Delhi District Court
Kartikey @ Kartik vs Rohan Kumar on 1 February, 2018
IN THE COURT OF SH. RAKESH KUMAR-III:
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :02
(CENTRAL):DELHI
MACT No.: 56546-16
Kartikey @ Kartik
S/o Sh. Rajeev Mittal
R/o B-1328, Shastri Nagar,
Delhi. ................Petitioner
VERSUS
1. Rohan Kumar
S/o Sh. Kailash Chand
R/o H. No. 1571, Block-B,
Shastri Nagar,
New Delhi-52. (Driver)
2. Naresh Kumar
S/o Sh. Amir Singh
R/o H. No. 74, Block-M,
Shastri Nagar, Delhi-52. (Regd. Owner)
3. Future Generali India Insurance Company Ltd.
At Ist Floor, Unit No. 110-115, Krishna Apra Business,
Square Plot No.D4-6, Netaji Subhash Palace,
Pitampura, Delhi. (Insurer) ......... Respondents
Date of Institution: 21/08/014 (DAR)
Date of reserving order/judgment: 01/02/2018
Date of pronouncement : 01/02/2018
MACT No. 56546-16 Kartikey @ Kartik Vs Rohan Kumar & Ors Page No. 1/12
JUDGMENT-CUM-AWARD:
INFORMATION IN TERMS OF PROVISIONS OF THE MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP) Date of Accident 10/07/2014 Date of intimation of the accident by the 14/07/2014 Investigation Officer to the Claims Tribunal (Clasuse2) Date of intimation of the accident by the 21/08/2014 Investigation Officer to the Insurance Company (Clause2) Date of filing of the Report under section Not filed 173 Cr.PC before the Metropolitan Magistrate (Clause 10) Date of filing of Detailed Accident 21/08/2014 Information Report(DAR) by the Investigation Officer before Claims Tribunal (Clause) Date of service of DAR on the Insurance 21/08/2014 Company (clause11) Date of service of DAR on the claimant(s) 21/08/2014 (Clause11) Whether DAR was complete in all Yes respects? ( Clause11) If not state deficiencies in the DAR Whether the police has verified the Yes documents filed with DAR? (clause4) Whether there was any delay or deficiency No on the part of the Investigation Officer? If so, whether any action/ direction warranted?
Date of appointment of the Designated Not mentioned Officer by the Insurance Company MACT No. 56546-16 Kartikey @ Kartik Vs Rohan Kumar & Ors Page No. 2/12 Name , address and contact number of the Not mentioned Designated Officer of the Insurance Company(Clause 19) Whether the Designated officer of the No insurance Company submitted his report within 30 days of the DAR?(Clause 21) Whether the Insurance Company admitted No the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law. (Clause22) Whether there was any delay or deficiency No on the part of the Designated officer of the Insurance Company? If so whether any action/ direction warranted?
Date of response of the claimant(s) to the NA offer of the Insurance Company? (Clause 23) Date of Award 01/02/2018 Whether the award was passed with the No consent of the parties? (Clause 22) Whether the claimants(s) examined at the Yes time of passing of the award to ascertain
his/ their financial condition? (Clause 26) Whether the photographs, specimen Yes signatures, proof of residence and particulars of bank account of the injured/ legal heirs of the deceased taken at the time of passing of the award? (Clause26) Mode of disbursement of the award amount Mentioned in the award to the claimant(s) (Clause 28) Next Date of compliance of the 05/03/2018 award(Clause30)
1. This is a claim for compensation arising out of Detailed Accident Report u/s 158 (6) MV Act filed by P.S. Sarai Rohilla Delhi in respect of injuries suffered by the petitioner in the road traffic accident on 10/07/2014 and same is MACT No. 56546-16 Kartikey @ Kartik Vs Rohan Kumar & Ors Page No. 3/12 treated as petitioner u/s 166 MV Act, 1988.
2. The brief facts of the case are that on 10.07.2014, Sh. Rajeev Mittal after taking his two boys from school, was going to his house and at about 2:30 PM, when he reached near house B-1390, at Shastri Nagar, one Tata Champion bearing Reg. No. DL1LN9691 suddenly started the vehicle and negligently dashed against his scooter. Due to the impact / accident, he was fallen down on the road along with his children and his son Kartikey received injuries on his right feet. Police complaint was made and an FIR was lodged under Section 279/338 IPC. By way of present petition, the father of the minor petitioner has claimed Rs. 10,00,000/- as compensation on account of the injuries sustained by Master Kartikey in the accident.
3. On notice, all the respondents appeared in the court and respondents no. 1 and 2 filed the joint written statement and respondent no. 3 Insurance Company also filed its written statement.
4. Respondents no. 1 and 2 stated in their WS that accident has not occurred due to the rash and negligent driving of driver Rohan Kumar but it was the complainant namely Rajeev Mittal, who was driving his scooter rashly and negligently and they are not liable to pay any compensation.
5. The insurance company stated in its WS that the vehicle in question was duly insured with its company but as per the DL verification report received from the Transport Authority, driver Rohan Kumar was driving the insured vehicle which was a light goods commercial vehicle where as he was holding license for the category of motorcycle and LMV (non-transport) and he was not authorized to drive the light goods commercial vehicle and thus, the owner / insured has violated the terms and conditions of the Insurance policy and the Insurance Company is not liable to pay any compensation to the injured.
6. From the pleadings of the parties, following issues were framed on 04.12.2014 :-
MACT No. 56546-16 Kartikey @ Kartik Vs Rohan Kumar & Ors Page No. 4/121.Whether the petitioner Sh. Kartikey suffered injuries in an accident that took place on 10/07/2014 at about 14.10 hours involving Mahindra Champion bearing registration NO. DL-1LN-9691 driven by the Respondent No. 1, owned by the Respondent No.2 and insured with the Respondent No.2?OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom? OPP
3. Relief.
7. In order to establish his claim, the father of the petitioner examined himself as PW-1.
8. The Respondents No. 1 & 2 did not lead any evidence.
9. The insurance company examined its official Sh. Amit Yadav as R3W1.
10. I have thoroughly gone through the testimony of the witness and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the parties.
My findings on various issues are as under :-
11. ISSUE NO. 1The present petition is under Section 166 of M.V. Act and as such, it was the duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
12. The police has filed the Detailed Accident Report (DAR) on record pertaining to the case FIR no. 682/14 PS Sarai Rohilla u/S. 279/338 IPC.
13. The father of the petitioner explained the mode and manner of the accident in his affidavit, Ex. PW1/A. He deposed that on 10.07.2014, he was coming back to his house after taking his children from Maharaja Agrasen Hospital and at about 2:10 PM, when he reached near the house bearing B-MACT No. 56546-16 Kartikey @ Kartik Vs Rohan Kumar & Ors Page No. 5/12
1390, Shastri Nagar, Delhi, the tempo bearing no. DL1LN9691 hit the complainant and his children with forceful impact and due to this force, they all were fallen down and his son Karikey sustained multiple injuries on all over the body and his right leg was seriously injured. He deposed that he called the PCR and police reached at the spot and they went to Parmarth Mission Hospital and he has exhibited the medical bills, medical prescriptions and discharge summary as Ex.PW1/1 (colly). He deposed that FIR against the respondents was lodged and due to this accident, his son Kartikaya was not able to attend his school for about six months and he has spent around one lakh qua the medical treatment of his son and due to this accident, he also suffered mental pain and agony. This witness was cross-examined by all the respondents but nothing fruitful came out for the respondents. The cross- examination carried on by the respondent No. 1 & 2 is not suggestive of anything which may discard the claim of the petitioner to the effect that the driver of the offending vehicle was not rash and negligent at the time of accident.
14. While determining the negligence of the driver of the offending vehicle, 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 on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily MACT No. 56546-16 Kartikey @ Kartik Vs Rohan Kumar & Ors Page No. 6/12 injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act.
15. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
16. Further the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 has held as under:-
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
17. Therefore, after considering oral as well as documentary evidence, it is clear that respondent no. 1 was driving the vehicle in a rash and negligent manner.
MACT No. 56546-16 Kartikey @ Kartik Vs Rohan Kumar & Ors Page No. 7/1218. The issue no. 1, therefore, is decided in favour of the petitioner and against the respondents.
ISSUE NO.2 : COMPENSATION
19. NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
As per copy of medical record, the petitioner suffered grievous injuries. The father of the minor petitioner has filed the medical bills to the tune of Rs.93,345.75p/-. Same is rounded off to Rs. 93,346/-. I hereby award a sum of Rs. 93,346/- towards medical bills keeping in view the nature of injuries and medical bills placed on record.
20. PAIN AND SUFFERINGS :
It is settled law that a particular amount can not be fixed for pain and sufferings in all the cases and it varies from case to case. Judicial notice can be taken to the fact that since the petitioner had got injuries as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have also to take heavy dose of anti-biotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision: 2.2.2007, Delhi High Court by Hon'ble Mr. Justice Pradeep Nandrajog wherein it was held that:-
"On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment."
21. Keeping in view the said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs.50,000/- towards pain and MACT No. 56546-16 Kartikey @ Kartik Vs Rohan Kumar & Ors Page No. 8/12 sufferings and loss of amenities of life. Besides this, I hereby award a sum of Rs.30,000/- towards special diet and conveyance.
22. LOSS OF STUDIES DURING TREATMENT PERIOD The minor petitioner was stated to be a student of Class Xth at the time of accident and it is deposed by the father of the minor petitioner that he could not attend his school for six months due to accident. Therefore, I award a lump sum amount of Rs. 15,000/ towards loss of studies.
The total compensation is assessed as under:-
Treatment expenses: Rs. 93,346/-
Pain and sufferings: Rs. 50,000/-
Conveyance & special diet: Rs. 30,000/-
Loss of studies during
treatment period Rs. 15,000/-
Total: Rs. 1,88,346/-
23. RELIEF:
I award Rs. 1,88,346/- (Rupees One Lac Eighty Eight Thousand Three Hundred Forty Six Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR i.e.,21/08/2014 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several.
APPORTIONMENT OF LIABILITY
24. Ld. Counsel for the respondent No.3 has vehemently argued that recovery rights are to be granted to the insurance company as the respondent No.1 was having a a DL for LMV category and he was not authorized to drive Light Motor Vehicle Goods.
25. In 2017(7) Scale 731 titled as Mukund Dewangan vs. Oriental Insurance Company Ltd., the Hon'ble Supreme Court of India, in para no. 46 thereof has held as under: -
Para no. 46 (iv) "The effect of amendment of Form 4 MACT No. 56546-16 Kartikey @ Kartik Vs Rohan Kumar & Ors Page No. 9/12 by Insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle' continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect".
As per the ratio of the said authority, if a driver was holding a license to drive Light Motor vehicle, he was able to drive Transport Vehicle of such class without any endorsement to that effect. To my mind, it can be safely concluded that the respondent No1 was having a valid DL on the date and time of the accident.
In S.Iyyapan v. United India Insurance Co. Ltd., the Hon'ble Supreme Court has considered the decisions in Ashok Gangadhar, Annappa Irappa Nesaria, Prabhu Lal and other decisions and lead down thus:
(S.Iyyapan case, SCC p. 77 para 18) "18. In the instant case, admittedly the driver was holding a valid driving license to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving license to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because impugned judgment is, therefore, liable to be set aside."
The Hon'ble Supreme Court of India, in Kulwant Singh v. Oriental Insurance Co. Ltd. (2015) 2 SCC 186 referring to the decisions of Hon'ble Supreme Court in S. Iyyapan and Annappa Irappa Nesaria (2008) 3 SCC 464 has laid down that when one driver is holding a license to drive light motor vehicle, he can drive commercial vehicle of that category.
MACT No. 56546-16 Kartikey @ Kartik Vs Rohan Kumar & Ors Page No. 10/12Reference can also be made to National Insurance Company Ltd. Vs Shama & Ors in MAC Appeal No. 490/2008 dated 19 th July, 2017, wherein Hon'ble Mr. Justice R. K. Gauba has taken the similar view after discussing Mukund Dewangan vs. Oriental Insurance Company Ltd. 2017(7) SCALE 731 and New India Assurance Co. Ltd. Vs Arvinder Kaur & Ors. MAC Appeal No. 32/2006 decided on 17.02.2016.
26. In view of the aforesaid discussion, I am of the considered opinion that the insurance company is not entitled to any recovery rights.
27. The Respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, Respondent No.3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
28. The Hon'ble High Court of Delhi in its judgment in Union of India and Another Vs. Nanisari and Others MACA 682/2005 decided on 13.1.2010 as well as in MAC. APP No. 422/2009 titled as Sobat Singh Vs. Ramesh Chandra Gupta & Anr. & FAO 842/2003 & CM32859/2017, 41125-41127/2017 titled as Raesh Tyagi & Ors. Vs. Jaibir Singh & Ors. Dated 15/12/2017 has has laid certain guidelines which are as under regarding depositing of award amount :-
"The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. H S Rawat, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09717044322) or to UCO Bank through Mr. M M Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the MACT No. 56546-16 Kartikey @ Kartik Vs Rohan Kumar & Ors Page No. 11/12 convenience of the victim/legal representative of the victim of the road accident".
29. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its Nodal Officer, Relationship Manager, Tis Hazari Branch, Tis Hazari or to UCO Bank through Mr. M M Tandon, Member- Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
30. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Branch for opening the account.
31. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioner. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 05/03/2018.
Announced in the open court on this 1st February,2018 (RAKESH KUMAR-III) PO: MACT-02 (CENTRAL):
DELHI MACT No. 56546-16 Kartikey @ Kartik Vs Rohan Kumar & Ors Page No. 12/12 MACT No. 57546-16 01/02/2018 Present: Ld. Counsel for the parties.
Further arguments heard.
Put up for judgment at 04.00 P.M. (RAKESH KUMAR-III ) PO: MACT-
02(CENTRAL) : DELHI
01/02/2018
Again at 04.00 P.M.
Present: None.
Judgment announced vide separate sheets of even date. 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).
This file be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 05/03/2018.
(RAKESH KUMAR-
III ) PO: MACT-
02(CENTRAL) : DELHI
01/02/2018
MACT No. 56546-16 Kartikey @ Kartik Vs Rohan Kumar & Ors Page No. 13/12