Delhi District Court
Manish Singh vs . Shankar & Ors. on 26 November, 2021
Five Year Old Matter
IN THE COURT OF SH. HARJYOT SINGH BHALLA
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
MANISH SINGH VS. SHANKAR & ORS.
MACP NO. 178/16
Sh. Manish Singh
S/o Sh. Ram Nayan Singh,
R/o House No. A97, A Block,
JJ Colony, Uttam Nagar,
New Delhi ......Petitioner/Injured
Versus
1. Sh. Shankar
S/o Sh. Upender
R/o House No.161,
Tyagi Mohalla, Chhattar Pur,
New Delhi
2. Sh. Dharam Raj
S/o Late Sh. Karem Chand
R/o 224, Mittal Complex,
NIT, Faridabad,
Haryana
3. Iffco Tokio General Insurance Company Ltd.
Regd Office: Iffco Sadan C1,
District Center, Saket,
New Delhi110017
MACP No. 178/16 Page 1 of 19
Date of filing of MACP : 17.05.2016
Date of framing of issues : 30.09.2016
Date of concluding arguments : 26.11.2021
Date of decision : 26.11.2021
AWARD/JUDGMENT (ORAL)
1. Vide this judgment I propose to dispose off the detailed accident report filed under the provisions of Motor Vehicles Act read with the relevant rules and prescribed procedure. The claim for compensation raised in the present Detailed Accident report (DAR) relates to injuries suffered by petitioner Manish Singh of DAR No. 435/16 in a road accident that took place on 02.02.2015, at about 01:30 PM, in front of CRPF Camp, Mahipalpur, Andheria Mor, New Delhi, regarding which one FIR bearing no. 129/15, under Sections 279/338 IPC was registered at PS Vasant Kunj South. The offending vehicle involved in this case is one Tempo bearing registration no. HR38M9724, which at the relevant time of accident was being driven by Respondent no. 1 (R1), owned by Respondent no.2 (R2) and insured with Respondent no. 3 (R3).
2. It is the case of the petitioner that on 02.02.2015 at about 01:30 pm, the petitioner while riding a Motorcycle bearing No. DL9SAN1732 reached in front of CRPF Camp, Mahipalpur, Andheria Mor, New Delhi. A tempo bearing no. HR38M9724 hit his Motorcycle because of which he fell down on the road and received multiple injuries. He was removed to AIIMS where his MLC was prepared and thereafter, he was treated for the injuries including compound fracture of pelvis and leg. Petitioner remained in hospital from 02.02.015 to 15.02.2015.
MACP No. 178/16 Page 2 of 193. R1 has not filed WS to the petition. R2 filed a written statement. It was claimed that no accident has taken place as alleged and the respondents were being harassed by a false case. It was also claimed that the said vehicle stood insured with Insurance Company. It is pertinent to mention here that R1 and R2 were always irregular in appearance and ultimately, as none had appeared for them, vide order dated 20.09.2019, they were proceeded with exparte.
4. R3/Insurance Company had filed its written statement claiming that the driver (R1) was not having any valid and effective driving licence at the time of accident and it is claimed that on verification, the DL was found forged. The existence of valid insurance policy was admitted.
5. On 30.09.2016, the following issues were framed by the Ld. Predecessor of this tribunal for disposal of present DARs :
1. Whether the petitioner sustained injuries in the accident which occurred on 02.02.2015 at about 01.30 pm, Infront of CRPF Camp, Mahipal Pur, Adheria More Road, New Delhi caused by rash and negligent driving of vehicle No. HR 38M 9724 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.
6. I have heard the arguments advanced by counsel for claimant as well as the insurance company. However, none has turned up on behalf MACP No. 178/16 Page 3 of 19 of R1 and R2 for addressing final arguments. The case record has also been perused. My findings on the above issues are as under : ISSUE No. 1
7. 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 by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case.
8. Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 etc.
9. Petitioner examined himself in support of his claim as PW1. He tendered on record his examinationinchief by way of affidavit Ex. PW1/A. He has described the manner in which the accident took place and the resultant injury in the said affidavit. He deposed that the fractures received by him were treated by fixing plate and rod which resulted in long bed rest, treatment, special diet and expenses of conveyance as well as physiotherapy and attendant.
MACP No. 178/16 Page 4 of 1910. It has been observed that in the said affidavit, he has made specific deposition regarding the factum as well as manner of the said accident which has already been discussed hereinabove. He has further deposed in his affidavit regarding the nature of injuries suffered by him and treatment taken thereof. The witness was not cross examined on the aspect of accident. Only limited cross examination was carried out by the counsel for insurance company and was limited to the aspect of income, expenses incurred etc. The occurrence of accident was not disputed and the testimony of the witness in this regard has gone unrebutted.
11. It can be said that during his cross examination, nothing material could be extracted out from him which can make this tribunal to disbelieve or discard his testimony. The petitioner is duly corroborated by the documentary evidence which has been led on record by petitioner in the form of records of above criminal case, which have been filed before this tribunal by the Investigating Officer (IO) as a part of DAR documents. Moreover, it has not been disputed that R1 stands already chargesheeted in the above criminal case for offences punishable under Sections 279/338/471 IPC for causing grievous injuries on the persons of claimant by his rash and negligent driving of the above said vehicle and the same in itself is a strong circumstance to corroborate the testimony of petitioners on above aspects.
12. Apart from the above, R1 himself was the best witness who could have stepped into the witness box to challenge the depositions being made by the above witness regarding the involvement of vehicle in the above accident, but he has not done so. Therefore, an adverse inference on this aspect is also required to be drawn against the respondents in view of MACP No. 178/16 Page 5 of 19 the law laid down in case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, 2009 (3) AD (Delhi) 310.
13. Therefore, in view of the above, it is held that oral evidence led on record by the petitioners on this issue is duly substantiated by the documentary evidence and it stands proved by the principle of preponderance of probabilities that the above accident resulting into grievous injuries on the persons of petitioner took place due to rash and negligent driving of the above offending vehicle bearing no. HR38M9724 which was being driven by R1, owned by R2 and insured with R3 at the relevant time of accident. Hence, this issue is accordingly decided in favour of the petitioner and against the respondents.
ISSUE NO.2
14. As the issue no.1 has been proved in affirmative and in favour of petitioner, the petitioner has become entitled to be compensated for the injuries and disability suffered in above 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 MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as nonpecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident.
MACP No. 178/16 Page 6 of 19The nonpecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses incurred by the claimant towards his treatment, special diet, conveyance, cost of nursing/ attendant, loss of income/earning capacity etc. and the nonpecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or compensation can put the injured/claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work in calculating the different amounts which the claimant may be entitled under the different heads of compensation. Reference in this regard can be made on some of important judgments on the subject like the judgment in the case of R. D. Hattangadi Vs. Pest Control (India) Pvt. Ltd., AIR 1995, SC 755, Arvind Kumar Mishra Vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr., (2011)1 SCC 343.
16. In light of the above legal propositions, the amount of MACP No. 178/16 Page 7 of 19 compensation which can be considered to be 'just' in the opinion of this tribunal shall be as under:
(i) Medical or Treatment Expenses
17. In his affidavit Ex. PW1/A, the petitioner has tendered on record certified copies of his medical bill as Ex. PW1/6 (colly) of the value Rs.38,102.4/. Since the above medical bill and expense of petitioner is found to be in consonance with the treatment taken and injuries suffered by him, he is being awarded the above amount of Rs.38,102/ (rounded off) against his medical expenses.
(ii) Loss of actual earnings
18. Petitioner deposed that he was working as Marketing Sales Manager with GeeTech Scales and Systems Services, drawing salary of Rs.20,000/ and that the petitioner was unable to work for a period of about 10 months due to the multiple grievous injuries received by him.
19. However, as far as the issue of employment is concerned, the petitioner has only produced one alleged certificate Ex.PW1/7 dated 15.05.2016 issued by GeeTech Scales and Systems Services purportedly to have been signed by one R.K. Singh. However, the signatory of the said document was never produced in court for proving the said certificate. There is no other documentary evidence to show that the petitioner was working with said GeeTech Scales and Systems Services for the period of 78 years as claimed. In his cross examination, the petitioner admitted that he was getting the salary in cash and he had not produced any documentary proof of the same. He also admitted that he had no appointment letter is in MACP No. 178/16 Page 8 of 19 his possession.
20. In these circumstances, certificate Ex.PW1/7 cannot be relied upon and the same cannot be said to have been duly proved by the claimant. Even otherwise, the same has over writing and the manner in which it has been printed and the positioning of the stamp and signature at the bottom edge, does not inspire confidence. Therefore, the said document is even otherwise, unreliable. Therefore, this is a case which has to be decided on the basis of notional income, which may require some guess work as recently laid down by the Hon'ble Supreme Court in Chandra @ Chanda @ Chandraram & Anr. Vs. Mukesh Kumar Yadav & Ors, Civil Appeal No. 6152 of 2021, arising out of SLP (C) No. 6466 of 2019. However, it is noteworthy that the petitioner has failed to prove any special skill or education that he may be possessed of and therefore, since he has not proved that he was skilled in any manner, his income is taken as near the minimum wage of unskilled worker which is Rs.8,632/, at the relevant time of accident.
21. As stated above, the petitioner had suffered compound fracture of pelvis and leg and multiple grievous injuries. As per the discharge summary Ex. PW1/4 (colly) he had suffered pelvic ring fracture left superior and inferior pubic rami fracture with pubic symphysis disruption and right SI joint disruption and other injuries. He was advised long term physiotherapy as also, asked for review in OPD as per discharge summary. As per the said document claimant had spent 14 days in hospital, i.e. 02.02.2015 to 15.02.2015, followed by subsequent treatment.
22. In view of the discharge summary, the nature of injury, it can MACP No. 178/16 Page 9 of 19 safely be inferred that the claimant would not have been in a position to perform his work for at least ten months.
23. Therefore, under this head, he is being awarded an amount of Rs. 86,320/ (Rs.8,632 X 10).
(iii) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
24. As stated above, the petitioner had suffered grievous injuries in the accident which have already been described. Though, it is not possible to exactly compensate him for the shock, pain and sufferings etc. which he had actually suffered because of the above injuries and disability, but as stated above, 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 petitioner which would have caused him immense pain as well as immobility and duration of the treatment taken by him etc., an amount of Rs.40,000/ each is being awarded to him towards mental and physical shock & pain and sufferings and besides this, an amount of Rs.40,000/ is also awarded to him towards the loss of amenities suffered during the said period of his treatment and immobility. Thus, he is awarded a total amount of Rs.1,20,000/ under this head.
(iv) Conveyance, Special Diet and Attendant Charges
25. In his affidavit Ex. PW1/A, the petitioner has claimed that he had spent Rs.50,000/ towards special diet and on conveyance. However, he has not placed on record any documentary evidence to substantiate his MACP No. 178/16 Page 10 of 19 above claims. 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 hospitalization and also that of the special diet for his early recovery from the injuries suffered because of the above accident. Hence, an amount of Rs.6,000/ is being awarded to the petitioner towards the requirements of conveyance and Rs. 6000/ per month for three months towards the requirement of special diet.
26. The petitioner has also hired one person to look after him, but he has not produced any documentary evidence to substantiate his claim. Hence, an amount of Rs. 6,000/ per month for three months is also being granted to him towards attendant charges or for the gratuitous services rendered by his family members during the period of hospitalization and immobility.
27. Therefore, a total amount of Rs.42,000/ is being awarded to him under this head.
Issue No.3/Relief
28. The petitioner is thus awarded a sum of Rs. 2,86,422/ (Rs. 38,102/ + 86,320/ + 1,20,000/ + 42,000/) (Rupees Two Lakhs Eighty Six Thousand Four Hundred Twenty Two only) along with interest. 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 above amount and calculations of compensation.
RELEASE
29. Out of the awarded amount, 70% amount is directed to be kept MACP No. 178/16 Page 11 of 19 in FDR with UCO Bank, Patiala House Court, New Delhi for a period of one year and the remaining 30% amount is directed to be released in the saving bank account of petitioner opened/to be opened near the place of his residence, as directed vide order dated 28.03.2018, which can be withdrawn and utilized by the petitioner. The amount of FDR on maturity would be released in his above saving bank account.
30. To facilitate deposits in the above scheme and disbursement of the awarded amount, the petitioner shall also open a savings bank account in the UCO Bank, Patiala House Court, New Delhi, if not opened earlier.
31. The above disbursement to the petitioner is, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any.
32. 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 of the claimant (s) shall be individual account (s) and not a joint account (s).
33. The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDRs numbers, FDRs amounts, dates of maturity and maturity amounts shall be furnished by bank to the claimant.
34. The maturity amounts of the FDR(s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above savings bank account of the claimant near the place of his residence.
35. No loan, advance or withdrawal or premature discharge be MACP No. 178/16 Page 12 of 19 allowed on the fixed deposits without permission of the Court.
LIABILITY
36. It is the case of respondent no. 3 that R1 was not holding a valid driving license on the date of accident. In fact, an application was moved by respondent no.3 seeking to reopen evidence which was disposed off vide order dated 28.02.2020 passed by my Ld. Predecessor, which is quoted for ease of reference:
An application on behalf of R3 seeking reopening of their evidence and tendering on record certified copy of insurance policy is on record. It is stated that the same is to be tendered to show violation of terms and conditions thereof on the ground that DL of R1 was not valid as on the date of accident.
It is observed that report of IO in this regard is already a part of DAR documents and even Section 471 IPC in respect of the same stands invoked in the criminal case. Even these facts can be looked into and considered by this tribunal Hence, there is no need to tender copy of insurance policy and application is being dismissed.
37. In view of the order, judicial notice has to be taken of the fact that the DL of the respondent no.1 was forged and respondent no. 1 and 2 never appeared to contest the case or prove otherwise, as indicated in the DAR. In these circumstances, it is held that the R1 was not holding a valid driving licence and there was breach of terms and conditions of insurance and therefore, in view of decision in Giriraj Vs. Viniti Kohli & Anr. MACA No.639/19 decided on 23.09.2019, the insurance Company is held entitled MACP No. 178/16 Page 13 of 19 to a right of recovery of the awarded amount from R2, i.e. owner of the offending vehicle, as per the contract of insurance executed between them. Therefore, R3 is first liable to deposit the awarded amount with UCO Bank, Patiala House Court Branch, along with interest @ 6% per annum from the date of filing of the DAR either by way of crossed cheques/DDs in name of the petitioners or by way of deposit in any eform in bank account being maintained in the above said bank in name of this tribunal within 30 days from today. In case even after passage of 90 days from today, R3 fails to deposit this compensation with interest, in that event R3 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 in the case of New India Assurance Company Limited Vs. Kashmiri Lal 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of R3 with a cost of Rs.5,000/.
38. R3 shall inform the petitioners and their counsels through registered posts that the cheques/DDs of the awarded amount is being deposited so as to facilitate them to collect their cheques/Dds.
39. The copy of this award be given to the parties free of cost. 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 FAO no.842/2003 dated 12.12.2014.
40. 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.
41. The particulars of FormV of the Modified Claims Tribunal MACP No. 178/16 Page 14 of 19 Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:
1. Date of the accident 02.02.2015
2. Date of intimation of the accident by the Investigation Officer to the Claims Not given Tribunal.
3. Date of intimation of the accident by the Investigating Officer to the Not given Insurance company.
4. Date of filing of Report under Section 173 Cr.PC before the Metropolitan Not given Magistrate.
5. Date of filing of Details Accident Report (DAR) by the Investigating 11.05.2016 Officer before Claims Tribunal.
6. Date of service of DAR on the 11.05.2016 Insurance Company.
7. Date of service of DAR on the 11.05.2016 claimant(s).
8. Whether DAR was complete in all Yes respects?
9. If not, state deficiencies in the DAR No
10. Whether the police has verified the Yes documents file with DAR?
11. Whether there was any delay or DAR has been filed after deficiency on the part of the about 2 months of the Investigating Officer? If so, whether accident.
any action/direction warranted?
12. Date of appointment of the Designated Not given Officer by the Insurance Company.
13. Name, address and contact number of Not given MACP No. 178/16 Page 15 of 19 the Designated Officer of the Insurance Company.
14. Whether the Designated Officer of the Insurance Company submitted his No report within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the No Insurance Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated Officer of the Insurance NA Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of the offer of the Insurance Company.
18. Date of the award 26.11.2021
19. Whether the award was passed with No the consent of the parties?
20. Whether the claimant(s) were directed to open savings bank account(s) near Yes their place of residence?
21. 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 Card and the direction to the bank not 28.03.2018 issue any cheque book/debit card to the claimant (s) and make an endorsement to this effect on the passbook(s).
22. Date on which the claimant(s) Yet to be furnished.
produced the passbook of their MACP No. 178/16 Page 16 of 19 savings bank account near the place of their residence alongwith the endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the R/o House No. A97, A Claimant(s) Block, JJ Colony, Uttam Nagar, New Delhi
24. Details of savings bank account (s) of the claimant(s) and the address of the Yet to furnish bank with IFSC Code.
25. Whether the claimant(s) savings bank account(s) is near his place of NA residence?
26. Whether the claimant(s) were examined at the time of passing of the 13.12.2019 award to ascertain his/their financial condition?
42. File be consigned to Records after necessary formalities. Separate file be prepared for compliance report and be put up on 04.03.2022.
Announced in the open court (Harjyot Singh Bhalla) on 26.11.2021 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format MACP No. 178/16 Page 17 of 19 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM XVI
1. Date of accident : 02.02.2015
2. Name of the injured : Manish Singh
3. Age of the injured : Around 28 years
4. Occupation of the injured : Unskilled worker
5. Income of the injured : Rs.8,632/ per month.
6. Nature of injury : Grievous
7. Medical treatment taken by the injured: JPNA Trauma Centre
8. Period of hospitalization : 14 days
9. Whether any permanent disability?: Nil
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 38,102/
(ii) Expenditure on conveyance Rs. 6,000/
(iii) Expenditure on special diet Rs. 18,000/
(iv) Cost of nursing/attendant Rs. 18,000/
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs.86,320/
(vii) Any other loss which may require Nil any special treatment or aid to the injured for the rest of his life
12. Nonpecuniary Loss:
(i) Compensation for mental and Rs.40,000/ physical shock
(ii) Pain and suffering Rs.40,000/
(iii) Loss of amenities of life Rs.40,000/
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil hardships,disappointment,frustrati on, mental stress, dejectment and unhappiness in future life etc. MACP No. 178/16 Page 18 of 19
13. Disability resulting in loss of earning capacity
(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 Nil
earning relation to
disability
(iv) Loss of future income Nil
14. Total Compensation Rs.2,86,422/
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. 95,343.21
award
17. Total amount including interest Rs. 3,81,765.21/ (rounded off
to Rs. 3,82,000/)
18. Award amount released 30% of the amount
19. Award amount kept in the FDRs/ 70% of the amount
Motor Accident Claims Annuity
Deposit (MACAD)
20. Mode of disbursement of the Through bank
award amount to the claimant (s)
21. Next date for compliance of the 04.03.2022
award
(Harjyot Singh Bhalla)
PO/MACT, New Delhi
26.11.2021
MACP No. 178/16 Page 19 of 19