Delhi District Court
Neha Pathak vs . Raj Kumar Giri & Ors. on 4 June, 2022
IN THE COURT OF MS. MANJUSHA WADHWA
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
NEHA PATHAK VS. RAJ KUMAR GIRI & ORS.
DAR NO. 332/17
Ms. Neha Pathak
D/o Sh. Bhaskar Pathak,
R/o H.No. L-143, Road No. 7B,
Mahipalpur, New Delhi.
......Petitioner/Injured
Versus
1. Sh. Raj Kumar Giri @ Raju
S/o Sh. Khagu Giri,
R/o C-6/6533, Vasant Kunj, New Delhi.
2. Sh. Rahul Bedi
S/o Sh. Jasbir Singh,
R/o D-7/7001, Vasant Kunj, New Delhi.
3. M/s National Insurance Co. Ltd.
803A, 8th Floor, Tower C, Konnectus Building,
New Delhi-110002.
.....Respondents
DAR NO. 332/17 & DAR No. 329/17 Page 1 of 24
IN THE MATTER OF:
LALLU VS. RAJ KUMAR GIRI & ORS.DAR NO. 329/17
Sh. Lallu S/o Sh. Ramesh Chand R/o Gaon Kainjari, Kanpur, Uttar Pradesh.
......Petitioner/Injured Versus
1. Sh. Raj Kumar Giri @ Raju S/o Sh. Khagu Giri, R/o C-6/6533, Vasant Kunj, New Delhi.
2. Sh. Rahul Bedi S/o Sh. Jasbir Singh, R/o D-7/7001, Vasant Kunj, New Delhi.
3. M/s National Insurance Co. Ltd.
803A, 8th Floor, Tower C, Konnectus Building, New Delhi-110002.
.....Respondents
Date of filing of claim petitions : 10.03.2017
Date of framing of issues : 25.04.2017
Date of concluding arguments : 24.05.2022
Date of decision : 04.06.2022
AWARD/JUDGMENT
1. The claim for compensation in the present Detailed Accident Reports (DARs) pertain to injuries suffered by petitioner Ms. Neha Pathak of DAR No. 332/17 and petitioner Lallu of DAR No. 329/17 in a road accident that took place on 23.07.2016, at about 07.30 pm, infront of DAR NO. 332/17 & DAR No. 329/17 Page 2 of 24 Gate No. 8, C-8, Vasant Kunj, New Delhi, regarding which an FIR bearing no.380/16, under Sections 279/337/338 IPC was registered at PS Vasant Kunj (North). The offending vehicle involved in this case is a car bearing registration no. DL-8CAF-3570, which at the relevant time of accident was being driven by respondent no. 1, owned by respondent no.2 and insured with respondent no. 3.
2. The case of petitioners, briefly stated, is that on the aforesaid date, time and place of accident, the petitioner Ms. Neha Pathak of DAR No. 332/17 along with her sister Akansha, were going from Mahipalpur to Sarojini Nagar on a TSR bearing registration No. DL-1RJ-2459, which was being driven by petitioner Kuldeep@Lallu of DAR No. 329/17 as per traffic rules on the correct side of the road and when they reached in front of Gate No. 8, C-8, Vasant Kunj, New Delhi, all of a sudden, one Maruti Swift Car bearing registration No. DL-8CAF-3570, which was being driven by respondent no. 1 in a rash and negligent manner, in contravention of traffic rules and without blowing any horn, came and hit the TSR due to which both the petitioners received multiple injuries. It is further stated that the petitioner Neha Pathak was removed to Indian Spinal Centre Hospital and the petitioner Lallu was removed to Trauma Centre, AIIMS Hospital for treatment, where their MLCs were prepared.
3. The respondent nos. 1 and 2 have filed joint reply to the DAR stating that while the respondent no. 1 was driving the vehicle at a very slow speed, one three-wheeler came from wrong side and hit against the offending vehicle, which caused injuries to passengers of the TSR. It is further stated that respondent no. 1 was having a valid driving license at the time of accident and the offending vehicle was insured with respondent no. 3/M/s National Insurance Company Ltd. w.e.f. 15.05.2016 to 14.05.2017.
4. The respondent no. 3/Insurance Company has filed reply admitting that on the alleged date of accident, the offending vehicle stood insured with them in the name of respondent no. 2 w.e.f. 15.04.2016 to 14.04.2017. The respondent no. 3, however, took additional plea that as DAR NO. 332/17 & DAR No. 329/17 Page 3 of 24 per medical report issued by Safdarjung Hospital, the driver of the offending vehicle was under the influence of intoxication at the time of accident and the extent of alcohol was detected as .294g/100ml, which is beyond the permissible limit of 0.03g/100ml as prescribed under Section 185 of the Motor Vehicles Act. In this regard, the Insurance company has relied upon the judgment of Hon'ble High Court of Delhi in case of "The New India Assurance Co. Ltd. Vs. Smt. Parvinder Kaur Chawla & Ors." MAC Appeal No. 224/2014, decided on 23.05.2016.
5. It is pertinent to mention herein that vide order dated 25.04.2017 passed by Ld. Predecessor of this tribunal, both the DARs as arising out of the same accident, were directed to be consolidated for the purpose of trial as well as decision and DAR No. 332/17 was directed to be treated as a lead case for the purpose of recording of evidence.
6. On 25.04.2017, the following consolidated issues were framed by the Ld. Predecessor of this tribunal as :-
1. Whether Ms. Neha Pathak (injured in the MACP No. 332/17) and Sh. Lallu (injured in DAR No. 329/17) sustained injuries in the accident which occurred on 23.07.2016 at about 07.30 pm, infront of Gate No. 8, C-8, Vasant Kunj, New Delhi caused by rash and negligent driving of vehicle No. DL-8CAF-3570 driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. Heard arguments advanced by Ms. Kanta Choudhary, Advocate for the petitioner and Sh. R.K. Tripathi, Advocate for respondent no.3/Insurance Company. However, none has turned up on behalf of respondent no. 1 and respondent no. 2 for addressing final arguments. The case record has also been perused. The finding on the aforesaid issues is reproduced in succeeding paragraphs hereinafter.
ISSUE No. 1 DAR NO. 332/17 & DAR No. 329/17 Page 4 of 24Whether Ms. Neha Pathak (injured in the MACP No. 332/17) and Sh. Lallu (injured in DAR No. 329/17) sustained injuries in the accident which occurred on 23.07.2016 at about 07.30 pm, infront of Gate No. 8, C-8, Vasant Kunj, New Delhi caused by rash and negligent driving of vehicle No. DL-8CAF-3570 driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 ?OPP.
8. The onus to prove this issue was upon the petitioners. In order to prove negligence of respondent no. 1, the petitioners have examined themselves as PW1 and PW2 who tendered their evidence by way of affidavit as Ex. PW1/A and Ex. PW2/A respectively wherein they have narrated the mode and manner of accident as well as the injuries sustained by them and treatment taken therefrom.
9. During cross-examination, PW-1 deposed that she along with her sister was travelling in the TSR and the offending vehicle had hit the TSR from the right side. It is relevant to note herein that PW2 Sh. Kuldeep@ Lallu was not cross examined at all on behalf of the respondents. No effective cross examination regarding negligence has been led on behalf of the respondents.
10. It is explicit form the testimony of PW-1 and PW2 that occurrence of accident has not been disputed and the testimony of these witnesses in this regard has gone unrebutted. Nothing material could be elicited from the cross-examination of PW-1 and PW2 to disbelieve or discard their testimonies. The testimony of PW-1 and PW2 have been duly corroborated with the DAR filed by the IO as Ex. PW1/7 (colly). Moreover, it has not been disputed that respondent no. 1 has been charge-sheeted in the aforesaid FIR for offences punishable under Sections 279/337/338 IPC for rash and negligent driving of the offending vehicle. The Hon'ble Apex Court in Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 has observed that filing of charge sheet against the driver prima facie points towards his complicity in driving the vehicle negligently and rashly. It has been further observed that even when the accused were to be acquitted in the criminal case, the same may be of no effect on the assessment of the liability DAR NO. 332/17 & DAR No. 329/17 Page 5 of 24 required in respect of motor accident cases by the Tribunal.
11. Pertinently, Respondent no. 1 himself was the best witness who could have stepped into the witness box to rebut his involvement in the aforesaid accident, which he has failed to do. Therefore, an adverse inference is drawn against the respondent no. 1/driver in terms of judgment of Hon'ble High Court of Delhi passed in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
12. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters, the facts are required to be established on preponderance of probabilities and not beyond reasonable doubt, as are required in a criminal prosecution. Reference in this regard is made to the judgment of Hon'ble Apex Court reported as (2009) 13 SC 530 in Bimla Devi and others Vs. Himachal Road Transport Corporation and others, wherein it has been observed that strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants and the claimants were merely to establish their case on the touchstone of preponderance of probability.
13. In view of foregoing discussion, it is held that oral evidence led on record by the petitioners on this issue is duly substantiated by the documentary evidence i.e. chargesheet, and thus, it stands proved on preponderance of probabilities that the aforesaid accident took place due to rash and negligent driving of the offending vehicle bearing no. DL- 8CAF-3570 which was being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 at the relevant time of accident. Hence, this issue is decided in favour of the petitioners and against the respondents.
ISSUE NO.2 Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
14. As the issue no.1 has been proved in favour of the petitioners, DAR NO. 332/17 & DAR No. 329/17 Page 6 of 24 they have become entitled to be compensated for the injuries suffered by them in the accident, but the computation of compensation and liability to pay the same are required to be decided.
15. In terms of provisions contained in Section 168 of the Motor Vehicle Act, 1988, the compensation which is to be awarded by this tribunal is required to be 'just'. In injury cases, a claimant is entitled to two different kinds of compensation i.e. pecuniary as well as non-pecuniary damages. The Hon'ble Apex Court in Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343) has laid down heads under which compensation is awarded in personal injury cases:-
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
16. Having considered the ratio of aforesaid judgment, the compensation payable to the petitioners is assessed hereinafter under the following heads:-
Compensation in DAR No. 332/17 qua the injured Neha Pathak
(i) Medical or Treatment Expenses
17. The petitioner in her affidavit Ex. PW1/A has tendered on DAR NO. 332/17 & DAR No. 329/17 Page 7 of 24 record her MLC as Ex. PW-1/1, discharge summary as Ex. PW1/2, medical prescriptions as Ex. PW1/3 (colly) and medical bills as Ex. PW1/4 (colly). As per MLC dated 23.07.2016, the petitioner was a case of pain and swelling with deformity in right hip and femur and abrasion on left foot. As per discharge summary/credit final bill Ex. PW1/2, the petitioner was admitted in Indian Spinal Injuries Centre on 24.07.2016 and was discharged on 09.08.2016. The discharge summary of petitioner further reflects the name of sponsor as Paramount Healthcare TPA-Credit. During cross-examination, PW-1 deposed that she incurred around Rs. 4,20,000/- on her treatment and out of the said amount, Rs. 3,70,000/- or Rs. 3,80,000/- was reimbursed by the Insurance Company under Mediclaim policy. Therefore, it is held that the amount as shown in credit final bill Ex. PW1/2 has been reimbursed to the petitioner.
18. The petitioner has also tendered on record his medical bills Ex. PW1/4 which are totalling to a sum of Rs. 4,282/-. Needless to say, the insurance company has not led any evidence to show that the said bills do not relate to the injuries suffered by the petitioner in the aforesaid accident. Thus, the testimony of PW-1 that she spent the aforesaid amount towards medical expenses remained unrebutted and uncontroverted. In the absence of any plausible evidence produced by respondents on record, there is no reason to disbelieve the testimony of PW-1 that she has spent the aforesaid amount towards medical expenses. Hence, she is held entitled to Rs. 4,282/- towards her medical expenses.
(ii) Loss of actual earnings
19. The petitioner has claimed in her affidavit Ex. PW1/A that she was working as cabin crew with M/s Jet Airways Pvt. Ltd. and was drawing a salary of Rs. 70,000/- per month along with other facilities. In order to prove her employment, the petitioner has tendered on record copy of her employment ID as Ex. PW1/6 (OSR) which reveals that she was working as Cabin Crew with M/s Jet Airways Pvt. Ltd. The petitioner has also placed on record pay slips for the month of February and March DAR NO. 332/17 & DAR No. 329/17 Page 8 of 24 2016 Ex. PW1/5 (colly). Perusal of pay slip for the month of February, 2016 shows that the gross salary as per form 16 is Rs. 4,99,540.42/-, and the same after deduction of income tax is Rs. 4,76,320/-, which is her annual salary. Hence, the monthly salary of petitioner comes to Rs. 39,693/- (Rs. 4,76,320/12). As per certificate dated 07.07.2017 issued by the Manager(Human Resources) of Jet Airways India Ltd. which is part of Ex. PW-1/5(Colly), the petitioner met with an accident on 23.07.2016 and resumed her duties on 03.01.2017. It is stated in the certificate that the entire period of absence has been treated as leave on account of accident.
20. During cross examination, PW-1 deposed that the doctors had advised her one-year bed rest, but she resumed her duties after around eight months. She further deposed that she was not performing her duties in the flight during accident period and no amount was being paid to her by the company and her leaves were without pay. She further deposed that after the accident, she resumed her duties in the same company and got promoted and her present salary is around Rs. 80,000/- to Rs. 90,000/- per month.
21. Ld. Counsel for the respondent no. 3/insurance company submitted that the petitioner has not proved her employment and pay slips. In this regard, suffice is to state that the insurance company has not objected to the exhibition of documents. Further, as per Rule 28 of Claim Tribunal Agreed procedure, as amended on 08.01.2021, the insurance company was supposed to depute an investigator for verification of documents, which it has not done so far.
22. In view of the foregoing discussion and having considered the duration of leave period of the petitioner of about five months, this tribunal deems it just and reasonable to compensate her for loss of earning equivalent to a period of five months. Therefore, under this head, s he is being awarded an amount of Rs. 1,98,465/- (Rs. 39,693/- per month X 5 months).
DAR NO. 332/17 & DAR No. 329/17 Page 9 of 24(iii) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
23. As stated above, the petitioner had suffered grievous injuries in the accident. Though, it is not possible to exactly compensate her for the shock, pain and sufferings etc. which she had actually suffered because of the above injuries and disability, but an effort has to be made to compensate her for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by the petitioner and duration of the treatment taken by her etc., an amount of Rs.20,000/- each is being awarded to her towards mental and physical shock & for pain and sufferings. Further, an amount of Rs.20,000/- is also awarded to her towards the loss of amenities suffered by her during the said period of her treatment. Thus, she is awarded total amount of Rs.60,000/- under this head.
(iv) Conveyance, Special Diet and Attendant Charges
24. The petitioner in her affidavit Ex. PW1/A is silent with regard to the amount spent towards special diet and conveyance. Still this tribunal can very well take note of the requirement of conveyance for petitioner for frequently visiting the hospitals and doctors in connection with her treatment and special diet for her early recovery from the injuries suffered because of the accident. Hence, an amount of Rs.10,000/- is being awarded to the petitioner towards conveyance and Rs. 3,000/- per month for five months towards the requirement of special diet.
25. The petitioner in her affidavit Ex. PW1/A has claimed that she was on bed rest for a period of four to six months. Keeping in view the duration of treatment of the petitioner, the fact cannot be overlooked that the petitioner would have required the service of attendant for looking after her. Therefore, a sum of Rs. 6,000/- per month for five months is DAR NO. 332/17 & DAR No. 329/17 Page 10 of 24 being awarded to the petitioner towards attendant charges. The petitioner is thus entitled to an amount of Rs.55,000/- (Rs.10,000/- + Rs. 3,000/- per month X 5 + Rs. 6,000/- per month X 5 months) is being awarded to her under this head.
(v) Future treatment expenses
26. The petitioner in her affidavit Ex. PW1/A has claimed that she had undergone operation and rod and screws were inserted in her right leg. In view thereof, this tribunal deems it just that the expenses of removal of implant, if any, shall be paid directly by Respondent no. 3 to the company concerned on production of requisite invoices, if not reimbursed by the employer under any scheme/insurance policy.
Issue No.3/Relief
27. In view of foregoing discussion, the petitioner is thus awarded a sum of Rs. 3,17,747/- (Rs. 4,282/- + Rs. 1,98,465/- + Rs. 60,000/- + Rs. 55,000/-) (Rupees Three Lakhs Seventeen Thousand Seven Hundred Fourty Seven only) along with 6% interest from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the award amount.
RELEASE
28. Out of the awarded amount, 50% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in FDR for a period of one year. The amount of FDRs on maturity would be released in her savings/MACT Claims SB Account opened/to be opened as directed vide order dated 19.02.2018 and the remaining 50% amount is directed to be released into her above said account, which can be withdrawn through withdrawal form and utilized by her.
DAR NO. 332/17 & DAR No. 329/17 Page 11 of 24Compensation in DAR No. 329/17 qua the injured Lallu
(i) Medical or Treatment Expenses
29. The petitioner in his affidavit Ex. PW2/A has tendered on record his MLC as Ex. PW-2/1, discharge summary as Ex. PW2/2 (colly), medical prescriptions as Ex. PW2/3 and copy of his Aadhar card as Ex. PW2/4. As per discharge summary of petitioner Ex. PW2/2 (colly), the petitioner was admitted in JPNA Trauma Centre on 23.07.2016 and was discharged on 24.07.2016. His discharge summary further reflects that the petitioner was diagnosed with soft tissue injury and suffered wound laceration approx 6X2X1 cm over forehead, for the treatment of which suturing and aseptic dressing was done. The petitioner has not placed on record his medical bills in respect of injuries sustained in the accident. Hence, no amount is being given to him towards his medical expenses.
(ii) Loss of actual earnings
30. The petitioner has claimed in his affidavit Ex. PW2/A that he was driver by profession and used to earn Rs. 20,000/- per month. However, he has not placed on record any document in this regard. Since the profession and income of the petitioner have not been established on record, the minimum wages of skilled person is taken into account as per rates prevalent in Delhi, which was Rs. 11,622/- per month at the time of accident. Keeping in view the nature of injuries sustained by him, this tribunal deems it just and reasonable to compensate him for loss of earning equivalent to a period of 15 days. Therefore, under this head, he is being awarded an amount of Rs. 5,811/- (Rs.11,622/30 X 15 days).
(iii) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
31. As stated above, the petitioner had suffered soft tissue injury in the accident. Though, it is not possible to exactly compensate him for DAR NO. 332/17 & DAR No. 329/17 Page 12 of 24 the shock, pain and sufferings etc. which he had actually suffered because of the above injuries, but an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by the petitioner and duration of the treatment taken by him etc., an amount of Rs.5,000/- each is being awarded to him towards mental and physical shock & for pain and sufferings. Further, an amount of Rs.5,000/- is also awarded to him towards the loss of amenities suffered by him during the said period of treatment. Thus, he is awarded total amount of Rs.15,000/- under this head.
(iv) Conveyance, Special Diet and Attendant Charges
32. The petitioner in his affidavit Ex. PW2/A is silent with regard to the amount spent towards special diet and conveyance. Still this tribunal can very well take note of the requirement of conveyance for petitioner for frequently visiting the hospitals and doctors in connection with his treatment and special diet for his early recovery from the injuries suffered because of the accident. Hence, an amount of Rs.2,000/- each is being awarded to the petitioner towards the requirement of conveyance and special diet. No amount is being given to the petitioner towards attendant charges as he suffered simple injury, for which services of the attendant was not required. Therefore, a total amount of Rs.4,000/- (Rs.2,000/- + Rs. 2,000/-) is being awarded to him under this head.
Issue No.3/Relief
33. In view of foregoing discussion, the petitioner is thus awarded a sum of Rs.24,811/- (Rs. 5,811/- + Rs. 15,000/- + Rs.4,000/-) (Rupees Twenty Four Thousand Eight Hundred Eleven only) along with 6% interest from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the DAR NO. 332/17 & DAR No. 329/17 Page 13 of 24 award amount.
RELEASE
34. The entire award amount is directed to be released in the saving bank of petitioner opened/to be opened near the place of his residence, as directed vide order dated 19.02.2018, through RTGS/NEFT or any other electronic mode.
LIABILITY
35. Ld. Counsel for the insurance company submitted that Insurance Company is not liable to pay the compensation to the petitioners as the respondent number 1 was driving the vehicle under the influence of liquor and thus there is breach of terms and conditions of insurance policy.
36. To prove the aforesaid defence, the Insurance Company has examined IO/SI Manish Kumar as R3W1 who deposed that the driver of offending vehicle was medically examined vide MLC No. 167080/2016 at Safdarjung Hospital through Constable Askaran and as per MLC Ex R3W1/A, the BAC (breath of alcoholic consumption) of driver of the offending vehicle is 0.294g/100 ml. He further deposed that he has mentioned the extent of alcohol of driver of the offending vehicle as 0.294mg/100 ml in the chargesheet and the mistake in mentioning the quantity different from that mentioned in MLC was not intentional but due to inadvertence only. He further deposed that he is aware about the alcohol limit which is 30mg/100ml. He further deposed that he has not added Section 185 Cr.P.C. in the criminal case because he was told by the doctor that the alcohol consumption in the present case was within the limits.
DAR NO. 332/17 & DAR No. 329/17 Page 14 of 2437. The Insurance Company has also examined Dr. Sachin Bajaj, Senior Medical Officer, Safdarjung Hospital, New Delhi as R3W2 who has also proved on record the copy of MLC No. 167080 dated 23.07.2016 of patient Raj Kumar Giri @ Raju prepared by Dr. Arun Kumar as Ex. R3W2/B and he has identified the handwriting and signatures of Dr. Arun Kumar on the said MLC. He further deposed that as per the said MLC, the patient was under the influence of liquor to the extent of 0.294 gms/100 ml, which is equivalent to .294%.
38. A bare perusal of the MLC Ex. R3W2/B shows that Respondent no. 1/ Raj Kumar Giri @ Raju was under the influence of alcohol at the time of accident and the alcohol consumption by him is to the extent of 0.294g/100 ml, which is beyond the prescribed limit of 30mg/100 ml of blood.
39. Ld. Counsel for the petitioner has relied upon the judgment of Hon'ble High Court of Himachal Pradesh reported as 2009 LawSuit(HP)552, Khem Chand Vs Uma Devi and Ors and judgment of Hon'ble High Court of Delhi passed in MAC App 678/2011 titled as Universal Sompo General Insurance Company Ltd. Vs Vijay and Vicky and another decided on 09.07.2012, wherein it has been held that such defence is not available to the insurance company under section 149 of Motor Vehicle Act, 1988. Relevant portion of Khem Chand Vs Uma Devi and Ors(supra) is reproduced hereinunder as:-
"4. The law is very well settled that a claim which falls within the purview of an Act policy i.e. a liability falling within the ambit of Section 147 of the Motor Vehicles Act, 1988 (the Act) can only be contested by the Insurance Company on the grounds available to it under Section 149 of the Act. It is not permitted to contest the proceedings on any other grounds. Intoxication of the driver is not a ground available to the Insurance Company under Section 149 of the Act. Therefore, the liability, which is statutory under Section 147 of the Act, has to be satisfied by the insurer. It may be clarified that in case the insurer in addition to the liability which it is bound to cover under the Act DAR NO. 332/17 & DAR No. 329/17 Page 15 of 24 covers other liability then in case of such extended liability, it may raise the defences available to it as per terms of the policy, but as far as statutory liability is concerned, the insurer has no authority to incorporate any term in the policy which is not contemplated in terms of Section 149 of the Act. Therefore, the Insurance Company could not have been permitted to raise this defence and it could not be permitted to recover the awarded amount from the insured."
40. The ratio of aforesaid judgments is that intoxication of driver is not a ground available to the insurance company under section 149 of Motor Vehicle Act, and therefore, the insurance company has to satisfy the statutory liability. It is well settled that the insurance company cannot travel beyond the ambit of section 149 of Motor Vehicle Act, 1988 which deals with duty of insurance company to satisfy judgments and awards against persons insured in respect of third-party risks. Under subsection (2) of said section, the insurance company can defend its liability to pay awarded compensation on the grounds mentioned therein.
41. Ld. Counsel for the respondent no. 3/insurance company has relied upon the judgment dated 23.05.2016 passed in MACA No. 224/2014 titled as New India Assurance Co. Ltd. Vs. Smt. Parvinder Kaur Chawla & Anr. The relevant portion of said judgment is reproduced hereinunder as:-
"6. Having head the learned counsel for the appellant and gone through the tribunal's record, this Court finds merit in the appeal. Once a finding had been returned to the effect that the driver (third respondent) was under the influence of alcohol while driving the vehicle, such fact not only constituting a penal offence under Section 185 of Motor Vehicles Act but also a fundamental breach of terms and conditions of insurance policy, the insurer should have been allowed to recover the amount paid as compensation to the claimants (third party) from the insured/the owner of the vehicle and the driver."DAR NO. 332/17 & DAR No. 329/17 Page 16 of 24
42. Although the Hon'ble High Court of Delhi in its later judgment has held that driving vehicle under influence of alcohol constitutes fundamental breach of terms and conditions of the insurance policy, the earlier judgment passed by the bench of same strength was not brought to the notice of the Hon'ble High Court of Delhi. The fact cannot be overlooked that the defence of intoxication of driver is not a ground referred to under section 149(2) of Motor Vehicle Act, 1988 which deals with statutory defense available to the insurance company to constitute breach of terms and conditions of the insurance policy.
43. In view of the foregoing discussion, the respondent no. 3/insurance company cannot avoid its liability on the ground of breach of terms and conditions of the insurance policy. All the respondents are though being held jointly and severally liable to pay the awarded amount of compensation to petitioners, respondent no. 3 being insurer of the offending vehicle is held liable to deposit the awarded amount with the UCO Bank, Patiala House Court Branch by RTGS/NEFT/IMPS in bank account of this tribunal being maintained with the above said bank within 30 days from today. In case even after passage of 90 days from today, respondent no. 3 fails to deposit this compensation with interest, respondent no. 3 shall be liable to pay interest at the rate of 9% per annum for the period of delay beyond 90 days from today and in light of judgment of the Hon'ble High Court of Delhi passed in the case of New India Assurance Company Limited Vs. Kashmiri Lal2007 ACJ 688, this compensation shall be recovered by attaching the bank account of R-3 with a cost of Rs.5,000/-.
44. The respondent no. 3 shall inform the petitioners and their counsels through registered post that the awarded amount has been deposited so as to facilitate them to collect the same.
45. The copy of this award be given to the parties free of cost or be sent by email. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in DAR NO. 332/17 & DAR No. 329/17 Page 17 of 24 FAO no.842/2003 dated 12.12.2014.
46. Further, Nazir is directed to maintain the record in Form XVIII as per the directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021.
47. The particulars of Form-XVII of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the Rajesh Tyagi Vs. Jaibir Singh & Ors.(supra) on 08.01.2021, are as under:-
1. Date of the accident 23.07.2016
2. Date of filing of Form I- First Accident NA Report (FAR)
3. Date of delivery of Form-II to the NA victim(s)
4. Date of receipt of Form-III from the NA Driver
5. Date of receipt of Form-IV from the owner NA
6. Date of filing of the Form-V-Interim NA Accident Report (IAR)
7. Date of receipt of Form-VIA and Form NA VIB from the Victim (s)
8. Date of filing of Form-VII-Detailed 10.03.2017 Accident Report (DAR)
9. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so,whether any action/direction warranted?
10. Date of appointment of the Designated Not given Officer by the Insurance Company.
11. Whether the Designated Officer of the No Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No deficiencies on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the claimant(s) of Legal offer not filed.
the offer of the Insurance Company.
DAR NO. 332/17 & DAR No. 329/17 Page 18 of 2414. Date of the award 04.06.2022
13. Date of response of the claimant(s) of the offer of the Insurance Company.
Legal offer not filed.
14. Date of the award 04.06.2022
15. Whether the claimant(s) were directed to open savings bank account(s) near Yes their place of residence?
16. 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 Adhaar 19.02.2018 Card and the direction to the bank not issue any cheque book/debit card to the claimant (s) and make an endorsement to this effect on the passbook(s).
17. Date on which the claimant(s) produced the passbook of their savings bank account near the place of Yet to furnish.
their residence along with the
endorsement, PAN Card and Adhaar
Card?
18. Permanent Residential Address of the Petitioner of DAR No. Claimant(s) 332/17 is resident of H.No. L-143, Road No. 7B, Mahipalpur, New Delhi.
Petitioner of DAR No. 329/17 is resident of Gaon Kainjari, U.P.
19. Whether the claimant(s) savings bank Yet to furnish account(s) is near his place of residence?
20. Whether the claimant(s) were examined at the time of passing of the award to No ascertain his/their financial condition?
DAR NO. 332/17 & DAR No. 329/17 Page 19 of 2448. Files be consigned to Record room after completion of necessary formalities. Separate files be prepared for compliance report and be put up on 16.09.2022.
Announced in the open court. (Manjusha Wadhwa) on 04.06.2022 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format DAR NO. 332/17 & DAR No. 329/17 Page 20 of 24 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM XVI IN DAR NO. 332/17
1. Date of accident : 23.07.2016
2. Name of the injured : Neha Pathak
3. Age of the injured : 23 years
4. Occupation of the injured : Cabin Crew with Jet Airways
5. Income of the injured : Rs.39,693/- per month
6. Nature of injury : Grievous
7. Medical treatment taken by the injured: Indian Spinal Injuries Centre
8. Period of hospitalization : 24.07.2016 to 09.08.2016
9. Whether any permanent disability?: Nil
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 4,282/-
(ii) Expenditure on conveyance Rs. 10,000/-
(iii) Expenditure on special diet Rs. 15,000/-
(iv) Cost of nursing/attendant Rs. 30,000/-
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs.1,98,465/-
(vii) Any other loss which may require Nil
any special treatment or aid to the
injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and Rs. 20,000/-
physical shock
(ii) Pain and suffering Rs.20,000/-
(iii) Loss of amenities of life Rs.20,000/-
(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 DAR NO. 332/17 & DAR No. 329/17 Page 21 of 24
(i) Percentage of disability assessed Nil and nature of disability as permanent or temporary
(ii) Loss of amenities or loss of Nil expectation of life span on account of disability.
(iii) Percentage of loss of earning Nil
relation to disability
(iv) Loss of future income Nil
14. Total Compensation Rs.3,17,747/-
15. Interest Awarded 6% pa from date of filing of
DAR till deposit in 30 days and
9% after 90 days.
16. Interest amount up to the date of Rs. 99,868.32
award
17. Total amount including interest Rs. 4,17,615.32 (rounded off
to Rs. 4,18,000/-)
18. Award amount released 50% amount
19. Award amount kept in the FDRs/ 50% amount
Motor Accident Claims Annuity
Deposit (MACAD)
20. Mode of disbursement of the award Through bank
amount to the claimant (s)
21. Next date for compliance of the 16.09.2022
award
(Manjusha Wadhwa)
PO/MACT, New Delhi
04.06.2022
DAR NO. 332/17 & DAR No. 329/17 Page 22 of 24
SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM XVI IN DAR NO. 329/17
1. Date of accident : 23.07.2016
2. Name of the injured : Lallu
3. Age of the injured : 24 years
4. Occupation of the injured : Minimum wages for unskilled worker in Delhi
5. Income of the injured : Rs.11,622/- per month
6. Nature of injury : Simple
7. Medical treatment taken by the injured: JPNA Trauma Centre
8. Period of hospitalization : 23.07.2016 to 24.07.2016
9. Whether any permanent disability?: Nil
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Nil
(ii) Expenditure on conveyance Rs. 2,000/-
(iii) Expenditure on special diet Rs. 2,000/-
(iv) Cost of nursing/attendant Nil
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs.5,811/-
(vii) Any other loss which may require Nil
any special treatment or aid to the
injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and Rs.5,000/-
physical shock
(ii) Pain and suffering Rs.5,000/-
(iii) Loss of amenities of life Rs.5,000/-
(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 Nil and nature of disability as permanent or temporary DAR NO. 332/17 & DAR No. 329/17 Page 23 of 24
(ii) Loss of amenities or loss of Nil expectation of life span on account of disability.
(iii) Percentage of loss of Nil
earning relation to
disability
(iv) Loss of future income Nil
14. Total Compensation Rs.24,811/-
15. Interest Awarded 6% pa from date of filing of
DAR till deposit in 30 days and
9% after 90 days.
16. Interest amount up to the date of Rs. 7,798.13
award
17. Total amount including interest Rs. 32,609.13/- (rounded off
to Rs. 33,000/-)
18. Award amount released Entire amount
released
19. Award amount kept in the FDRs/ Nil
Motor Accident Claims Annuity
Deposit (MACAD)
20. Mode of disbursement of the award Through bank
amount to the claimant (s)
21. Next date for compliance of the 16.09.2022
award
(Manjusha Wadhwa)
PO/MACT, New Delhi
04.06.2022
DAR NO. 332/17 & DAR No. 329/17 Page 24 of 24