries.
➢ That he has denied that rim of the cycle of the petitioner was completely damaged due to said accident and rash and negligence driving on his part.
➢ That the statement recorded by the Investigating Officer on 12.06.2019 bears his signatures at point A.
3. Jagdish PW2 Jagdish Chandra is the respondent no.1 / owner of Chandra the offending vehicle who in his affidavit of evidence (R2W1) Ex.R2W1/A has stated as under:
Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 9 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:33:21 +0530
1. That he is a handicapped person and the Honda Scooty bearing No. DL10SW0638 is in his name.
2. That the said scooty was insured with Bharti AXA General Insurance Co. Ltd. vide Policy Certificate No. FTW/SA672245/13/07/005985.
3. That on 08.06.2019 he gave his scooty to his cousin brother i.e. respondent no.1 for purchasing medicine to his newly born baby.
4. That he (respondent no.2) was not aware that the respondent no.1 has no driving license.
5. That he (respondent no.2) is not liable to pay any compensation to the petitioner since in the hospital the petitioner and his family members were very thankful but after four days the petitioner lodged a false complaint and falsely implicated the respondent no.1 in the present case.
He has placed his reliance upon the photocopy of his Aadhar Card which is Ex.R2W1/1; Registration Certificate of his scooty which is Ex.R2W1/2 and Insurance Cover which is Ex.R2W1/3.
In his crossexamination by the Ld. Counsels for the petitioner and the respondent no.3, the witness has deposed on the following aspects:
➢ That he has denied that he is liable to pay compensation to the complainant/ petitioner. ➢ That he has denied that the respondent no.1 was driving the scooty in a rash and negligent manner. ➢ That respondent no.1 is his cousin brother, ➢ That the respondent no.1 was not holding any driving license as on the date of accident.
4. Prakhar Singh R3W1 Prakhar Singh is the Executive legal of the (R3W1) Insurance Company who in his examination in chief by way of affidavit Ex.R3W1/A has deposed on the following aspects:
1. That the Insurance Company served upon the respondents no.1 and 2 being driver and owner of vehicle No. DL10SW0638, a notice under Order 12 Rule 8 CPC through Sh. Vijay Gupta Gupta Advocate, office copy of which notice is Ex.R3W1/1, postal receipts are Ex.R3W1/2 & Ex.R3W1/3.
Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 10 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:33:29 +0530
2. That the said notice has not been replied or complied with by the respondents no.1 and 2.
3. That the certified true copy of the Insurance Policy is Ex.R3W1/4.
4. That as per the DAR, the driver of the offending vehicle was not holding any driving license as on the date of the accident i.e. 08.06.2019 and hence, the police challaned the driver under Section 3/181 of Motor Vehicles Act.
5. That there is willful violation of terms and conditions of the Insurance Policy and provisions of Motor vehicles Acts/ Rules on the part of the owner/ insured as well as the driver and the Insurance Policy is not liable to pay any compensation to the petitioners In his crossexamination by the Ld. Counsel for the respondents no.1 and 2 the witness has denied that the Insurance Company has checked the Driving License at the time of issuance of the Insurance Policy.
FINDINGS & OBSERVATIONS:
(10) I have heard the arguments advanced before me by the Ld. Counsels for the petitioner and the respondents. I have also gone through the written memorandum of arguments filed by the parties and also given my thoughtful consideration to their contentions. My findings on the various issues are under:
Issue No.1: Whether the petitioner/ injured is guilty of contributory negligence? (OPRs) Issue No.2: Whether the petitioner had received Grievous Injuries in an accident which took place on 08.06.2019 at 6:10 PM, Block 31, 32, 33 and 34 Ka Chowk, Sadak Sare aam, West Patel Nagar, Delhi? (OPP) Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 11 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:33:38 +0530 (11) Onus of proving the issue no.1 was upon the respondents no.1 and 2 and that of the issue no.2 upon the petitioner. (12) The case of the respondents no.1 and 2 is that the petitioner Babban Singh was himself guilty of contributory negligence. It is alleged that on the date of accident the petitioner Babban Singh was in a hurry and was paddling his delivery bicycle with gas cylinders and without giving any signal immediately took a right turn at the crossing (chowk). According to the respondents, the respondent no.1 who was coming straight way blew horn and immediately applied brake on which the petitioner suddenly got jitter and lost his balance and fell down on the road with heavy delivery cycle and received injuries. It is also the case of the respondents that despite the negligence of the petitioner, the respondent no.1 picked up the petitioner with the help of other persons and took the petitioner/ injured to the nearby hospital and one of the public person, who knew the complainant, took the gas cylinders and bicycle of petitioner in his possession.
(13) On the other hand, the case of the petitioner is that the accident in question had taken place only on account of the rash and negligence of the respondent no.1 Pramod Kumar who was driving the scooty bearing No. DL10SW0638. According to the petitioner, the respondent no.1 came driving the scooty in a very high speed and hit him causing grievous injuries to him.
(14) I have considered the rival contentions and also gone through the testimonies of the various witnesses examined by the parties. At the very Outset I may observe that the present case has been registered on Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 12 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:33:46 +0530 the basis of the statement of injured Babban Singh who informed the Investigating Officer that on 08.06.2019 at about 6:10 PM while he reached at the crossing/ chowk of 31, 32, 33 and 34 Block, West Patel Nagar, the driver of scooty bearing No. DL10SW0638 came from the front side and while driving the said scooty in a rash and negligent manner, hit him and caused grievous injuries to him. The injured had named the respondent no.1 Pramod Kumar as the person who was driving the offending vehicle at the time of accident. (15) Coming now to the aspect of rashness and negligence, in order to discharge the upon him the petitioner Babban Singh has examined himself as PW1 whereas the respondents no.1 Pramod Kumar and respondent no.2 Jagdish Chandra have examined themselves as R1W1 and R2W1 respectively. In so far as the petitioner Babban Singh is concerned, he has specifically deposed in his crossexamination that the offending scooter was coming from front side and while he (petitioner) was taken towards right side, the scooter hit him. According to the petitioner Babban Singh (PW1) the offending scooter did not hit him directly but hit his cycle which he was plying. He has denied the suggestion that the accident had taken place on account of his negligence as he suddenly turned his cycle towards left side without seeing the scooter of the respondent no.1. He has also denied the suggestion that the accident was not caused by the offending scooter and he himself fell on the ground and received the injuries. (16) In so far as the respondent no.1 Pramod Kumar is concerned, after filing of the DAR his statement under Section 165 of Evidence Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 13 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:33:54 +0530 Act was recorded wherein he has admitted that he was driving a Scooty Honda Active bearing No. DL10SW0638 on 08.06.2019 at 6:10 PM.
He has also admitted that his scooty was involved in the said road accident but the accident did not occur on account of any fault on his part. He has further admitted that he was not carrying any Driving License on the said date.
(17) Further, in his crossexamination the respondent no.1 Pramod Kumar (R1W1) has deposed that his date of birth is 12.06.2000. He has admitted that the DAR filed by the Investigating Officer is true and correct which is Ex.R1W1/P1. According to him, at the time of accident, the speed of his scooty was around 20 KMPH. He has also admitted that he was not having any valid driving license to drive the scooty as on the date of accident.
(18) Also, the respondent no.2 Jagdish Chandra (R2W1) has in his crossexamination deposed that the respondent no.1 Pramod Kumar who is his cousin brother was not holding any driving license as on the date of accident.
(19) It is evident from the above that the respondent no.1 Pramod Kumar has admitted that he was driving the scooty bearing No. DL 10SW0638 on the date of accident and was not having any driving License at that time. Since the respondent no.1 was not having a Driving License at the time of the accident, hence there is a presumption that he was not aware of the driving rules.
(20) Further, I have gone through the Mechanical Inspection Reports filed along with the DAR. The Mechanical Inspection Report of the Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 14 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:34:03 +0530 offending vehicle i.e. Honda Activa Scooty bearing No. DL10SW 0638 shows that there were following fresh damages:
1. Front head light scratched/ wiser scratched.
2. Left side lever/ Muthey/ pipe beading scratched.
3. Left side rug board dent/ scratched.
(21) In so far as the bicycle of the petitioner/ injured is concerned, there were following fresh damages on the same:
1. Front wheel rim pressed/ damaged and front spokes damaged.
2. Front mud guard dented.
3. Front fork pressed/ damaged.
(22) The above Mechanical Inspection Reports confirm that there was a collision between the scooty of the respondent no.1 and bicycle of the petitioner in which the scooty hit the front side of bicycle of the petitioner. This belies the claim of the respondents that the petitioner Babban Singh fell down on the road after loosing balance of his bicycle and received injures as he was carrying heavy gas cylinders. The respondent no.1 also claimed that the speed of his scooty was about 20 KMPH. However, the Mechanical Inspection Report of the accidental bicycle shows that due to the impact the front wheel rim and front fork of the bicycle of the petitioner was pressed/ damaged and reflects the rashness and negligence so attributed to the respondent no.1. (23) Now coming to the aspect of injuries received by the petitioner Babban Singh, it is evident from the record that after the accident, the Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 15 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:34:11 +0530 respondent no.1 Pramod Kumar himself took the petitioner to nearby hospital i.e. Sardar Vallabh Bhai Patel Hospital from where he was referred to Lady Harding Medical College. The MLC prepared by the doctors at Lady Harding Medical College is attached along with the DAR according to which the patient was referred from SVBPH with alleged history of Road Traffic Accident (hit by bike) at 33 Block, Patel Nagar at 6:30 PM on 08.06.2019. On local examination, an abrasion on right ankle and difficulty in movement of right leg was found. As per the Xray report the petitioner/ injured Babban Singh had suffered fracture of neck of right femur for which he was operated upon. Further, as per the Orthopedic opinion, as per clinical examination and available radiologist report, the injury seems to be Grievous. (24) This being the background, I hereby hold that the petitioner Babban Singh had received grievous injuries in an accident which took place on 08.06.2019 at 6:10 PM, Block 31, 32, 33 and 34 Ka Chowk, Sadak Sareaam, West Patel Nagar, Delhi on account of rashness and negligent driving of scooty bearing No. DL10SW0638 driven by the respondent no.1 Pramod Kumar.
(25) Both the issues are accordingly decided in favour of the petitioner and against the respondents.
Issue No.3: Whether the petitioner/ injured is entitled to Compensation? If yes, to what extent? (OPP) (26) Onus of proving this issue was upon the petitioner Babban Singh. The case of the petitioner is that as a result of the accident, he Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 16 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:34:20 +0530 had suffered grievous injuries and he is undergoing treatment for the same. According to the petitioner, he has not been able to walk properly and is not able to work for his earning and would be able to work again only after the Rod put in his hip is removed after the operation. The petitioner is claiming a sum of Rs.20,000/ towards expenditure on treatment; Rs.5,000/ towards conveyance charges; Rs.25,000/ towards physiotherapy and attendant; Rs.1,00,000/ towards the loss of future earning capacity; Rs.25,000/ towards future treatment and Rs.2,50,000/ towards non pecuniary damages including mental shock and agony, pain and suffering and loss of amenities of life. In this regard, the petitioner is placing his reliance upon the medical documents attached along with the DAR and also the medical bills. (27) On the other hand, the case of the respondents no.1 and 2 is that they belong to Uttrakhand from a poor family. Ld. Counsel for the respondents no.1 and 2 has argued that the respondent no.1 had come to Delhi for searching a job and was residing with his cousin brother i.e. respondent no.2 who is also doing the job work of manufacturing of mobile charges at home and earning his livelihood on daily basis. It is argued that on the date of accident, the scooty bearing No. DL10SW 0638 was duly insured with Bharti AXA General Insurance Company Ltd. (Respondent No.3). Ld. Counsel has pointed out that the respondent no.2 Jagdish Chandra is ready to pay a lumpsum compensation to the tune of Rs.50,000/ to the petitioner which amount he has already deposited in the form of an FDR and is lying on the court record.
Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 17 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:34:27 +0530 (28) In so far as the Respondent No.3 Bharti AXA General Insurance
Company Ltd. is concerned, they have admitted that the offending vehicle bearing No. DL10SW0638 was duly insured with them vide Policy No. FTW/SA672245/13/07/005985 but no legal offer for settlement has been given by the insurance company on the ground that the respondent no.1 (driver of the offending vehicle) was not having any driving license at the time of the accident. (29) I have considered the arguments advanced before me and the evidence on record. I may note that in his crossexamination by the Ld. Counsel for the respondents, the petitioner/ injured Babban Singh (PW1) has deposed that he was working as supplier of gas cylinders and his monthly income was about Rs.14,000/ to Rs.15,000/ per month but he has not filed any document to show his income. According to the petitioner, he never filed any income tax return. He has further admitted that he has not placed on record any document to show the expenses incurred by him on his special diet. The petitioner has also admitted that he does not have any bills of the physiotherapist. (30) Here, I may note that the respondent no.1 Pramod Kumar in his examination in chief by way of affidavit claimed that the petitioner had already received a sum of Rs.2.50 Lacs from Employee State Insurance Corporation (ESIC). In this regard, the respondent no.1 has placed his reliance upon the RTI Application which is Ex.R1W1/2. In so far as the petitioner Babban Singh is concerned, he has admitted having received a sum of Rs.1,50,000/ from ESIC but according to him the said amount was towards his Provident Fund and not qua the compensation.
Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 18 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:34:37 +0530 (31) I have gone through the document Ex.R1W1/2 which is a reply
dated 20.02.2020 sent by Central Public Information Officer, ESIC to Sh. Vipin Raturi Advocate according to which his application under RTI Act has been transferred to SubDivisional Office, Okhla. There is no definite response from the ESIC to the effect that any amount towards compensation has been given to the petitioner/ injured Babban Singh nor any witness has been examined by the respondents from ESIC to prove this aspect. Hence, I hold that the respondents have not been able to prove that the petitioner has already received any compensation from ESIC.
(32) Coming first to the medical expenses incurred by the petitioner. He has placed his reliance upon the medical bills details of which are as under:
Sr. Details of Bill Date Exhibit No. Amount in Rs. No.
1. Medicines bill of Swastik 12.10.2019 Ex.PW1/2 471/ Medicine Palace
2. Medicines bill of Swastik 31.10.2019 Ex.PW1/2 1,171/ Medicine Palace
3. Medicines bill of Swastik 16.10.2019 Ex.PW1/2 783/ Medicine Palace
4. Krishna Medisurg 18.06.2019 Ex.PW1/2 7,875/
5. Krishna Medisurg 16.10.2019 Ex.PW1/2 600/
6. New Life Labs 14.01.2020 Ex.PW1/2 500/ Total 11,400/ (33) This being the background, I hold that the petitioner is entitled to the amount of Rs.11,400/ towards medical expenses.
Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 19 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:34:43 +0530 (34) Now coming to the aspect of Income of the injured, the petitioner Babban Singh claims that he was working as a delivery man of Gas Cylinders with M/s. Deepak Gas Agency and was earning about Rs.14,000/ to Rs.15,000/ per month. In this regard, I may observe that the petitioner Babban Singh has not placed on record any document showing his employment with M/s. Deepak Gas Agency or that he was earning Rs.14,000/ to Rs.15,000/ per month. (35) The petitioner has admitted in his crossexamination that his date of birth mentioned in the Aadhar Card as 19.07.1964 is correct, according to which his age as on date of his crossexamination is 55 years six months. Therefore, as on the date of accident i.e. 08.06.2019 the petitioner was about 54 years of age. Also, there is no document on record to show the education qualification of the petitioner/ injured Babban Singh. Further, there being no document of employment and income of the injured/ petitioner, the minimum wages for unskilled worker as on the date of accident is taken as income of the petitioner i.e. Rs.14,468/ per month.
(36) In so far as the Special Diet expenses, Conveyance Charges and Attendant Charges are concerned, it is an admitted case of the petitioner that he has not placed on record any document showing any expenses towards the same.
(37) Further, in so far as the aspect of Disability of the petitioner is concerned, I may observe that though the petitioner claims that due to the accident he has not been able to walk properly yet there is nothing Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 20 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:34:50 +0530 on record to show that the petitioner had suffered any permanent disability on account of the accident in question. (38) Accordingly, keeping in view the facts and circumstances, the material on record, and the settled principals and guidelines governing the injury cases like the present one, the compensation is being derived in the present case as under:
NAME OF HEAD AMOUNT (in Rupees)
Expenditure on treatment 11,400/
Expenditure on Conveyance 5,000/
Expenditure on Special Diet 5,000/
Loss of income (14,468 X 3) 43,404/
Mental, Physical Shock, Pain & Sufferings 25,000/
Total 89,804/
Round off: Rs.90,000/
(39) Since, interest @ 9% per annum was awarded by the Hon'ble
Apex Court in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy reported in 2012 ACJ 48 (SC), it is held that claimant shall be entitled to interest @ 9% per annum from the date of filing of DAR i.e. from 01.10.2019 till realization of the amount.
Disbursement:
(40) The Financial Statement of the petitioner Babban Singh has been recorded according to which his monthly expenses are about Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 21 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:34:57 +0530 Rs.15,000/.
(41) This being the background and keeping in view the financial statement of the petitioner, I hereby direct that on realization of the award amount, a sum of Rs.30,000/ plus entire interest amount be released to the petitioner and the balance amount of Rs.60,000/ shall be put in Six Monthly fixed deposits in his name in MACAD account in equal amount of Rs.10,000/ each for a period of 01 month to 06 months respectively, with cumulative interest, in terms of the directions contained in FAO No. 842/2003 dated December 07, 2018. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank without the facility of cheque book and ATM card. 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, the petitioner Babban Singh shall have the liberty to seek the release of Rs.30,000/ plus entire interest amount from the bank located within the jurisdiction of this Tribunal itself.
(42) The above FDRs shall be prepared with the following conditions as enumerated by the Hon'ble Delhi High Court in FAO No. 842/2003 under the title Rajesh Tyagi & Ors. Vs. Jaivir Singh & Ors.
decided on December 07, 2018:
Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 22 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:35:05 +0530
(i) The bank shall not permit any joint name to be added in the saving account or fixed deposit accounts of the claimants i.e. saving bank accounts of the claimants shall be an individual saving bank account and 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 bank to the claimants.
(iii) The maturity amount of the FDRs be credited by the ECS in the saving bank account of the claimant near the place of their residence.
(iv) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(v) The concerned bank shall not issue any cheque book and/or debit card to claimants. However, in case the debit card and/or 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 claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank.
(vi) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque books and/or debit card have been issued and shall not be issued without the permission of the Court and the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 23 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:35:12 +0530 (43) In compliance of the directions given by Hon'ble High court in FAO No. 842/2003 dated December 07, 2018, Summary of the Award in the prescribed FormatIV B is as under: SUMMARY OF AWARD:
1. Date of Accident: 08.06.2019
2. Name of the Injured: Babban Singh
3. Age of the Injured: 54 Years
4. Occupation of the Injured: Cylinder Deliveryman
5. Income of the Injured: Rs.14,468/ per month (Minimum Wages)
6. Nature of Injury: Grievous
7. Medical Treatment taken by Lady Harding Medical College the injured:
8. Period of Hospitalization: 08.06.2019 to 21.06.2019
9. Whether any permanent No disability? If yes, give details:
10. COMPUTATION OF COMPENSATION Sr. Heads Awarded by the No. Claims Tribunal
11. Pecuniary Loss:
(i) Expenditure on Treatment (as per 11,400/ medical bills)
(ii) Expenditure on Conveyance (no 5,000/ document) Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 24 of 33 KAMINI Digitally signed by KAMINI LAU LAU Date: 2021.01.07 16:35:19 +0530
(iii) Expenditure on Special Diet (no 5,000/ document)
(iv) Cost of Nursing/ attendant Nil
(v) Loss of earning capacity Nil
(vi) Loss of income for three months (no 14,468 X 3 = 43,404/ salary slip and hence as per minimum wages)
(vii) Any other loss which may require any Nil special treatment or aid to the injured for the rest of his life
12. Non Pecuniary Loss
(i) Compensation for mental and physical 25,000/ shock
(ii) Pain and Sufferings
(iii) Loss of amenities of life Nil
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life etc.
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and Nil nature of disability as permanent or temporary
(ii) Loss of amenities or loss of expectation Nil of life span on account of disability
(iii) Percentage of loss of earning capacity in Nil relation to disability
(iv) Loss of future income - (income x % Nil earning capacity x Multiplier) Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 25 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:35:26 +0530
14. TOTAL COMPENSATION 89,804/ (Round off: 90,000)
15. INTEREST AWARDED 9%
16. Interest amount upto the date of award 8,929/ (One year, two months and seven days)
17. Total amount including interest 98,929/
18. Award amount released As mentioned in para No.41
19. Award amount kept in FDRs As mentioned in para No.41
20. Mode of disbursement of the award As mentioned in amount of the claimant(s) para No.41
21. Next date for compliance of the award 12.02.2021 Liability:
(44) In so far as the liability to pay the award amount is concerned, the case of respondent no.3 Bharti AXA General Insurance Co. is that the driver of the offending vehicle i.e. respondent no.1 Pramod Kumar was not holding any driving license on the date of accident i.e. 08.06.2019 and hence, the Investigating Officer had challaned the driver under Section 3/181 of Motor Vehicles Act. Ld. Counsel for the respondent no.3 has argued that since there is a willful violation of terms and conditions of the Insurance Policy and provisions of Motor Vehicles Act/ Rules on the part of the owner/ insured as well as the driver and hence, the Insurance Company is not liable to pay any compensation to the petitioner.
Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 26 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:35:34 +0530 (45) In this regard, the Insurance Company has examined its Executive Legal Sh. Prakhar Singh as R3W1 who in his examination in chief by way of affidavit Ex.R3W1/A has stated that the Insurance Company had served upon the respondents no.1 and 2 being driver and owner of vehicle No. DL10SW0638, a notice under Order 12 Rule 8 CPC through Sh. Vijay Gupta Gupta Advocate, office copy of which notice is Ex.R3W1/1, postal receipts are Ex.R3W1/2 & Ex.R3W1/3 which notice has not been replied or complied with by the respondents no.1 and 2.
(46) I have considered the arguments made before me and the documents on record. As per the Detail Accident Report, during investigations it was found that the respondent no.1 Pramod Kumar was driving the offending vehicle i.e. Scooty bearing No. DL10SW0638 without any Driving License. In fact, a Kalandra under Section 5/180 of Motor Vehicles Act was prepared against the respondent no.2 Jagdish Chandra being the owner of the offending vehicle Jagdish Chandra and even the provisions of Section 3/181 of Motor Vehicles Act were added against the respondent no.1 Pramod Kumar being the driver of the offending vehicle. Even otherwise, it is an admitted case of the respondent no.1 Pramod Kumar that he was not having any Driving License at the time of accident.
(47) From the above it becomes crystal clear that the respondent no.1 Pramod Kumar was not holding a valid and effective driving license to drive the offending vehicle which tantamounts to violation of the terms Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 27 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:35:41 +0530 and conditions of the Insurance Policy. Being the driver the respondent no.1 Pramod Kumar was not supposed to drive the scooty without a valid and effective driving license. The respondent no.2 Jagdish Chandra being the owner of the offending vehicle, was not supposed to allow the respondent no.1 to drive the offending vehicle. Accordingly, the insurance Company is entitled for recovery rights qua them but after satisfying the award amount.
(48) Since the offending vehicle was being driven by respondent no.1 Pramod Kumar and it was registered in the name of the respondent no.2 Jagdish Chandra whereas the same was insured with respondent no.3 Bharti AXA General Insurance Co. Ltd. all shall be jointly and severally liable to pay compensation to the petitioner. However, after satisfying the award, the Insurance Company shall have a right to recover the award amount from the respondents no.1 and 2 during execution proceedings without filing a separate civil suit.
(49) Issue No.3 is accordingly decided in favour of the petitioner and against the respondents.
RELIEF:
(50) Since the offending vehicle was insured with the respondent no.3 Bharti AXA General Insurance Co. Ltd. therefore, the respondent no.3 is directed to deposit a sum of Rs.90,000/ with interest @ 9% per annum from the date of filing of DAR i.e. from 01.10.2019 till realization of the amount with the Civil Nazir of this Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 28 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:35:49 +0530 Tribunal within 30 days under intimation to the petitioners failing which insurance company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
(51) The Driver and Owner of the offending vehicle and insurer 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 petitioners/ claimants and complete detail in respect of calculation of interest etc. within 30 days from today.
(52) A copy of this judgment be sent to the respondent No.3 Bharti AXA General Insurance Co. Ltd. for compliance within the time granted. The Respondent No.3 Bharti AXA General Insurance Co. Ltd. is further directed to give intimation of deposit of the compensation amount to the claimant and shall file a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount within 15 days of the deposit with the interest upto date of intimation of deposit to the claimant with a copy to his counsel Sh. Pankaj Kumar Mishra Advocate, Chamber No.41, Civil Wing, Tis Hazari Courts, Delhi 110054, Mob. No. 9350045273.
(53) Civil Nazir is directed to place a report on record on 12.02.2021 in the event of nonreceipt/deposit of the compensation amount within the time granted.
(54) In terms of clause 31 & 32 of the judgment titled Rajesh Tyagi & others Vs. Jaibir Singh & Ors. decided by Hon'ble High Court on Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 29 of 33 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.
(55) File be consigned to Record Room.
Digitally signed by KAMINI LAU
KAMINI LAU Date: 2021.01.07 16:35:58
+0530
Announced in the open court (Dr. KAMINI LAU)
Dated: 07.01.2021 PO, MACT01 (Central),
Tis Hazari Courts, Delhi
Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 30 of 33
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE AWARD 1 Date of Accident 08.06.2019 2 Date of intimation of the accident by the Investigating Officer to the Claims Tribunal 02.07.2019 (Clause 2) 3 Date of intimation of the accident by the Investigating Officer to the Insurance Company 02.07.2019 (Clause 2) 4 Date of filing of Report under Section 173 Cr.P.C. before the Metropolitan Magistrate Not Mentioned in the DAR (Clause 10) 5 Date of filing of Detailed Accident Information Report (DAR) by the Investigating Officer 01.10.2019 before Claims Tribunal (Clause 10) 6 Date of Service of DAR on the Insurance 01.10.2019 Company. (Clause 11) 7 Date of service of DAR on the Claimant(s) 01.10.2019 (Clause 11) 8 Whether DAR was complete in all respects?
Yes (Clause 16) 9 If not, whether deficiencies in the DAR No removed later on?
10 Whether the police has verified the documents Yes filed with DAR? (Clause 4) 11 Whether there was any delay or deficiency on the part of the Investigating Officer? If so, No whether any action/direction warranted?
12 Date of appointment of the Designated Officer 30.09.2019 by the Insurance Company (Clause 20) 13 Name, address and contact number of the Sh. Prakhar Singh, Executive Designated Officer of the Insurance Company. Legal (Clause 20) Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 31 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:36:06 +0530 14 Whether the Designated Officer of the No Insurance Company admitted his report within 30 days of the DAR? (Clause 22) 15 Whether the Insurance Company admitted the liability? If so, whether the Designated Officer No 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 Designated Officer of the No Insurance Company? If so, whether any action/direction warranted?
17 Date of response of the claimant(s) to the offer No offer given by Insurance of the Insurance Company. (Clause 24) Company 18 Date of award 07.01.2021 19 Whether the award was passed with the consent No of the parties? (Clause 22) 20 Whether the claimant(s) were directed to open Yes 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 Account(s) near his place of residence and produce PAN card and Aadhaar Card and the direction to the bank 01.10.2019 not to 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) produced the passbook of their savings bank account(s) near 26.09.2020 the place of their residence alongwith the endorsement, PAN card and Aadhaar Card?
(Clause 18) 23 Permanent residential address of the As per award claimant(s). (Clause 27) 24 Details of savings bank account(s) of the A/c No. 39226443541 claimant(s) and the address of the bank with the State Bank of India, Tis Hazari IFSC Code. (Clause 27) Court Complex Branch, Delhi IFSC: SBIN0000726 Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 32 of 33 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.01.07 16:36:12 +0530 25 Whether the claimant(s) savings bank account(s) is near their place of residence? Yes (Clause 27) 26 Whether the Claimant(s) were examined at the Yes. The financial statement of time of passing of the Award to ascertain the petitioner has been his/their financial condition? (Clause 27) recorded.
27 Account number, MICR number, IFSC Code, Judge MACT01, Delhi, SBI, name and branch of the bank of the Claims Tis Hazari Courts, Delhi, Tribunal in which the award amount is to be Customer No. 80761891696, deposited/ transferred.
Code No. 00726
Digitally signed by KAMINI LAU
KAMINI LAU Date: 2021.01.07 16:36:20
+0530
(Dr. KAMINI LAU)
Judge, MACT01 (Central),
Tis Hazari Courts, Delhi/ 07.01.2021
Babban Singh Vs. Pramod & Ors., MACT No. 754/2019, Award dated 07.01.2021 Page No. 33 of 33