Delhi District Court
Sh. Kuldeep vs Sh. Vinod Kumar (Driver) on 22 September, 2017
IN THE COURT OF SH. RAJ KUMAR
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
(WEST-01):DELHI
New MACT Case No. 477746/16
Sh. Kuldeep
S/o Sh. Sodan
R/o Nangal Shahbazpur,
Bawal, Rewari, Haryana-123501
......Petitioner
VERSUS
1. Sh. Vinod Kumar (Driver)
S/o Sh. Ram Kawar,
R/o V.P.O. Tanda-Heri Bahadurgarh,
Jhajjar-124507, Haryana
2. Sh. Pawan Ganga Educational Society (Owner)
4/12, East Punjabi Bagh
New Delhi-110026
3. Bharti AXA General Insurance Co. Ltd., (Insurer)
2nd Floor, BIGJO'S Tower
A-8, Netaji Subhash Place, Pitampura,
New Delhi-110035
Police No. PPV/I1592916/12/04/003464
Valid from 26.04.2016 to 25.04.2017
......Respondents
Date of Institution : 09.08.2016
Date of reserving order/judgment : 20.09.2017
Date of pronouncement : 22.09.2017
New MACT Case No. 477746/16 Page 1/18
A W A R D:
1. Vide this Judgment-cum-Award, I shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred to as the 'Act') filed by petitioner Sh. Kuldeep for grant of compensation for the injuries suffered by him in the road vehicular accident.
2. Brief facts of the case of the petitioner are that on 24.06.2016 at about 1:30 pm, the petitioner alongwith Amit Kumar were going on a motorcycle. It has been further stated that the motorcycle was being driven by the petitioner. It has been further stated that when they reached near Ashok International School, Soldha Road, Naya Gaon, then a Tata Sumo No. DL-9CZ-3668 came from Village Soldh at a very high speed and in a rash and negligent manner, hit the motorcycle of the petitioner. It has been further stated that due to forceful impact, both the occupants of the motorcycle fell down on the road and received serious injuries.
3. It has been further stated that the respondent No.1 ran away alongwith the offending vehicle from the spot. It has been further stated that the petitioner was removed to Delhi Hospital, Bahadurgarh and thereafter, he was shifted to Sri Balaji Action Medical Institute, Paschim Vihar, Delhi where he remained admitted from 24.06.2016 to 01.07.2016. It has been further stated that the petitioner is still under treatment.
4. The petitioner has further stated that he suffered heamorrhagic contusion left cerebrum, broken teeth, multiple facial bone fractures, fracture maxilla, mandible and nasal septum New MACT Case No. 477746/16 Page 2/18 alongwith extension to alveolar margin and hard palate and other multiple injuries all over his body.
5. It has been further stated that the petitioner has spent an amount of Rs.5,00,000/- on his treatment so far.
6. It has been further stated that as a result of the abovesaid accident, FIR No. 0291/2016 dated 24.06.2016, PS Sadar Bahadurgarh, U/s 279/337 of the IPC was registered against the respondent No.1.
7. It has been further stated that at the time of accident, the injured was a young man of 25 years. It has been further stated that the petitioner was doing private service and earning Rs.20,000/- per month.
8. The petitioner has claimed compensation under various heads and in total the petitioner has claimed the amount of Rs. 20,00,000/- (Rupees Twenty Lacs Only) along with the interest.
9. It has been further stated that the respondent no.1 being the driver of the offending vehicle, the respondent no.2 being the owner and the respondent no.3 being the Insurer of the offending vehicle are jointly and severally liable to pay the compensation to the petitioner.
10. Written statement has been jointly filed by the respondents No. 1 & 2 stating therein that the petitioner has suppressed the material facts and has not come before the Court with clean hands. It has been further stated that there is no cause of action for filing the present claim petition against the respondents as no accident was caused due to negligence on the part of the respondents. It has been further stated that the alleged accident New MACT Case No. 477746/16 Page 3/18 was not caused due to negligence on the part of the respondent No.1. It has been further stated that the petitioner was driving his motorcycle at a fast speed and in a rash and negligent manner. It has been further stated that while driving the motorcycle, the petitioner was unable to control the same and caused the accident. It has been further stated that the offending vehicle was insured with the respondent No.3 vide policy No. PPV/I1592916/12/04/003464 valid for the period from 26.04.2016 to 25.04.2017. It has been further stated that the respondent No.1 was having a valid and effective driving licence at the time of accident. It has been prayed by the respondents No. 1& 2 that the present claim petition be dismissed.
11. Written statement has also been filed on record by the Insurance Company wherein it has been admitted that the offending vehicle was insured with it at the relevant time i.e. on 24.06.2016 vide policy no. PPV/I1592916/12/04/003464 valid for the period from 26.04.2016 to 25.04.2017. It has been further stated that the driver of the offending vehicle was not holding a valid driving license at the time of accident. It has been further stated that the accident in question has taken place due to rash and negligent driving of the petitioner. It has been further stated that the petitioner has no locus-standi to file the present claim petition. It has been prayed that the present claim petition be dismissed.
12. From the pleadings of the parties, following issues were framed by the Ld. Predecessor of this Tribunal on 07.12.2016:-
1. Whether the injured/petitioner Kuldeep New MACT Case No. 477746/16 Page 4/18 suffered injuries in an accident that took place on 24.06.2016 at about 1:30 PM., due to rash and negligent driving of respondent No.1 of the vehicle No. DL-
9CZ-3668 owned by respondent No.2 & insured with respondent No.3? OPP.
2. Whether the petitioner/s is/are entitled for compensation? If so, to what amount and from whom? OPP.
3. Relief.
13. In order to establish his claim, the petitioner has examined himself as PW-1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by him in the present claim petition. He has filed on record his affidavit as Ex. PW1/A, the copy of his Aadhar Card as Ex. PW1/1(OSR); the copy of his Election Card as Ex. PW1/2(OSR); the copy of his driving license as Ex. PW1/3(OSR); the copy of his technical qualification certificate semester 1 to 5 as Ex. PW1/4(colly 6 pages) (OSR); the copy of the certificate of Sr. School examination as Ex. PW1/5(colly, OSR); the copy of Haryana Police Recruitment Application Form as Mark A(colly 3 pages); his treatment records and bills as Ex. PW1/6(Colly, 54 pages); the certified copy of Insurance Policy, the certified copy of FIR, the certified copy of MLC, the certified copy of site plan, the certified copy of Driving License of Vinod and the certified copy of RC of the vehicle No. DL9CZ 3668 as Ex. PW1/7(colly 10 pages).
New MACT Case No. 477746/16 Page 5/1814. In the cross examination, PW1 has stated that he was going to give the tea to his nephew in the fields which are approximately 2 km away from his residence. PW1 has further stated that the accident occurred at 1.30 pm. PW-1 has further stated that he was going towards Village Soldha and the offending vehicle was coming from the side of the village Soldha. PW-1 has further stated that he was going towards Village Soldha and the offending vehicle was coming from the opposite direction. PW-1 has further stated that he does not know as to whether the driver of the offending vehicle was able to control the vehicle or not but at a very high speed, he gave a strong blow and struck his motor cycle. PW-1 has further stated that there was no divider in between the road at the site where the accident took place. PW-1 has further stated that the collision was head to head. PW-1 has denied the suggestion that he was talking on his mobile phone at that time. PW-1 has denied the suggestion that his motor cycle slipped as he was not able to control the same because he was talking on the phone.
15. In the cross examination done by Ld. Counsel for the Insurance Company, PW-1 has stated that he was driving the motor cycle of his brother-in-law. PW-1 has further stated that at the time of the accident, there was a friend of his namely Amit who was the pillion rider on his motor cycle. PW-1 has denied the suggestion that Amit did not suffer any injury in the said accident. By way of volunteer, PW-1 states that he sustained minor injuries but he was not admitted in the hospital. PW-1 has further stated that after the accident, Amit was in a fit state of mind and was in a position to talk New MACT Case No. 477746/16 Page 6/18 and communicate. PW-1 has further stated that at that time, he was having his own mobile phone and Amit was also having his own mobile phone. PW-1 has further stated that he does not know as to whether any call to 100 number was made after the accident. By way of volunteer, PW-1 states that 10 minutes after the accident, he had become unconscious. PW-1 has further stated that first of all after the accident, he was moved to Delhi Hospital, Bahadurgarh (Haryana) and thereafter, after giving first aid, he was shifted to Sri Balaji Action Hospital, Paschim Vihar, New Delhi. PW-1 has further stated that he does not have any document to show that he was treated or given first aid at Delhi Hospital, Bahadurgarh (Haryana). PW-1 has admitted it to be correct that he was not referred to Sr. Balaji Action Hospital by Delhi Hospital, Bahadurgarh (Haryana). PW-1 has further stated that he does not have any documentary proof to show that his monthly income was Rs.20,000/- per month. PW-1 has further stated that the medical bills have already been placed on record by him to show that an amount of Rs5 lacs was spent on his medical treatment, conveyance and special diet. PW- 1 has further stated that he has not placed on record any documentary evidence to show that he had to appear for physical test on 25.06.2016 for the job in Haryana Police. PW-1 has further stated that he had noted the vehicle number of the offending vehicle which was as DL 9C Z 3668. PW-1 has denied the suggestion that the accident took place on account of his own mistake/negligence.
16. The petitioner has further examined Dr. Virender Kumar, CMO, Sri Balaji Action Medical Institute, Paschim Vihar, New Delhi New MACT Case No. 477746/16 Page 7/18 as PW-2. This witness has brought on record the treatment records and bills of Sh. Kuldeep S/o Sh. Sodan Singh which has already been exhibited as Ex. PW1/6(Colly). PW-2 has further stated that the patient namely Sh. Kuldeep was admitted in the said hospital on 24.06.2016 on account of road traffic accident with head injury, hemorrhagic contusion and facial bone injury. PW-2 has further stated that the injured was treated by Neuro Surgeon and Plastic Surgeon and discharged on 01.07.2016. PW-2 has further stated that head injury causes seizure and headache vertigo (Memory Loss and fits). PW-2 has further stated that after discount, the total amount of bills to the tune of Rs.3,35,959/- was paid in cash to the hospital by the injured. PW2 has filed on record the attested copy of bills as Ex. PW2/1(colly running into 3 pages).
17. In the cross examination, PW-2 has admitted it to be correct that the patient was never operated by him. PW-2 has further stated that the petitioner/injured had suffered head injury at the time of accident and thereafter, he suffered seizure as well, on account of which, he was admitted in the hospital on 24.06.2016. PW-2 has further stated that there is no record to show that after 24.06.2016, the injured suffered seizure or vertigo. PW-2 has further stated that as per the record brought by him, the injured was discharged on 01.07.2016 and thereafter, he continued the treatment from OPD.
New MACT Case No. 477746/16 Page 8/1818. The respondents have not led any evidence.
19. I have gone through the testimony of the witnesses; entire material available on record. I have also given thoughtful consideration to the arguments addressed by the Ld. counsels for the parties. The petitioner has also been examined under the MCTAP and I have considered the statement of the petitioner under MCTAP as well.
My findings on various issues are as under :-
ISSUE NO. 120. The present petition has been filed by the petitioner u/s 166 & 140 M. V. Act and the onus is upon the petitioner to prove the rash and negligent act of the respondent No.1.
21. The petitioner has examined himself as PW-1 and he has well explained the mode and manner of accident. He has reaffirmed and reiterated the averments made in his petition. He has filed on record his affidavit as Ex. PW1/A, the copy of his Aadhar Card as Ex. PW1/1(OSR); the copy of his Election Card as Ex. PW1/2(OSR); the copy of his driving license as Ex. PW1/3(OSR); the copy of his technical qualification certificate semester 1 to 5 as Ex. PW1/4(colly 6 pages) (OSR); the copy of the certificate of Sr. School examination as Ex. PW1/5(colly, OSR); the copy of Haryana Police Recruitment Application Form as Mark A(colly 3 pages); his treatment records and bills as Ex. PW1/6(Colly, 54 pages); the certified copy of Insurance Policy, the certified copy of FIR, the certified copy of MLC, the certified copy of New MACT Case No. 477746/16 Page 9/18 site plan, the certified copy of Driving License of Vinod and the certified copy of RC of the vehicle No. DL9CZ 3668 as Ex. PW1/7(colly 10 pages).
22. PW-1 has been cross examined at length but during the entire cross examination of PW-1, nothing has come out so as to discredit his testimony on the aspect that the accident in question was not caused on account of the rash and negligent driving of the respondent no.1 while driving the offending vehicle bearing No. DL- 9CZ-3668. The respondents have failed to appear in the witness box. As such, the testimony of PW-1 remains uncontroverted so far as the negligence on the part of respondent no.1 is concerned.
23. Furthermore, it has to be seen that in the present case, the petitioner has filed the certified copy of the FIR No. 0291/16 dated 24.06.2016: P. S. Sadar Bahadurgarh, Distt Jhajjar; u/s 279/337 IPC, certified copy of the MLC, certified copy of the Site plan, certified copy of the DL of the respondent No.1; certified copy of the RC of the offending vehicle etc., on record.
24. On the aspect of the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein the Hon'ble High Court has 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 and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was New MACT Case No. 477746/16 Page 10/18 negligent. It was further held that the proceedings under the Motor Vehicles Act were not akin to the proceedings in a civil suit and hence strict rules of evidence were not required to be followed in this regard.
25. In view of the testimony of PW-1; in the light of the law discussed above and after going through all the documents placed on record by the petitioner, it is clear that respondent no. 1 was driving the offending bus in a rash and negligent manner.
The issue No:1, therefore, stands decided in favour of the petitioner and against the respondents.
ISSUE NO.2/COMPENSATION :-
26. LOSS OF EARNING CAPACITY For the purposes of assessing the loss of earning capacity, the income of the Petitioner/injured needs to be assessed along with the functional disability suffered by him due to the injuries sustained in the accident.
(a) Criteria for determining the income of the Petitioner The Petitioner, in the present petition has claimed that he was doing private job and earning Rs.20,000/- per month but in the cross examination, the petitioner has stated that he does not have any documentary proof to show that his monthly income was Rs.20,000/- per month.
The petitioner has filed on record his technical New MACT Case No. 477746/16 Page 11/18 qualification certificate of semesters 1 to 5 in the form of Ex. PW1/4(colly). The abovesaid diploma is a three year diploma. The petitioner has also placed on record his secondary school examination certificate in the form of Ex. PW1/5.
The date of accident is 24.06.2016. In the facts and circumstances, the notional income of the Petitioner is considered on the basis of minimum wages of a Matriculate person and that of a Skilled person as notified by Government of NCT of Delhi for the relevant period @ Rs.11,622/- per month for the purposes of assessment of compensation.
(b) Loss of Income on account of accident The petitioner has filed on record his treatment records and bills as Ex. PW1/6 (colly) along with discharge summary which suggests that the petitioner was admitted in Sri Balaji Action Medical Institute on 24.06.2016 and discharged on 01.07.2016 and thereafter he was treated as OPD patient in the said hospital. In his statement recorded under MCTAP, the petitioner has stated that he remained bed ridden for a period of 6 months. Keeping in view the nature of the injuries elicited above, to my mind, it can be safely concluded that the petitioner was not able to do his work for a period of 4 months. As such, on this count, the petitioner is entitled for the sum of Rs. 46,488/-(Rs. 11,622/- X 4).
(c) Pain, Suffering & Mental Agony Keeping in view the nature of the injuries sustained by New MACT Case No. 477746/16 Page 12/18 the petitioner, he is awarded a sum of Rs. 20,000/- (Rupees Twenty Thousand Only) towards pain and suffering and mental agony.
(d) Medicines and Medical Treatment The petitioner has filed on record his treatment records and bills as Ex. PW1/6(colly) along with discharge summary which suggests that the petitioner was admitted in Sri Balaji Action Medical Institute on 24.06.2016 and discharged on 01.07.2016 and thereafter he was treated as OPD patient in the said hospital.
The petitioner has filed on record the medical bills to the tune of Rs.3,35,959/- along with cash receipt to the tune of Rs.5950/-.
In order to prove his medical bills, the petitioner has also examined Dr. Virender Kumar, CMO, Sri Balaji Action Medical Institute as PW-2 who has brought on record the treatment records and bills of the petitioner which has already been exhibited as Ex. PW1/6(colly). PW-2 has further stated that the patient namely Sh. Kuldeep was admitted in the said hospital on 24.06.2016 in road traffic accident with head injury, hemorrohagic contusion and facial bone injury. PW2 has further stated that the petitioner was treated by Neuro Surgeon and Plastic Surgeon and discharged on 01.07.2016. PW-2 has further stated that head injury causes seizure and headache vertigo (Memory Loss and fits). PW-2 has further stated that after discount, the total amount of bills to the tune of Rs.3,35,959/- was New MACT Case No. 477746/16 Page 13/18 paid in cash to the hospital. PW-2 has exhibited the attested copy of bills as Ex. PW2/1 (colly).
In view of the facts and circumstances, I am of the opinion that the petitioner is entitled for a sum of Rs.3,41,909/- (Rs.3,35,959/- + Rs.5950/- on account of various cash receipts dated 05.07.2016, 08.07.2016 ete.,) under this head.
(e) Conveyance, Attendant Charges & Special Diet Keeping in view the nature of the injuries which has been mentioned as grievous by Sri Balaji Action Hospital, a sum of Rs.20,000/- is awarded to the petitioner on account of conveyance, attendant charges and special diet collectively.
27. As discussed above, the overall compensation is tabulated as under:
Loss of Income on Account of accident Rs.46,488/-
Pain and Suffering Rs.20,000/-
Medicines & Medical Treatment Rs.3,41,909/-
Conveyance, Attendant Charges Rs. 20,000/-
and Special Diet -------------------
Total Rs. 4,28,397/-
(Rupees Four Lacs Twenty Eight Thousand Three Hundred and Ninety Seven Only) New MACT Case No. 477746/16 Page 14/18
28. On the said amount, interest @ 9% per annum is also awarded from the date of filing of petition/DAR i.e. from 09.08.2016. The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the Petitioners.
29. It is further held that Respondent No.1 (Owner), Respondent No.2 (Driver) and Respondent No.3 (Insurer) of the offending vehicle are jointly and severally liable to make the payment of compensation to the Petitioners/claimants.
R E L I E F:
30. I hereby pass an award of Rs. 4,28,397/- (Rupees Four Lacs Twenty Eight Thousand Three Hundred and Ninety Seven Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. w.e.f. 09.08.2016 in favour of the petitioner and against the respondents.
31. The petitioner has also been examined under MCTAP on 20.09.2017 and in his statement, he has stated that prior to the accident, he was working with Rane NSK Pvt. Ltd as a Machine Operator and earning Rs.19,500/- per month. He has further stated that after the accident, he was not able to work for six months and he remained bed ridden for the said period of six months. He has further stated he suffered injuries on his face, neck and on his head also and his five teeth were broken. He has further stated that after the accident, he has not been able to get any job till date. The petitioner has further stated that he is not New MACT Case No. 477746/16 Page 15/18 doing anything and not earning anything after the accident. He has further stated that he is unmarried. He has further stated that he has his parents, his elder brother and three elder sisters. He has further stated that his elder brother and his elder three sisters are married and settled. He has further stated that his family expenses are being borne by his parents as he is not earning anything.
APPORTIONMENT OF LIABILITY:-
32. Since the offending vehicle, was admittedly insured with the respondent No.3, the respondent No.3 is hereby directed to deposit the award amount in favour of the petitioner with SBI, Tis Hazari Courts, Delhi within a period of 30 days from the date of passing of this award together with the interest as stated herein above under the intimation to this court and under intimation to the petitioner as well. In case of any delay, it shall be liable to pay interest at the rate of 12% per annum for the period of delay.
Keeping in view the facts and circumstances of the case and also In accordance with the orders dated 13.02.2017 passed in FAO no. 842/2003 titled as Rajesh Tyagi and Ors. Vs. Jaibir Singh and Ors. by the Hon'ble High Court of Delhi, the respondent no.3 is directed to deposit the amount of Rs. 4,28,397/- (Rupees Four Lacs Twenty Eight Thousand Three Hundred and Ninety Seven Only) as stated herein above with SBI, Tis Hazari Courts, Delhi, out of which, the amount of Rs. 1,28,397/- together with proportionate interest shall be released to the petitioner keeping in view the submissions of the Ld. Counsel for New MACT Case No. 477746/16 Page 16/18 the petitioner and that of the Insurance Company as well and in the entirety of the facts.
The rest of the amount of Rs. 3,00,000/-
(Rupees Three Lacs only) shall be kept in 30 equal monthly FDR's for an amount of Rs. 10,000/- each with cumulative interest.
33. The following conditions shall be adhered to by SBI, Tis Hazari Courts, Delhi with respect to the FDR's:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a statement containing FDR number, FDR amount, date of maturity of FDR and maturity amount of the FDRs be given to the claimant.
(ii) The maturity amount of the FDR be credited in the saving account of the claimant near the place of her residence.
(iii) No cheque book be issued to the claimant in the savings bank account without permission of the Court.
(iv) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victims A separate file be prepared for compliance report by the Nazir and put up the same on 03.11.2017.
A copy of this award be given to the insurance company as well as to the petitioner free of cost.
New MACT Case No. 477746/16 Page 17/18A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
File be consigned to Record Room.
Announced in the open court
On 22nd of September, 2017 ( RAJ KUMAR )
P.O.MACT (WEST-01)
Delhi (22.09.2017)
New MACT Case No. 477746/16 Page 18/18
New MACT Case No. 477746/16
22.09.2017
Present None
Award is passed separately.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 03.11.2017.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
( RAJ KUMAR ) P.O. MACT (WEST-01) Delhi 22.09.2017 New MACT Case No. 477746/16 Page 19/18