Delhi District Court
Shiv Kumar vs . Surender Sharma & Ors. on 21 October, 2021
MACP No.657/17
Shiv Kumar Vs. Surender Sharma & Ors.
IN THE COURT OF SH. DEVENDER KUMAR JANGALA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
MAC Petition No.657/17
Shiv Kumar Vs. Surender Sharma & Ors.
Sh.Shiv Kumar
S/o Sh. Adhik Lal
R/o House no. A4/85, 2nd Floor,
Sector17, Rohini, Delhi.
................Petitioner
VERSUS
1. Sh.Surender Sharma
S/o Sh. B, R. Sharma,
R/o House no. F7/207, 1st Floor,
Sector16, Rohini, Delhi.
2. HDFC Ergo General Insurance Company Ltd.
Ambadeep Building, 14 Ground Floor,
KG Marg, new Delhi11001 ....Insurer
............Respondents
Date of Institution : 08.08.2017
Date of Arguments : 04.10.2021
Date of Decision : 21.10.2021
APPEARANCES: Sh. Rishi Kumar, Adv for petitioner.
None for driver cum owner.
Sh.A. K. Singh, Ld.counsel for insurance company.
Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner is seeking compensation in the wake of Detailed Accident Report (DAR) filed by police corresponding to the investigation carried out Page no.1 of total 13 MACP No.657/17 Shiv Kumar Vs. Surender Sharma & Ors.
in case FIR No.141/17, U/s 279/337 IPC registered at PS KNK Marg with regard to Motor Vehicular Accident which occurred on 21.03.2017 at about 3.00 AM near Sangat Mohan Mandir in front of G7 Block, within the jurisdiction of PS KNK Marg, Delhi involving the vehicle bearing registration no.DL8CAN3862 (alleged offending vehicle) being driven by respondent no.1 Sh. Surender Sharma in rash and negligent manner. Detailed Accident Report (hereinafter called DAR) filed by police, was treated as claim petition under Section 166(4) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act').
2. Brief facts of the case are that on 21.03.2017 at about 3.00 AM the petitioner after dropping the passengers from TSR bearing no. DL1NCR1092 at Sector 16/17 dividing road near Sangat Mohan Mandir in frontof G7 Block, stopped his TSR at road side and sit under the TSR, in the meantime one car bearing no. DL8CAN3862 being driven in a rash and negligent manner by respondent no.1 came from backside and hit the petitioner. Due to impact of hitting the petitioner fell down on the road and sustained injuries. The petitioner was taken to BSA hospital where he was examined vide MLC no. 3639/17 and thereafter the petitinoer has taken treatment from various hospitals. The case vide FIR no. 141/17, under Section 279/337 IPC was registered at PS KNK Marg against the respondent no.1. The aforesaid car bearing no. DL8CAN3862 was found to be owned by respondent no.1 Sh. Surender Sharma himself and was insured with respondent no.2 HDFC Ergo General Insurance Company Ltd., at the relevant time of accident.
3. Respondents have appeared in response to the notice of DAR issued by the investigating officer. Respondent no.1 driver cum owner of the offending vehicle has not filed reply despite opportunities and his right to file written statement was closed and his defence was struck off vide order dated 16.10.2017.
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4. Respondent no.2/insurance company filed reply/written statement thereby admitting therein that the car bearing no. DL8CAN3862 was insured with it vide policy no. 2311201426603200002 valid for the period from 06.06.2016 to 05.06.2017. It is stated that the driver of the offending vehicle was drunk at the time of accident and he has been charge sheeted under Section 185 of Motor Vehicles Act as the quantity of alcohol was found 254 mg/100 ml which was beyond permissible limit. It is denied that the insurance company is liable to pay compensation.
5. From pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 16.10.2017:
1. Whether the injured Shiv Kumar suffered injuries in road traffic accident on 21.03.2017 at about 3.00 AM at Sector 1617, Dividing Road near Sankat Mochan Mandir, G7, Block, Delhi within the jurisdiction of PS Narela due to rashness and negligence on the part of the driver cum owner Surender Sharma who was driving vehicle bearing registration no. DL7CAN3862 and insured with HDFC Ergo General Insurance Company Ltd.? OPP.
2. Whether the petitioner is entitled to any compensation, if so to what amount and from whom?
OPP.
3. Relief.
6. In support of his claim, the petitioner has examined himself as PW1. No other witness was examined on behalf of petitioner and PE was closed vide order dated 12.11.2018. On the other hand respondents have not examined any witness in their defence and RE was closed vide order dated 06.05.2019.
7. I have already heard the arguments advanced by Sh.Rishi Page no.3 of total 13 MACP No.657/17 Shiv Kumar Vs. Surender Sharma & Ors.
Kumar, Ld.counsel for petitioner and Sh.A. K. Singh, Ld.counsel for insurance company. I have gone through the record. My findings on the issues are as under: ISSUE NO. 1
8. For the purpose of this issue, the testimony of PW1 Sh.Shiv Kumar (injured himself) is relevant. In his evidence by way of affidavit (Ex. PW1/A) the PW1 has deposed that on 21.03.2017 at about 3.00 AM he after dropping the passengers from TSR bearing no. DL1NCR1092 at Sector 16/17 dividing road near Sangat Mohan Mandir in front of G7 Block, stopped his TSR at road side and sit under the TSR, in the meantime one car bearing no. DL8CAN3862 being driven in a rash and negligent manner by respondent no.1 came from backside and hit the petitioner. Due to impact of hitting the petitioner fell down on the road and sustained injuries. He was taken to BSA hospital where he was examined vide MLC no. 3639/17 and thereafter he has taken treatment from various hospitals. He categorically deposed that the accident took place due to negligence on the part of respondent no.1. He relied upon the documents filed alongwith the DAR Ex. PW1/2(colly).
9. The testimony of PW1 has gone unchallanged on the part of driver cum owner. In the crossexamination on behalf of insurance company he denied the suggestion that the accident in question was caused due to his sole negligence as he has not parked his TSR properly.
10. It is evident from the testimony of PW1 that the respondents could not impeach his testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of crossexamination. Even otherwise, PW1 himself is the injured having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against Page no.4 of total 13 MACP No.657/17 Shiv Kumar Vs. Surender Sharma & Ors.
respondent no.1.
11. It is pertinent to note that the respondent no.1/driver of aforesaid car bearing no. DL8CAN3862 was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of alleged car bearing no. DL 8CAN3862 by him.
12. It be noted that respondent no.1 namely Sh.Surender Sharma (accused in State case) has been charge sheeted for offences punishable U/s 279/338 IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending car bearing no. DL8CAN3862 by him. Same would also point out towards rash and negligent driving of aforesaid car by respondent no.1.
13. Apart from above, copy of MLC of the injured (which is part of DAR) prepared at BSA Hospital, Delhi shows that he had been removed to the said hospital immediately after the accident with the history of RTA. On his local examination, he was found to have grievous injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the said document from the side of respondents.
14. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of Page no.5 of total 13 MACP No.657/17 Shiv Kumar Vs. Surender Sharma & Ors.
pre ponderence of probabilities that he had sustained injuries in road accident which took place on 21.03.2017 at about 3.00 AM near Sangat Mohan Mandir in front of G7 Block, within the jurisdiction of PS KNK Marg, Delhi due to rash and negligent driving of the car bearing registration no.DL8CAN3862 by respondent no.1 Sh. Surender Sharma. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 2.
15. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
MEDICAL EXPENSES
16. PW1 Sh.Shiv Kumar i.e. injured himself, has deposed in his evidence by way of affidavit(Ex. PW1/A) that immediately after the accident, he was taken to BSA Hospital where he was examined vide MLC no.3639/17. He further deposed that thereafter he has taken treatment from various other hospitals. He further deposed that during the period of stay in the hospital the petitioner was operated for grievous injuries and after discharge from hospital he was advised complete bed rest. Alongwith the DAR, copy of MLC of petitioner prepared at BSA Hospital has been filed which shows that the petitioner has suffered grievous injuries. Alongwith DAR the copy of discharge summary of the petitioner prepared at BSA Hospital has been filed which shows that he was admitted in the said hospital on 21.03.2017 and was discharged on 24.03.2017 with the referral to LNJP/Safdarjung/GB Pant hospital for further management. Alongwith DAR copy of Discharge Slip of the petitioner prepared at Lok Nayak Hospital has also been filed Page no.6 of total 13 MACP No.657/17 Shiv Kumar Vs. Surender Sharma & Ors.
which shows that he was admitted in the said hospital on 29.03.2017 and was discharged on 30.03.2017 and the final diagnosis is mentioned as fracture odontoid type II with cervical disc.
17. Alongwith DAR, the medical bills to the tune of Rs.16,237/ have been filed. It is quite evident that respondents have also not led any evidence in rebuttal so as to create any doubt on the geuineness of said bills. Accordingly, a sum of Rs.16,237/ is awarded to the petitioner under this head.
LOSS OF INCOME
18. In para 6 of affidavit Ex. PW1/A the petitioner has deposed that at the time of accident he was driver of TSR no. DL1NCR1092 and was getting salary of Rs.15,000/ per month. He further deposed that due to the accident, he could not attend the work for six months and he suffered financial loss to the tune of Rs.2,00,000/. The petitioner has not filed any documentary proof of his income and of his educational qualifications. Hence, the income of the petitioner is taken as minimum wages of an unskilled worker prevalent at the time of accident, which were Rs.9724/ per month, at the time of accident i.e. on 21.03.2017.
19. The petitioner has not filed any documents showing that he was advised bed rest for any specific period. However, considering the nature of injuries and medical treatment documents on record , it is presumed that he would not have been able to work at all atleast for a period of 4 months or so. Thus, a sum of Rs.38,896/(9724x4) is awarded in favour of petitioner and against the respondent under this head.
PAIN AND SUFFERING
20. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Page no.7 of total 13 MACP No.657/17 Shiv Kumar Vs. Surender Sharma & Ors.
Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
21. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries in the accident in question. As already noted above, the medical treatment record of the petitioner shows that he remained under treatment for a considerable period and suffered grievous injuries. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs. 30,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
22. As already mentioned above, there is sufficient evidence on record to establish that the petitioner remained under treatment for a considerable period and suffered grievous injuries. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 30,000/ towards loss of general amenities and enjoyment of life to the petitioner.
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CONVEYANCE AND SPECIAL DIET
23. The petitioner has failed to lead any cogent evidence on record in respect of amount incurred by him on conveyance and special diet charges. At the same time, it cannot be overlooked that the petitioner has suffered fracture injuries. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. In these facts and circumstances, I hereby award a sum of Rs.10,000/ each(Total Rs.20,000/) for conveyance and special diet to the petitioner.
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 16,237/
2. Loss of income Rs. 38,896/
3. Pain and suffering Rs. 30,000/
4. Loss of general amenities and Rs. 30,000/ enjoyment of life
5. Conveyance and special diet Rs. 20,000/ Total Rs. 1,35,133/ Roundedoff to Rs. 1,35,200/
24. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. The insurance company in its written statement has raised statutory defence that the driver of the alleged offending vehicle bearing registration no.DL8CAN3862 was under the influence of alcohol at the time of accident and he has been charge sheeted for the offences punishable under Section 185 Motor Vehicles Act. It is submitted that the insurance company is not liable to pay compensation as there is breach of terms and conditions of insurance policy. The insurance company has admitted the Page no.9 of total 13 MACP No.657/17 Shiv Kumar Vs. Surender Sharma & Ors.
existence of valid insurance policy for the alleged offending vehicle. The investigating Officer after completion of investigation has filed the DAR which also contains the copy of charge sheet wherein it is specifically mentioned that the driver Sh. Surender Sharma was under the influence of alcohol at the time of accident and he has been prosecuted under Section 185 of Motor Vehicles Act for driving the vehicle under the consumption of alcohol.
25. In order to appreciate the aforesaid submission raised on behalf of insurance company, it would be relevant to mention here that MLC No. 53224/17 dated 21.03.2017 of Sh.Surender Sharma/driver of offending vehicle showed that there was contents of liquor to the extent of 284.2 mg/100ml in blood as per test report, which constituted violation of the terms and conditions of insurance policy. In view of Rule 7 of Delhi Motor Accidents Claims Tribunal Rules, 2008, the report submitted by the investigating officer is presumed to be correct and shall be read in evidence without formal proof.
26. In view of the above submissions made by Ld. Counsel for insurance company which is duly corroborated by MLC (which is part of DAR) of respondent no. 1/driver Sh. Surender Sharma, it is duly established on record that respondent no. 1 was totally under the influence of liquor at the time of causing the accident while driving the offending vehicle on the given date, time and place. To my mind, rejecting the plea of insurance company to grant recovery rights in such a situation, would encourage unhealthy practice on the part of registered owners of motor vehicles either themselves to drive those vehicles under the influence of alcohol or allowing others to do so and still being go scot free and without being saddled with any liability whatsoever under the law. Same would also be termed as violation of the terms and conditions of the insurance policy on the part of insured.
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27. In the present facts and circumstances, in view of relevant provisions of law, I am inclined to pass an order against the respondent no.1 driver cum owner Sh. Surender Sharma. Accordingly it is held that there was breach of terms and conditions of insurance policy issued by the insurance company/respondent no.2 as respondent no.1 Sh. Surender Sharma, under the influence of alcohol and he has been charge sheeted for commission of offence punishable under Section 185 of Motor Vehicles Act.
28. In the present facts and circumstances, on the basis of material on record, it is held that the insurance company/respondent no.2 is entitled for recovery rights against respondent no.1 Sh.Surender Sharma, due to breach of insurance policy. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
29. In view of my findings on issues no. 1 and 2, I award compensation of Rs.1,35,200/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 08.08.2017 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
30. Statement of petitioner in terms of Clause 29 MCTAP was recorded on 23.09.2019. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the awarded amount, a sum of Rs.50,000/(Rupees Fifty Thousand only) shall be immediately released to the petitioner through his saving bank account no.280610100017991 with Andhra Bank, IFSC Code no. ANDB0002806 and remaining amount Page no.11 of total 13 MACP No.657/17 Shiv Kumar Vs. Surender Sharma & Ors.
alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 5,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
31. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The 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 claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). 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 the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
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(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
32. The respondent no.2/insurance company is directed to deposit the award amount, in terms of aforesaid directions with SBI, Rohini Courts branch within 30 days as per above order, failing which it shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the aforesaid amount immediately to aforesaid petitioner in his aforesaid saving bank accounts mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioners and counsel for insurance company. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XVI & Form XVII in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Digitally signed DEVENDER by DEVENDER KUMAR Announced in the open KUMAR JANGALA JANGALA Court on 21.10.2021 Date: 2021.10.30 16:52:24 +0530 (DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts, Delhi
Certified that above award contains 13 pages and each page is signed by me.
(DEVENDER KUMAR JANGALA) Judge MACT2 (North) Rohini Courts, Delhi Page no.13 of total 13