Delhi District Court
Akbar Ali vs Amit Sharma (Driver/Owner) on 15 May, 2019
IN THE COURT OF SH. VIVEK KUMAR GULIA
P.O : MOTOR ACCIDENT CLAIMS TRIBUNAL
EAST DISTRICT : KARKARDOOMA COURTS: DELHI
MACP No. 17/18
Unique Case I.D. No. DLET0100052218
Akbar Ali
S/o Sh. Jamaluddin
R/o Village Aurangabad Fazalgarh,
Bhadaula, Modi Nagar, Ghaziabad, U.P. ........ Petitioner
VERSUS
1. Amit Sharma (driver/owner)
S/o Harish Sharma
R/o 4/1410, Bhola Nath Nagar,
Shalimar Park, Delhi.
2. United India Insurance Co. Ltd. (insurer)
D.R.O.2, Core 1 & 4, Second Floor,
Scope Minar,District Centre,
Laxmi Nagar, Delhi110092. .......Respondents
Date of institution : 25.01.2018
Final arguments heard on : 06.05.2019
Date of Award : 15.05.2019
Page 1 of 11 MACP No. 17/18; Akbar Ali vs. Amit Sharma & Ors.
AWARD
1. By this award, claim petition filed by petitioner under section 166 & 140 of Motor Vehicles Act, 1988, would be decided.
2. The important facts of the case are as under. Petitioner Akbar Ali suffered grievous injury on account of a motor accident happened on 17.06.2017 at about 06:00 p.m., near Petrol Pump, Bhojpur, Modi Nagar, Ghaziabad, U.P. In respect of this accident, an FIR No. 221/17, U/s 279/338/427 IPC was also registered at PS Bhojpur. As per the FIR, at the relevant time, petitioner along with his friend Dilshad was going to Bahmeta, Ghaziabad, on his motorcycle bearing no. DL75AN7317 and when they reached near Petrol Pump of Bhojpur, a Santro car bearing no. DL7CE9249 (in short "offending vehicle"), being driven at high speed and negligent manner, hit the aforesaid motorcycle and further it hit another motorcycle on other side of the road and further it came to halt after colliding with an electricity pole. Further, it was mentioned that driver of the offending vehicle and his associate were caught at the spot. In view of above, petitioner claimed compensation of Rs. 15 lakhs.
3. After service of notice of petition both the respondents marked appearance. In his written statement, respondent No. 1 mentioned that his vehicle was not involved in the accident and denied Page 2 of 11 MACP No. 17/18; Akbar Ali vs. Amit Sharma & Ors. the allegations generally. Further, respondent No.2 filed written statement mentioning general defences and admitted that the offending vehicle was insured with it.
4. On the basis of pleadings, following issues were framed on 08.05.2018:
(i). Whether the Tribunal has territorial jurisdiction to conduct an inquiry into the accident claim case? (OPP).
(ii). Whether Mr. Akbar Ali suffered injury in a motor vehicular accident that occurred on 17.06.2017 at about 06:00 p.m., near Petrol Pump, Bhojpur, Modinagar, Ghaziabad, U.P. within the jurisdiction of PS Bhojpur, Ghaziabad, due to rash and negligent driving of motor vehicle bearing registration no. DL7CE9249 (Santro Car)? (OPP)
(ii). Whether the respondent no. 1/ Amit Sharma or Anchal Tyagi was driving Santro Car at the time of accident? (OPR2)
(iv). Whether the petitioner is entitled to the compensation, if so, to what amount and from whom? (OPP)
(v). Whether the petitioner is entitled to the interest on the award amount if so, at what rate of interest and for which period? (OPP)
(vi). Relief.
Page 3 of 11 MACP No. 17/18; Akbar Ali vs. Amit Sharma & Ors.5. In order to establish his claim, petitioner examined only one witness. He himself stepped into the witness box and deposed as PW1. On the strength of affidavit Ex.PW1/A, he deposed about the manner of accident, his medical treatment, etc. and relied upon the documents i.e. photocopy of his aadhaar card Ex.PW1/1; discharge card Ex.PW1/2, treatment record and medical bills Ex.PW1/3 and driving license Ex.PW1/4.
6. Respondents opted not lead to evidence.
7. I have heard Mohd. Rafi, counsel for petitioner; Sh. A.K. Chauhan, counsel for respondent no. 1 and Sh. Sanjeev Srivastava, counsel for respondent no. 2/insurance company. Record of the case has also been perused.
ISSUE NO.1:
8. The issue was raised by respondent No. 2 as petitioner and respondent No. 1 are residing outside the territorial jurisdiction of this court and moreover, the accident also happened beyond it. However, it is not disputed that the insurer (respondent No. 2) is having Regional Office at Laxmi Nagar, which falls under the territorial jurisdiction of this court. Law on the subject is clear that section 166 is benevolent provision for the victims of the accidents of negligent driving and therefore, the provision for territorial jurisdiction has to be interpreted in consistence with the object of facilitating the remedies for the victims Page 4 of 11 MACP No. 17/18; Akbar Ali vs. Amit Sharma & Ors. and there is no bar to a claim petition being filed at a place where insurance company has its business and in such case, neither there is any prejudice to any party nor there is failure of justice. Reference can be have to the decision of Supreme Court given in the case titled as Malati Sardar Vs. National Insurance Company Ltd and Ors., (2016) 3 SCC 43.
9. Issue No. 1, is accordingly, decided in favour of petitioner and against the respondents.
ISSUE NO. 2 and 3 :
10. In an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is tested on the touchstone of principle of preponderance of probabilities.
11. In order to his establish his case, petitioner (PW1) testified that the offending vehicle had hit his motorcycle and it was being driven in rash and negligent manner and at high speed and on account of the accident, he alongwith pillion rider Dilshad fell down on the road and sustained injuries and further, they were taken to Vidhyawati Memorial Hospital, Modi Nagar, U.P. The witness was crossexamined by the respondents, however, nothing could be extracted to discredit Page 5 of 11 MACP No. 17/18; Akbar Ali vs. Amit Sharma & Ors. his testimony. Moreover, it is observed that FIR in this case was registered without delay and the identity of the offending vehicle is not in dispute.
12. Ld. Counsel for respondents rightly pointed out that in the FIR, the name of the driver of offending vehicle was mentioned as Anchal Tyagi and Amit (respondent No. 1 herein) was stated to be sitting besides the driver and further the driver was found under the influence of liquor, however, in the petition Amit Sharma was shown as driver of the offending vehicle in order to escape from legal liability, which arises in case of driver causing accident under influence of liquor. On this aspect, it is evident that after investigation the charge sheet was filed against respondent No. 1 and the proceedings have not been challenged by him in any manner. Furthermore, the respondent No. 2 has not opted to examine IO of the case for seeking clarification and at the same time, no questions were put to PW1 regarding identity of the driver of the offending vehicle. Moreover, it is evident that FIR was lodged by Mehboob, real brother of petitioner, and it appears that he is not the eye witness of the accident and this being the case, it is not clear as to on what basis he mentioned in the FIR that Anchal Tyagi was driving the vehicle. Therefore, it cannot be ruled out that he might have disclosed about the identity of the driver on the basis of information received from public persons. In absence of any eye Page 6 of 11 MACP No. 17/18; Akbar Ali vs. Amit Sharma & Ors. witness' account, it cannot be concluded that Anchal Tyagi was the driver of the offending vehicle.
13. In a claim case filed under section 166 of M.V. Act, the most important issue to be decided is about the involvement of the offending vehicle causing accident and since that issue has been established on record, the issue related to the identity of driver of the offending vehicle looses significance.
14. Further, petitioner has established on the basis of medical records Ex.PW1/2 (discharge cards) that he suffered fracture of both bones of right leg and multiple fractures of ribs in the accident.
15. In view of this, it is proved that petitioner Akbar Ali sustained grievous injuries due to rash and negligent driving of offending vehicle by respondent No.1. Issue no. 2 and 3 are, accordingly, decided in favour of the petitioner and against the respondents.
ISSUE NO. 4:
16. 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 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 pittance.
Page 7 of 11 MACP No. 17/18; Akbar Ali vs. Amit Sharma & Ors.PAIN AND SUFFERING:
17. The petitioner has deposed that after the accident he was hospitalized thrice, from 17.06.2017 to 21.06.2017, 09.07.2017 to 18.07.2017 and 03.10.2017 to 06.10.2017. The discharge cards Ex.PW1/2 indicate that surgery was performed for treating his fractures in his leg. It is also clear that it took at least 6 months for his treatment and recovery. Considering the overall circumstances, a sum of Rs.75,000/ is awarded to the petitioner under this head.
MEDICAL EXPENSES:
18. The petitioner has claimed medical expenses to the tune of Rs.1,23,295/. It is observed that medical bills Ex.PW1/3 have not been challenged on any count and all the bills are in original. In view of this, a sum of Rs.1,23,295/ is granted to the petitioner as medical expenses.
LOSS OF INCOME (DURING TREATMENT):
19. The petitioner has deposed that he was running Atta Chakki and was earning Rs.10,000/ to Rs. 15,000/ per month, however, he has not produced any evidence to prove his income. Considering that the petitioner is the permanent resident of Ghaziabad, U.P and was working there at the time of accident, his income has to be assessed on the basis of minimum rates of wages prescribed in U.P. for unskilled category. Ld. Counsel for petitioner has filed the internet generated Page 8 of 11 MACP No. 17/18; Akbar Ali vs. Amit Sharma & Ors. details of minimum wages, which was Rs.7400/ per month for the said category at the relevant time. Further, medical records suggest that petitioner took at least 6 months for recovery. Accordingly, a sum of Rs.44,400/ (Rs.7400 X 6) is awarded to the claimant for loss of income during his treatment.
CONVEYANCE, ATTENDANT & SPECIAL DIET CHARGES:
20. Though, no specific evidence has been led in this regard but considering the long period of treatment and nature of injuries suffered by the petitioner, an inference can be drawn that petitioner had to spend considerable amount to visit hospital number of times, that too with the assistance of someone and for his special diet for the purpose of early recovery, post surgery and therefore, a sum of Rs.30,000/ is awarded under this head.
21. Thus, the compensation awarded to the petitioner is summarized as under: Sl. Head of compensation Amount No.
1. Pain and Suffering Rs. 75,000/
2. Medical Expenses Rs.1,23,295/
3. Loss of Income (during Rs. 44,400/ treatment
4. Conveyance, Attendant Rs. 30,000/ and Special Diet Page 9 of 11 MACP No. 17/18; Akbar Ali vs. Amit Sharma & Ors. expenses TOTAL Rs.2,72,695/ (rounded off Rs.2,73,000/)
22. Now, the question arises as to which of the respondents is liable to pay the compensation amount. The respondent No.1 is the principal tort feasor being driver of the offending vehicle and is also vicariously liable, being registered owner. However, as insurance company has contractual and statutory liability to indemnify the insured and in this case, insurance company has not been able to prove that any term or condition of insurance policy was breached/violated by insured, therefore, respondent no. 2/insurance company becomes liable to pay the aforesaid compensation amount. Issue no. 4 is, accordingly, decided in favour of petitioner and against the respondents.ISSUE NO. 5
23. The petitioner has conducted the proceedings in his case diligently. Therefore, he is entitled for interest @ 9% per annum on the aforesaid award amount from the date of filing of the petition till date of realization. (Refer: "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors, MAC. APP. 165/2011 decided on 22.02.2016).Page 10 of 11 MACP No. 17/18; Akbar Ali vs. Amit Sharma & Ors.
RELIEF:
24. In view of the findings on said issues, this Tribunal awards a total compensation of Rs.2,73,000/ (Rs. Two lacs seventy three thousand only) alongwith interest @ 9% per annum in favour of petitioner and against the respondent no. 2/Insurer w.e.f. date of filing of the petition till the date of its realization and same is required to be deposited with this Tribunal within 30 days.
VIVEK Digitally signed by
VIVEK KUMAR GULIA
KUMAR Date: 2019.05.16
GULIA 16:13:24 +0530
Announced in the open (Vivek Kumar Gulia)
Court on 15.05.2019 Presiding OfficerMACT (East)
(Total 11 pages) Karkardooma Courts, Delhi
Page 11 of 11 MACP No. 17/18; Akbar Ali vs. Amit Sharma & Ors.