Delhi District Court
Mangal vs Ranjit Dass on 29 August, 2016
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTH-EAST DISTRICT : KKD COURTS : DELHI
MACT No. 439/12 and MACT New No. 14575/15
FIR No. 1228/12, P.S. Indirapuram, Distt. Ghaziabad, U.P
u/sec 279/338 IPC
Mangal
S/o Late Sh. Ram Gopal
R/o B-1/368, Nand Nagri,
Delhi ....... Petitioner
Versus
1. Ranjit Dass
S/o Sh. Banarsi Dass
R/o Village Banne, P.S. Gogari,
Distt. Khagaria, Bihar
C/o Smt. Anju Sharma
W/o Sh. Ashok Kumar Sharma
R/o 7A, South Ganesh Nagar,
Delhi - 92
2. Smt. Anju Sharma
W/o Sh. Ashok Kumar Sharma
R/o 7A, South Ganesh Nagar,
Delhi - 92
3. The New India Assurance Co. Ltd.
Divisional Office (312700)
NH-5, R/2, Near Badshah Khan Chowk,
NIT, Faridabad, Haryana ......... Respondents
Through counsel:-
Sh. B.N. Thakur, Ld. Counsel for the petitioner, En. No. D/451/04, Ch MACT no. 439/12 Ms. Kiran Bansal Page no. 1/16 No. 167, W W Tis Hazari.
Respondent no. 1 and 2 are proceeded ex-parte. Ms. Shalini Upadhyay, ld. counsel for insurance co., Ch No. 419, Western Wingh, Tis Hazari Courts, Delhi-54.
i) Date of Institution of Claim Petition : 18/12/2012
ii) Date of Decision : 29/08/2016
APPLICATION U/S 166 & 140 M.V. ACT 1988
FOR GRANT OF COMPENSATION
AWAR D
1. Petitioner being the injured filed the present claim petition u/s 166 & 140 MV Act seeking the compensation. It is the case of the petitioner that on 27/09/2012 at about 3:00 PM petitioner was standing alongwith his Auto bearing no. UP 14 CT 0401 and was waiting for passenger in front of village Sahibabad (U.P.) Road, in the meanwhile a truck bearing no. HR 55A 8849 which was being driver by its driver in rash and negligent manner came and hit the petitioner with great force as a result of which petitioner sustained grievous injuries. FIR No. 1228/12 u/sec 279/338 IPC was also registered at PS Indirapuram, Ghaziabad in this respect.
2. Summons of the claim petition were issued to the respondents.
None appeared on behalf of respondent no. 1 and 2 despite service hence, respondent no. 1 and 2 were proceeded ex-parte vide order dated 16/01/2014.
MACT no. 439/12 Ms. Kiran Bansal Page no. 2/16 WS was filed on behalf of respondent no. 3 stating that vehicle bearing no. HR 55A 8849 was insured with the respondent no. 3 vide policy no. 312700/31/11/01/00006348 which is valid from 05/01/2012 to 04/01/2013 in the name of respondent no. 2 i.e Mrs. Anju Sharma After completion of the pleadings, following issues were framed :
1. Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. HR 55A 8849 by respondent no. 1 on 27/09/2012 at about 3:00 PM in front of village Sahibabad U.P. within the jurisdiction of PS Indirapuram, Distt. Ghaziabad, U.P? OPP
2. Whether petitioner is entitled to compensation ? If so, to what amount and from whom?
3. Relief.
4. I have heard ld. counsel for petitioner and ld. Counsel for insurance and gone through the entire evidence and written submissions on record. My issue wise findings are as below :1. ISSUE NO. 1
Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. HR 55A 8849 by respondent no. 1 on 27/09/2012 at about 3:00 PM in front of village Sahibabad U.P. within the jurisdiction of PS Indirapuram, Distt. Ghaziabad, U.P? OPP Petitioner has examined himself as PW2 and deposed about the facts of his case. He was cross-examined by ld. counsel for insurance co. and during his cross examination nothing has come forward in this testimony to disbelieve the version of PW2. The respondent no.1, Driver has not MACT no. 439/12 Ms. Kiran Bansal Page no. 3/16 entered into the witness box to state as to how the accident occurred and to depose that he was not at fault and was not driving the vehicle in rash and negligent manner. Ld. Counsel for the injured as argued that as the injured did not had DL therefore, contributory negligence is made out on the part of the injured. However, injured has clearly stated that his DL was lost. Moreover, as per the affidavit in chief he was standing alongwith his auto and was waiting for passengers when a truck bearing no. HR 55A 8849 had hit him with great force. Injured was thus, not driving the auto at the time of accident therefore, this fact does not make any difference whether injured had DL to drive the TSR or not.
To determine the negligence, 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 in the Hon'ble High Court 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 and 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 MACT no. 439/12 Ms. Kiran Bansal Page no. 4/16 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 it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also a 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.
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 by Hon'ble Mr. Justice G. P. Mittal, 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 MACT no. 439/12 Ms. Kiran Bansal Page no. 5/16 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."
Therefore, in view of the statement of PW 2 Sh. Mangal and criminal case record, it is proved that the petitioner has sustained injuries in the accident which occurred on 27/09/2012 due to rash and negligent driving of offending vehicle bearing no. HR 55A 8849 driven by its driver. The issue is decided accordingly.
2. ISSUE NO. 2Whether petitioner is entitled to compensation? If so, to what amount and from whom?
It is stated by the petitioner in his affidavit that he suffered crushed and deglowing injuries in his left leg, ankle and foot beside other injuries.
Disability:-
Petitioner was allowed to get examined by the GTB Hospital for the purpose of assessing disability and the disability certificate was issued. As per the contents of the disability certificate Ex. PW1/1, petitioner suffers from the permanent disability of 81% of left lower MACT no. 439/12 Ms. Kiran Bansal Page no. 6/16 limb. Dr. Gurvinder Singh, Sr. Resident, Department of Orthopedics,GTB Hospital has been examined as PW1 proved the disability certificate of the patient Mangal who was examined by a board of doctors on 04/10/2013.
It is difficult to ascertain in exact terms as to how much the disability in left lower limb has affected the whole body of the petitioner. Counsel for petitioner has argued that as important limb of petitioner is rendered almost non-functional, the functional disability be considered 100% where as the counsel for insurance has argued that whole body disability be reduced to half. Injured herein was a driver and certainly after 81% of disability he cannot be expected to work as driver. Injured does not seem to be educated enough to be employed for even any clerical work.
PW2 Dr. Gurvinder Singh has clearly deposed that injured will not be able to run and drive three wheeler without any risk to his own life, to the life of passengers and without any risk of the life of public on road.
Considering the age and occupation of the petitioner and the fact, regarding 81% disability of left lower limb, I am of the opinion that 81% of functional disability can be considered in relation to whole body for the purpose of calculation of future loss of income. Income of Injured:-
As far as income of the petitioner is concerned, it is stated by petitioner in the claim petition that he was TSR driver by profession and MACT no. 439/12 Ms. Kiran Bansal Page no. 7/16 earned a sum of Rs. 9,000/-p.m. However, no proof regarding the income of the petitioner has been filed. Injured was driving TSR in U.P. Looking to the fact of the present case, the possible income, in my opinion, of the claimant would be around Rs. 165.5 per day on the date of accident (minimum wages as applicable in UP).
Age of Injured:-
As per the disability certificate dated 04/10/2013, petitioner at the time of examination was aged about 33 years. As per MLC he was 33 years of age on the date of accident. As per the voter ID card Ex. PW1/3 injured was 21 years of age as on 01/01/2002. As per the Adhar card Ex. PW1/4 the year of birth of injured is 1980. As per the ration card Ex. P2, the year of birth of injured is 1980. Therefore, age of the injured is taken to be approx 32 years on the date of accident.
Applying the guidelines of the Hon'ble Supreme Court in the judgment reported as "Smt. Sarla Verma vs DTC 2009 AIR (SC) 3104", the multiplier applicable in the present case is 16, for the purpose of calculating future loss of income.
The law has been well settled that the compensation has to be awarded in disability injury cases under following heads:- (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, injured is further entitled to non-pecuniary damages/general MACT no. 439/12 Ms. Kiran Bansal Page no. 8/16 damages which include (1) damages for pain, suffering and trauma as a consequence of injuries (2) loss of prospects of marriage & (3) loss of expectation of life.
PECUNIARY EXPENSES / COMPENSATION Diet, Conveyance and Attendant Charges:-
Keeping in view the nature of injuries suffered by the Claimant i.e disability of left lower limb and the fact that he was under constant treatment, he would have definitely needed an Attendant to look after him and the claimant is therefore, entitled to attendant charges. Petitioner has not filed any bills to show that he has received help of special attendant however, some family member must have been attending him. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of of Hon'ble Delhi High Court held that a victim cannot be deprived of compensation towards gratuitous services rendered by some of the family members, for the benefit of the tortfeasor. In the circumstances, where the injured had suffered 81% disability of left lower limb, it is deemed fit that a lump sum of Rs. 30,000/- be awarded as compensation towards Attendant charges. Petitioner has not shown anything for spending money on special diet and conveyance but he must have gone for follow up check ups and must have been given special diet for speedy recovery. Thus, Rs. 15,000/- is awarded for special diet and Rs. 15,000/- towards conveyance charges.
MACT no. 439/12 Ms. Kiran Bansal
Page no. 9/16
Treatment expenses:-
Petitioner has stated that he has spent an amount of Rs. ______/- on his medical treatment.
Future loss of income:-
Accordingly, the loss of future income due to disability is calculated as below:
Rs. 165.5 X 25 (monthly) X 12 (annual) X 16 (multiplier) = Rs. 7,94,400/-
Rs. 7,94,400/- + 3,97,200/- (50% future prospects) = Rs. 11,91,600/- X 81% (disability) = Rs. 9,65,196/- NON PECUNIARY EXPENSES:-
In Zahid Khan Vs. Arun Mandal and others, 2016 ACJ 1142 in which injured was labourer and suffered 85% permanent disablement due to amputation of right leg, Rs. 100,000/- was awarded as pain and suffering, Rs. 1,50,000/- for loss of amenities, Rs. 1,75,000/- for amputation of leg and disfigurement, Rs. 200,000/- for artificial limb and Rs. 200,000/- for future medical and other expenses. Accordingly, compensation is calculated as below:
NON-PECUNIARY COMPENSATION Compensation towards pain and suffering Rs. 100,000/- Compensation towards loss of amenities Rs.75,000/- of life Compensation towards disfiguration Rs.75,000/-
MACT no. 439/12 Ms. Kiran Bansal
Page no. 10/16
Total non-pecuniary compensation Rs. 2,50,000/-
PECUNIARY COMPENSATION
Loss of Income for 6 months / post Rs. 24,825/-
accident (Rs.165.5 X 25 X 6 ) Loss of future income due to Rs. 9,65,196/- permanent disability Compensation towards salary of Rs. 30,000/- attendant Compensation towards special diet Rs. 15,000/- Compensation towards conveyance Rs. 15,000/- Medical Bills Rs. 1,52,965/- Total Rs. 12,02,986/-
Thus, the total compensation amount is Rs. 14,52,986/-
3. Liability Respondent no.3 being insurance company in its written statement has admitted that there is valid insurance policy issued for the period from 05/01/2012 to 04/01/2013 in the name of respondent no. 2 i.e Mrs. Anju Sharma vide policy no. 312700/31/11/01/00006348. However, respondent no. 3 has examined R3W1 Dr. Jawahar Lal Sinha, R3W2 Sh.
Rajender Prasad Singh and R3W3 Sh. Sunil Kumar Verma.
As per the testimony of R3W1 Dr. Jawahar Lal Sinha no DL was MACT no. 439/12 Ms. Kiran Bansal Page no. 11/16 issued in the name of Ranjit Dass as per their record in the year 1999. Even R3W2 Sh. Rajender Prasad Singh has stated that DL which is on judicial file was not issued from their authority and the DL is forged and fabricated. These witnesses are not cross examined on behalf of respondent no. 1 and 2 and therefore, their testimony has remained unrebutted. No evidence in rebuttal has been led on behalf of respondent no. 1 and 2 to prove that DL of respondent no. 1 was not forged. Neither owner i.e. respondent no. 2 has entered into the witness box to depose that she has examined DL of respondent no. 1 and found same to be genuine and after taking driving test of the respondent no. 1, she has employed respondent no. 1 as her driver. As no rebuttal evidence has been led on behalf of respondent no. 1 and 2, it is proved that DL of respondent no. 1 was forged and respondent no. 1 was not authorized to drive the vehicle bearing no. HR 55A 8849.
However, it is settled law that if the offending vehicle is insured then the insurance company shall first satisfy the award and may thereafter, recover the same from the owner and the driver, as the case may be.
In view of the testimony of R3W1 and R3W2, Insurance Co is entitled to recovery right and it is directed that Insurance Co. shall first satisfy the award and may thereafter, recover the same from respondent no. 2 being the owner of the vehicle and respondent no. 1 being the driver of the offending vehicle.
MACT no. 439/12 Ms. Kiran Bansal
Page no. 12/16
4. RELIEF
Injured was examined as per clause 26 of the Modified Claims Tribunal Agreed Procedure wherein he stated that he is an illiterate and presently unemployed. He has a wife and five children in his family. He has stated that the amount he would get from the tribunal will be utilised by him for repaying the loan which he had taken from his brother and also intends to open a small grocery shop.
Injured is entitled to an amount of Rs. 14,52,986/-. Accordingly, Respondent no. 3 New India Assurance Company Ltd. is directed to pay a sum of Rs. 14,52,986/- (including interim compensation, if any), by way of depositing cheque in the account of Mangal, petitioner having account in State Bank of India, Nand Nagari,Delhi bearing account no. 34535121265 along with interest @ 9% per annum from date of filing of the petition (18/12/2012) within 30 days. In default, respondents no.3 shall be liable to pay penal interest on the award amount @ 12% p.a. for the default period. In Reliance General Insurance Co. Ltd. Vs. Vimla Devi, MAC APP. 547/2016 vide its order dated 25/07/2016 Hon'ble High Court of Delhi has observed that "This court is of the view that if the deceased would have been alive, his family members would have received a portion of his income every month and not a lump sum amount at any point of time. The purpose of awarding compensation is to put the family members of the deceased in the same financial position. As such, it would be MACT no. 439/12 Ms. Kiran Bansal Page no. 13/16 appropriate to ensure that the family members get reasonable amount of compensation every month like they would have received if the deceased had been alive".
As per clause 28 of the Modified Claim Tribunal Agreed Procedure ,depending upon the financial status and financial need of the claimant, the tribunal has to release the amount as considered necessary and remaining amount be kept in FDR in phased manner. Injured, if would have kept on earning or working, he would have received monthly salary and not lumpsum amount at any point of time.
Bank Manager, State Bank of India, Nand Nagari is thus, directed to keep a sum of Rs. 12,00,000/- in fixed deposit in the following manner and the remaining amount be released in his account. Sr. No. Duration of FDR Petitioner FDR amount 1 1 year 100,000/-
2 2 years 100,000/-
3 3 years 100,000/-
4 4 years 100,000/-
5 5 years 100,000/-
6 6 years 100,000/-
7 7 years 100,000/-
8 8 years 100,000/-
9 9 years 100,000/-
10 10 years 100,000/-
11 11 years 100,000/-
MACT no. 439/12 Ms. Kiran Bansal
Page no. 14/16
12 12 years 100,000/-
Total 12,00,000/-
The Bank shall further comply with following directions :-
(a) The interest on the fixed deposits be paid monthly to the injured.
(b) The monthly interest be credited automatically in the saving account of the claimant.
(c) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs be given to the claimant along with the photocopy of the FDR. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant.
(d) No cheque book be issued to the claimant without permission of the court. However, a photo identity card be issued to the claimant and the withdrawal be permitted upon production of the identity card.
(e) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the court.
(f) The Bank shall not permit any joint name to be added in the savings bank account or fixed deposit accounts of the victim.
(g) Half yearly statement of account be filed by the Bank in the Tribunal.
Copy of the award be sent to the Nodal Officer of the State Bank of MACT no. 439/12 Ms. Kiran Bansal Page no. 15/16 India, Nand Nagari alongwith the court stamped copy of the photographs, specimen signatures, proof of residence and bank account details of the petitioner. (as per clause 27 of the Modified Claim Tribunal Agreed Procedure).
Attested copies of the award be furnished to the concerned parties from court for compliance and be sent to the court of concerned Ld. MM & DLSA.
Put up for compliance on 29/09/2016.
Pronounced in Open Court on (KIRAN BANSAL)
29/08/2016 P.O. MACT(North-East)
KKD Delhi
MACT no. 439/12 Ms. Kiran Bansal
Page no. 16/16