Delhi District Court
Vivek Kumar vs . Shishpal & Ors. on 11 April, 2018
IN THE COURT OF SH. RAJ KUMAR CHAUHAN:
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL:
SOUTH EAST DISTRICT/ SAKET COURTS: NEW DELHI
MACT No. 29/18
FIR No. 545/17
PS Jaitpur
Vivek Kumar Vs. Shishpal & Ors.
Injury Case
Shri Vivek Kumar S/o Shri Jalim Singh,
R/o E450, Jaitpur Extension,
New Delhi
...................... Petitioner/Claimant
Versus
1. Shri Shishpal S/o Shri Sohan Lal (Driver)
R/o B1, 220, JJ Colony, Madanpur Khadar,
New Delhi
2. Shri Surender S/o Shri Gajinder Singh (Owner)
5/2, Madanpur Khadar Village, New Delhi
3. IFFCO TOKIO General Insurance Co. Ltd. (Insurer)
Unit No. A&B4, 3rd Floor, TDI Centre, Commercial Plot No. 7,
Jasola, New Delhi 110025
.....................Respondents
Date of Institution : 12.12.2017
Date of reserving the judgment : 05.04.2018
Date of pronouncement : 11.04.2018
JUDGMENT:
1. Present claim proceedings were initiated on the basis of Detailed Accident Report (DAR) filed by the police in respect of injuries suffered by injured namely Shri Vivek Kumar in a road accident.
MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 1 of 16 )
2. Brief facts of the case are that on 29.10.2017 at about 12.40 AM (after midnight), injured was going from Madanpur Khadar to Jaitpur Extension on scooty bearing registration No. DL3SDT7516. When he reached Agra Canal at Madanpur Khadar Pulia, offending vehicle bearing registration No. HR38Q 7873, being driven by respondent No. 1 in a rash and negligent manner, came with high speed and hit injured near Shiv Mandir due to which he fell down on road and sustained injuries.
3. FIR number 545/17 under Section 279/337 IPC was got registered at PS Jaitpur. Police conducted investigation. After due investigation, police found respondent No. 1/Shishpal accused of rash and negligent driving and he was chargesheeted for commission of offence punishable under Section 279/338 IPC.
4. During proceedings, respondent No. 1/driver & respondent No. 2/owner filed their joint reply/ written statement while asserting that answering respondent No. 1 was driving alleged offending vehicle with normal speed and it was injured himself who drove his scooty in a rash and negligent manner and caused accident. It is asserted that alleged offending vehicle was duly insured with respondent No. 3/IFFCO TOKIO General Insurance Co. Ltd., answering respondent No. 1 was having valid driving licence & answering respondent No. 2 was having all the necessary documents for plying alleged offending vehicle on road. Hence, answering respondents are not liable to pay any compensation as insurer/ respondent No. 3 is liable for the same.
5. During proceedings, respondent No. 3/Insurance Company filed its reply/ legal offer in the sum of Rs.56,164/ plus medical bills for settling the claim of injured.
MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 2 of 16 )
6. Following issues were framed on 08.03.2018: (1) Whether the petitioner received injuries in the accident which took place on 29.10.2017 at about 00.45 hours involving offending vehicle i.e. bearing No. HR38Q7870 due to rash and negligent driving of respondent No. 1/ driver, owned by respondent No. 2/owner and insured by respondent No. 3 (insurance company)? OPP (2) To what amount of compensation the petitioner is entitled to claim and from whom?
(3) Relief.
7. During evidence, petitioner Vivek Kumar got himself examined as PW1. He tendered his evidence by way of affidavit of evidence which is Ex. PW1/A. He has relied upon the copy of his MLC as Ex. PW1/1; medical record of AIIMS Hospital as Ex. PW1/2; medical record of Sarvodaya Hospital, Faridabad as Ex. PW1/3; medical record and Discharge Summary of Ganesh Hospital as Ex. PW1/4 (collectively); other treatment record as Ex. PW1/5; medical bills as Ex. PW1/6 (collectively); copy of Voter ID and Aadhar Card as Ex. PW1/7 (collectively); copy of office ID and salary slip as Ex. PW1/8 and copy of HRCT Temporal Bone as Mark X. He has deposed regarding the manner of accident and treatment undergone by him after the accident.
8. No other witness was examined by petitioner.
9. No witness was examined by respondents.
10. After hearing arguments and considering the material on record, my issuewise MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 3 of 16 ) findings are as follows: Issue No. 1 (Negligence):
11. PW1 Vivek Kumar has categorically deposed in his affidavit of evidence that respondent No. 1 was driving offending vehicle in a rash and negligent manner due to which accident occurred. Nothing came in his crossexamination which could create doubt on his version regarding the manner of accident.
12. Learned counsel for respondent No. 1 and 2 has argued that injured was under the influence of alcohol at the time of accident which shows negligence on part of injured. In this regard, he has relied upon the MLC of injured wherein smell of alcohol was found in the breath of injured. However, during his crossexamination PW1 Vivek Kumar denied the suggestion given by the learned counsel for respondent No. 1 and 2 that he was under the influence of alcohol on the date of accident and volunteered to say that due to cough he had taken cough syrup on that day. He also clarified that he had taken the syrup on his own due to cough and he had not consulted any doctor. There is nothing on record regarding the actual quantity of alcohol in blood of injured. A person is under the influence of liquor, the said fact can only be proved by blood test. No blood test of injured was done. There is a relief of 30 mg of alcohol in 100 ml of blood as per Section 185 of Motor Vehicle Act. There is no scientific proof on record which may establish the specific quantity of alcohol in blood of injured. In such circumstances, respondent No. 1 and 2 have failed to prove that there was negligence on part of injured as he was under the influence of alcohol at the time of accident.
13. After due investigation, police found respondent No. 1 accused of rash and negligent driving and chargesheeted him for commission of offence MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 4 of 16 ) punishable under Section 279/338 IPC.
14. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court (MP) in case titled as "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. Further reliance can be placed on the case of "National Insurance Company Limited Vs. Pushpa Rana" (2009 ACJ 287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
15. In view of the above discussion, petitioner has succeeded in proving that he suffered injuries due to rash and negligent driving of the respondent No. 1. Accordingly, issue No. 1 is decided in favour of the petitioner and against the respondents.
MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 5 of 16 ) Issue No. 2 (Compensation):
16. Medical Expenses : PW1 Vivek Kumar in his affidavit of evidence has stated that after the accident, he was taken to Apollo Hospital and after initial treatment he was removed to AIIMS Trauma Centre. As per MLC No. 794/17 dated 29.10.2017 issued from Apollo Hospital, New Delhi, petitioner suffered grievous injuries in the accident. He suffered abrasion over left thigh, left ear bleeding and nasal bleeding. As per medical record, petitioner was taken to Safdarjung Hospital on the referral from AIIMS Hospital, New Delhi on the date of accident itself. As per medical report Mark X of AIIMS Hospital, petitioner was diagnosed to have suffered linear longitudinal fracture of the left sided temporal boneanterior type. In the said report, fracture line was seen traversing through the anterior part of squamous temporal bone violating the anterior wall of external auditory canal, anterior part of mastoid air cells and tegmen tympan resulting in ossicular disruption. Petitioner underwent treatment at Safdarjung Hospital. Petitioner also received treatment from Sarvodaya Hospital, Faridabad for his left ear injury. Petitioner also approached Dr. Rajesh Gupta, 155, Sec16A, Faridabad on 01.11.2017 for his ear and nose treatment. As per Discharge Report Ex. PW1/4 issued from Ganesh Hospital, Agra, injured remained hospitalized from 16.11.2017 to 25.11.2017. At the time of discharge, he was advised to take various medicines. Petitioner has filed medical bills totaling to Rs.77,947/. Learned counsel for Insurance Company has argued that the medical bill in the sum of Rs.39,500/ issued from Ganesh Hospital, Agra is not supported by any supporting prescription. However, learned counsel for injured has argued that Insurance Company had ample time to verify said bill from the issuing hospital, but they did not do so deliberately. Even otherwise, Discharge Report of injured issued from Ganesh Hospital is on record which shows that injured remained MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 6 of 16 ) hospitalized there from 16.11.2017 to 25.11.2017. In such circumstances, aforementioned bill of Rs.35,000/ cannot be discarded. Keeping in view the nature of injuries suffered by the petitioner in this accident, petitioner is awarded a sum of Rs.78,000/ towards medical expenses.
17. Compensation for pain and suffering: Petitioner is found to have suffered grievous injuries. He suffered nose and ear injuries due to which he remained under treatment for a long time. Since petitioner has suffered severe injuries in the accident. He has not only suffered physical injuries but also suffered mental trauma. Hence, a sum of Rs.40,000/ is granted towards pain and suffering.
18. Loss of income during treatment: PW1 Vivek Kumar has deposed in his affidavit of evidence that he was employed with Star Dental Centre (P) Ltd. (a unit of Clove Dental) and was earning Rs.20,043/ per month at the time of accident. He has also filed on record copy of his office ID and salary slip for the month of September, 2017. However, petitioner has not examined any witness from his employer to prove said documents or to prove his avocation or earnings at the time of accident. During his crossexamination, PW1 Vivek Kumar has deposed that he has done Electronics Course from ITI, Noida. At the time of adducing final arguments, petitioner produced his original Diploma from ITI. Thus, he was a skilled workman at the time of accident. Since petitioner has not examined any witness to prove his avocation or earnings, monthly income of injured can be taken as per minimum wages for an skilled workman at the time of accident, which was Rs.16,182/ per month. Petitioner suffered grievous injuries in the accident. He suffered abrasion over left thigh, left ear bleeding and nasal bleeding. He was diagnosed to have suffered linear longitudinal fracture of the left sided temporal bone MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 7 of 16 ) anterior type. Keeping in view the nature of injuries suffered by the petitioner, it can be said that he would have taken rest for about 02 months. Hence, loss of income of the injured is assessed as Rs.16,182/ X 02 = Rs.32,364/. Accordingly, petitioner is granted Rs.32,364/ towards loss of income during treatment.
19. Compensation for Special Diet, Attendant and Conveyance: Petitioner has not filed any documentary proof to show money spent by him on attendant, special diet and conveyance. Petitioner suffered grievous injuries in the accident. He suffered abrasion over left thigh, left ear bleeding and nasal bleeding. He was diagnosed to have suffered linear longitudinal fracture of the left sided temporal boneanterior type. He also visited hospital for followup treatment. Therefore, he had to incur expenses on conveyance, special diet and attendant charges. Hence, a sum of Rs.20,000/ is granted to petitioner under this head.
20. Loss of amenities of life: Petitioner suffered grievous injuries in the accident. He suffered abrasion over left thigh, left ear bleeding and nasal bleeding. He was diagnosed to have suffered linear longitudinal fracture of the left sided temporal boneanterior type. He has certainly undergone mental shock and has suffered loss of amenities of life. Therefore, interest of justice demands that he should be compensated on that ground also. Hence, petitioner is awarded Rs.10,000/ towards loss of amenities of life.
21. Thus, the total compensation to which petitioner is entitled comes as under: S.No Details Amount 1 Compensation for medical expenses Rs.78,000/ MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 8 of 16 ) Compensation for special diet, attendant and Rs.20,000/ 2 conveyance 3 Compensation for pain and sufferings Rs.40,000/ Compensation for loss of income during Rs.32,364/ 4 treatment 5 Loss of amenities of life Rs.10,000/ TOTAL Rs.1,80,364/ Hence, the petitioner is awarded a total amount of Rs.1,80,364/ (Rs. One Lac Eighty Thousand Three Hundred and Sixty Four Only).
Relief :
22. The petitioner/injured is hereby awarded a sum of Rs.1,80,364/ alongwith interest @ 9% per annum from the date of filing of DAR till the date of realization in favour of petitioner against the respondents on account of their liability being joint and several. Respondent No. 3, being insurer of offending vehicle at the time of accident, is directed to discharge the liability of the award amount within a period of 30 days from today along with the interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay.
Release of awarded amount :
23. Petitioner is awarded a compensation of Rs.80,364/ with proportionate interest. Out of the said amount, Rs.80,364/ with proportionate interest shall be released immediately and balance amount of Rs.1,00,000/ alongwith proportionate interest shall be kept in the form of FDR as under:
1) Rs.50,000/ for 6 months.
2) Rs.50,000/ for 1 year.
24. Deposition of awarded amount with STATE BANK OF INDIA, Saket MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 9 of 16 ) Court Branch, New Delhi.
25. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "Fixed deposit/saving account" in the following manner:
(i) The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of his saving bank account with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimant/ petitioner after due verification and the Bank shall issue photo identity Card to claimant/petitioner to facilitate identity.
(iii) No cheque book be issued to claimant/petitioner without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original pass Book shall be given to the claimant/ petitioner alongwith photocopy of the FDR's.
(v) The original fixed deposit receipts shall be handed over to claimant/ petitioner at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii) Half yearly statement of account be filed by the Bank in this court.
(viii) On the request of claimant/petitioner, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to his convenience.
(ix) Claimant/petitioner shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 10 of 16 ) Directions for the respondent No. 3. Respondent No. 3 is directed to file the compliance report of their having deposited the awarded amount with the State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
26. Respondent No. 3 will intimate to the claimant/ petitioner about it having deposited the cheque in favour of petitioner in terms of the award, at the address of the petitioner mentioned at the title of the award, so as to facilitate her to withdraw the same.
27. In pursuance to the directions passed in Modified Motor Accident Claims Tribunal Agreed Procedure as approved by Hon'ble High Court of Delhi, petitioner/claimant/injured is directed to open a savings bank account in a nationalized bank near the place of his residence and the concerned bank is directed to not issue any cheque book and/or debit card to the claimant(s) and if the same have already been issued, the bank is directed to cancel the same and make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/ or debit card shall be issued without permission of the Court. The claimant(s) is directed to produce the copy of the order before the concerned bank whereupon the bank is directed to make the endorsement on the passbook. The claimant(s) is directed to produce the passbook with the necessary endorsement as well as Aadhar Card and PAN Card before this Tribunal on the next date of hearing.
28. Copy of this Award be given to the parties free of cost and a copy be also sent to SBI, Saket Court Complex Branch for record and compliance.
MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 11 of 16 ) FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident: 29.10.2017
2. Name of the injured: Vivek Kumar
3. Age of the injured: 27 years
4. Occupation of the injured: Not proved by petitioner
5. Income of the injured: Rs.16,182/ (as per minimum wages)
6. Nature of injury: Grievous
7. Medical treatment taken by the injured: After the accident, petitioner was taken to Apollo Hospital, New Delhi where doctor opined that he has suffered grievous injuries in the accident. He suffered abrasion over left thigh, left ear bleeding and nasal bleeding. Thereafter, petitioner was taken to AIIMS Trauma Centre and then taken to Safdarjung Hospital on the referral from AIIMS Hospital, New Delhi on the date of accident itself. Petitioner was diagnosed to have suffered linear longitudinal fracture of the left sided temporal boneanterior type. Petitioner also underwent treatment at Safdarjung Hospital. Petitioner also received treatment from Sarvodaya Hospital, Faridabad for his left ear injury. Petitioner also approached Dr. Rajesh Gupta, 155, Sec16A, Faridabad on 01.11.2017 for his ear and nose treatment.
8. Period of hospitalization: From 16.11.2017 to 25.11.2017 in Ganesh Hospital, Agra.
9. Whether any permanent disability? If yes, give details: Petitioner has not suffered any permanent disability.
10. Computation of Compensation S. No. Heads Awarded by the Tribunal
11. Pecuniary Loss:
MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 12 of 16 )
(i) Expenditure on treatment Rs.78,000/
(ii) Expenditure on conveyance
(iii) Expenditure on special diet Rs.20,000/
(iv) Cost of nursing/attendant
(v) Loss of earning capacity Petitioner has not suffered any disability which resulted in loss of earning capacity
(vi) Loss of income Rs.32,364/
(vii) Any other loss which may require any special Already included in 11 (i) treatment or aid to the injured for the rest of to (vi) and 12 (i) to (v) his life
12. NonPecuniary Loss:
(i) Compensation for mental and physical shock Already included in 12 (ii) and (iii)
(ii) Pain and suffering Rs.40,000/
(iii) Loss of amenities of life Rs.10,000/
(iv) Disfiguration NIL
(v) Loss of marriage prospects NIL
(vi) Loss of earning, inconvenience, hardships, Already included in 11 (i) disappointment, frustration, mental stress, to (vi) and 12 (i) to (v) dejectment and unhappiness in future life etc.
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and nature of Petitioner has not suffered disability as permanent or temporary any disability
(ii) Loss of amenities or loss of expectation of life Already included in 12 (iii) span on account of disability
(iii) Percentage of loss of earning capacity in Petitioner has not suffered relation to disability any disability
(iv) Loss of future income(Income x % Earning Petitioner has not suffered Capacity x Multiplier) any disability
14. TOTAL COMPENSATION Rs.1,80,364/
15. INTEREST AWARDED @9% per annum
16. Interest amount up to the date of award Rs.5,411/
17. Total amount including interest Rs.1,85,775/
18. Award amount released Rs.80,364/ with MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 13 of 16 ) proportionate interest.
19. Award amount kept in FDRs Rs.1,00,000/ with proportionate interest.
20. Mode of disbursement of the award amount to SBI, Saket Court Complex, the claimant(s). (Clause 29) Saket, New Delhi is directed to open bank account in the name of petitioner and to keep FDs as per directions.
21. Next date for compliance of the award. (Clause 18.05.2018
31) FORMV COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE AWARD 1 Date of the accident. 29.10.2017 2 Date of intimation of the accident by 31.10.2017 the Investigating Officer to the Claims Tribunal.
3 Date of intimation of the accident by 12.12.2017 the Investigating Officer to the Insurance Company.
4 Date of filing of Report under Section Not known 173 Cr.P.C. before the Metropolitan Magistrate.
5 Date of filing of Detailed Accident 12.12.2017 Information Report (DAR) by the Investigating Officer before Claims Tribunal.
6 Date of service of DAR on the 12.12.2017 Insurance Company.
7 Date of service of DAR on the 12.12.2017 claimant(s).
8 Whether DAR was complete in all DAR was not complete respects?
9 If not, state deficiencies in the DAR? On perusal of DAR, it was found that verification report MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 14 of 16 ) was incomplete and most of the columns of VIR were incomplete.
10 Whether the police has verified the Yes.
documents filed with DAR?
11 Whether there was any delay or On perusal of DAR, it was deficiency on the part of the found that verification report Investigating Officer? If so, whether was incomplete and most of any action/ direction warranted? the columns of VIR were incomplete.
Concerned ACP and SHOs were called and both of them ensured that in future reports shall be furnished as per directions of Hon'ble High Court of Delhi 12 Date of appointment of the 12.12.2017 Designated Officer by the Insurance Company.
13 Name, address and contact number of A K Chadha, Vice President
the Designated Officer of the (Legal)
Insurance Company.
14 Whether the Designated Officer of Yes.
the Insurance Company submitted
his report within 30 days of the DAR?
15 Whether the Insurance Company Insurance Company admitted
admitted the liability? If so, whether liability and filed legal offer. the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
16 Whether there was any delay or No. deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17 Date of response of the claimant(s) to 08.03.2018 the offer of the Insurance Company.
18 Date of the award. 11.04.2018 19 Whether the award was passed with No MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 15 of 16 ) the consent of the parties?
20. Whether the claimant(s) were Yes directed to open savings bank account(s) near their place of residence?
21. Date of order by which claimant(s) 11.04.2018 were directed to open savings bank account(s) near his place of residence and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/ debit card to the claimant(s) and make and endorsement to this effect on the passbook(s)
22. Date of which the claimant(s) To be produced by the produced the passbook of their petitioner on the next date i.e. savings bank account near the place 18.05.2018 of their residence alongwith the endorsement, PAN Card and Aadhar Card?
23. Permanent Residential Address of the As per memo of parties claimant(s)
24. Details of savings bank account(s) of To be produced by the the claimant(s) and the address of the petitioner on the next date i.e. bank with IFSC Code. 18.05.2018
25. Whether the claimant(s) savings bank Petitioner is directed to open account(s) is near his place of saving bank account in a residence? nationalized bank near the place of his residence
26. Whether the claimant(s) examined at No, but financial condition of the time of passing of the award to petitioner was inquired. ascertain his/their financial condition?
Announced in open Court
Dated: 11.04.2018 (Raj Kumar Chauhan)
POMACT02/(South East District)
Saket, New Delhi/11.04.2018
MACT No. 29/18 Vivek Vs. Shishpal & Ors. (Page No. 16 of 16 )