Delhi District Court
Ms. Nisha Gupta vs Mr. Nikhil Kumar @ Nihal on 20 January, 2018
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
DAR No.: 289/17
Unique Case I.D. No.: 2163/2017
Sh. Omveer
S/o Sh. Matrulal
R/o Prajapati Mohalla,
Raju Nambardar Ka Makan,
Vill. Chilla, Delhi-110091
DAR No. 290/17
Unique Case I.D. No.: 2164/2017
Ms. Nisha Gupta
D/o Sh. Shripal Gupta
R/o H. No. 119, Himalaya Enclave,
Khoda Colony, Ghaziabad, U.P.
..... Petitioners
VERSUS
1. Mr. Nikhil Kumar @ Nihal
S/o. Sh. Jitender Kumar
R/o H. No. RC-135, Adarsh Nagar,
Khoda Colony, Ghaziabad, U.P.
..... Driver
2. Mr. Rahul Upadhyay
S/o Late Gajender Kumar
R/o H. No. RC-371, Adarsh Nagar,
Khoda Colony, Ghaziabad, U.P.
..... Owner
3. The Oriental Insurance Co. Ltd.
TP Hub, F-14/20, United India Life Building,
Connaught Circus, New Delhi-110001
..... Insurer
..... Respondents
Date of institution : 17.03.2017
Reserved for orders : 18.01.2017
Date of Award : 20.01.2018
JUDGMENT
DAR No.: 289/2017 Omveer vs Nikhil Kumar @ Nihal & Ors. 1 of 17 Introduction:
1. On 12.02.2017, Ms. Nisha Gupta was travelling in a three wheeler scooter (TSR) bearing registration No. UP 14 FT 1909 (offending vehicle) driven by the respondent No. 1. At about 3.15 p.m., the said TSR had hit Mr. Omveer at NH-24, near East Vinod Nagar, Delhi when he was crossing the road with his bicycle. Mr. Omveer and Ms. Nisha Gupta (collectively, the petitioners) suffered injuries. The petitioners instituted two accident claim cases being D-289/17 and D-290/17 in the context of Detailed Accident Report (DAR) filed by local police on the basis of evidence collected in FIR No. 42/17 under section 279/337 of the Indian Penal Code, 1860 (IPC) registered at PS Kalyanpuri impleading the driver and registered owner of the offending vehicle as the respondent No. 1 and 2. The respondent No. 3 insured the offending vehicle against third party risk for the period in question.
2. On being noticed, the respondent No. 1 and 2 filed joint written statement. They stated that the offending vehicle had not caused any accident. They claimed false implication.
They stated that the offending vehicle was insured for the period in question with the respondent No. 3 / insurer.
3. The respondent No. 3 / insurer, in its written statement, contended that the driving license of the respondent No. 1 was valid for driving LMV (NT). It contended that the respondent No. 1 was not holding driving license to drive the offending vehicle. It pleaded breach of term and condition of insurance policy. It denied its liability to pay compensation to the petitioners.
DAR No.: 289/2017 Omveer vs Nikhil Kumar @ Nihal & Ors. 2 of 17 Issues:
4. On the pleadings, following issues, in D-289/17, were framed:
(i) Whether the petitioner Omveer sustained injuries in a road accident on 12.02.2017 at about 3.15 p.m. at NH-24, East Vinod Nagar, Delhi within jurisdiction of PS Kalyanpuri due to rash and negligent driving of TSR No. UP 14 FT 1909 by the respondent No. 1?
(OPP)
(ii) Whether R-1 / driver was holding a valid and effective license to drive the offending vehicle at the time of the accident?
(OPR1 & R2)
(iii) Whether the petitioner is entitled to compensation, if so, to what amount and from whom?
(OPP)
(iv) Whether the petitioner is entitled to interest on the award amount, if so, at what rate of interest and for which period?
(OPP)
(v) Relief.
5. On the pleadings, following issues, in D-290/17, were framed:
(i) Whether the petitioner Nisha Gupta sustained injuries in a road accident on 12.02.2017 at about 3.15 p.m. at NH-24, East Vinod Nagar, Delhi within jurisdiction of PS Kalyanpuri due to rash and negligent driving of TSR No. UP 14 FT 1909 by the respondent No. 1?
(OPP)
(ii) Whether R-1 / driver was holding a valid and effective license to drive the offending vehicle at the time of the accident?
(OPR1 & R2)
(iii) Whether the petitioner is entitled to compensation, if so, to what amount and from whom?
(OPP)
(iv) Whether the petitioner is entitled to interest on the award amount, if so, at what rate of interest and for which period?
(OPP)
(v) Relief.
DAR No.: 289/2017 Omveer vs Nikhil Kumar @ Nihal & Ors. 3 of 17
6. Vide order dated 24.04.2017, both accident claim cases were consolidated and D-289/17 was treated as leading case.
Evidence:
7. PW-1 Omveer filed his evidence by way of affidavit Ex.PW1/A. He deposed about the manner of the accident. He relied on copy of aadhaar card Ex.PW1/1, original treatment record Ex.PW1/2 (colly, 3 pages), original medical bills Ex.PW1/3 (colly, 3 pages) and criminal case record / Detailed Accident Report (DAR) Ex.PW1/4.
8. PW-2 Nisha Gupta filed her evidence by way of affidavit Ex.PW2/A. She deposed about the manner of the accident. She relied on aadhaar card Ex.PW2/1, original treatment record Ex.PW2/2 (colly, 3 pages), original medical bills Ex.PW2/3 (colly, 4 pages) and I-card of B.com, 1 st year Ex.PW2/4.
9. R3W1 Anil Kumar Singh, Senior Clerk, RTO Office, Ghaziabad, U.P. proved authority letter Ex.R3W1/A and extracts of driving license bearing No. UP14/2016/0015859 issued in the name of Sh. Nikhil Kumar valid for the period from 10.05.2016 to 09.05.2036 to ply motorcycle with gear only and LMV (NT) Ex.R3W1/B.
10. R3W2 Neelam Rani, Assistant, M/s Oriental Insurance Co. Ltd. proved notices under Order 12 Rule 8 CPC Ex.R3W2/A and Ex.R3W2/B, postal receipts Ex.R3W2/C and Ex.R3W2/D, and insurance policy of the offending vehicle Ex.R3W2/E (colly, 3 pages).
DAR No.: 289/2017 Omveer vs Nikhil Kumar @ Nihal & Ors. 4 of 17 Final arguments:
11. I have heard arguments of Sh. Bijay Kumar, Advocate for the petitioners, Sh. R.K. Gautam, Advocate for the respondent No. 1 and 2, and Sh. Upender Kumar, Advocate for the respondent No. 3 / insurer and examined the evidence, oral and documentary.
Issue No. 1:
12. In order to discharge the burden to prove rash and negligent driving of the offending vehicle by the respondent No. 1 / driver, the petitioners appeared as PW-1 and PW-2.
13. Mr. Omveer appeared as PW-1. He filed his evidence by way of affidavit Ex.PW1/A. He deposed about the sequence of events leading to the accident. He categorically stated that on 12.02.2017 at about 3.15 p.m., he was crossing the road with his bicycle with due precaution when the offending vehicle coming from Akshardham side in high-speed had hit him at NH- 24, near East Vinod Nagar, Delhi. He stated that the respondent No. 1 had fled from the place of the accident. In his cross- examination conducted by the respondent No. 3 / insurer, he stated that he was carrying kachories, subji and related material on his cycle at the time of the accident. He denied suggestion that he was driving his bicycle in a rash and negligent manner after loading the said material and he was unable to control his bicycle and he had fallen on the road and sustained injuries. He denied suggestion that there was no negligence on the part of the respondent No. 1. The respondent No. 1 and 2 did not cross-examine him.
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14. Ms. Nisha Gupta appeared as PW-2. She deposed, on the strength of affidavit Ex.PW2/A. She deposed about the manner of the accident. She stated that on 12.02.2017 at about 3.15 p.m., she was travelling as a passenger in an auto- rickshaw bearing registration No. UP 14 FT 1909 from Vinod Nagar to Khoda Colony. She stated that the respondent No. 1 was driving the offending vehicle in high-speed. She stated that the offending vehicle had hit a cyclist who was crossing the road. She stated that she suffered injuries. She stated that the respondent No. 1 ran away from the place of the accident. She was not cross-examined by the respondent No. 1 and 2. In her cross-examination conducted by the respondent No. 3 / insurer, she was not questioned on the aspect of rash and negligent driving of the offending vehicle.
15. On thoughtful examination of the evidence on record, it is evident that PW-1 Omveer was crossing the road with his bicycle. It is evident that the respondent No. 1 was driving the offending vehicle in high-speed and while driving so, he had hit him. PW-2 Nisha Gupta was travelling as a passenger in the offending vehicle. She materially corroborated PW-1 Omveer. The respondent No. 1 neither stated nor deposed his account of the accident. He has not deposed as to why he could not avoid the collision. He was also not examined by the respondent No. 3 / insurer to prove the contrary. There is nothing in the cross- examination of PW-1 Omveer and PW-2 Nisha Gupta to disbelieve their version. Evidence of PW-1 Omveer and PW-2 Nisha Gupta remained unchallenged. The respondent No. 1 fled after the accident and it points to his culpability.
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16. It is therefore, proved that the respondent No. 1 was driving the offending vehicle in a rash and negligent manner.
17. PW-1 Omveer proved treatment record Ex.PW1/2. On 12.02.2017 at about 3.40 p.m., he was admitted in the Casualty, Lal Bahadur Shastri Hospital as a case of road traffic accident (RTA). He had injuries on his left knee, head and left hand. He was eventually diagnosed to have suffered fracture base of 3rd metatarsal, proximal phalynx of little toe, lower end of fibula and fracture of talus.
18. PW-2 Nisha Gupta had suffered loosening of upper incisor and abrasion on face and right knee and elbow. The nature of injury suffered by her opined as 'simple'.
19. It is therefore, proved that Mr. Omveer and Ms. Nisha Gupta suffered injuries on account of rash and negligent driving of the offending vehicle by the respondent No. 1.
20. Accordingly, issue No. 1 is decided in favour of the petitioners and against the respondents. Issue No. 2:
21. The respondent No. 3 / insurer pleaded breach of terms and conditions of insurance policy on the ground that the respondent No. 1 was not holding a valid and effective driving license to drive the offending vehicle. The case of the respondent No. 3 / insurer is that the respondent No. 1 was holding a driving license to drive LMV (NT) and not LMV (T). It examined R3W1 Anil Kumar Singh, Sr. Clerk, RTO Office, Ghaziabad, U.P. He proved extracts of the driving license of the respondent No. 1 Ex.R3W1/A. He proved that the respondent No. 1 was holding driving license Ex.R3W1/B to ply LMV (NT).
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22. The respondent No. 3 / insurer examined R3W2 Neelam Rani, Assistant. She proved notices under Order 12 Rule 8 CPC Ex.R3W2/A and Ex.R3W2/B sent to the respondent No. 1 and 2 requiring them to produce 'original insurance policy, driving license, registration certificate, fitness certificate and permit' and postal receipts Ex.R3W2/C and Ex.R3W2/D. She proved a copy of insurance policy Ex.R3W2/E
23. The respondent No. 1 was holding a driving license Ex.R3W1/B authorizing him to drive motorcycle with gear and LMV (NT) having validity from 10.05.2016 to 09.05.2036. The offending vehicle is a three wheeler scooter. It falls in the category of light motor vehicle. The respondent No. 1 was not holding a driving license authorizing him to drive a transport vehicle. However, absence of a driving license to drive vehicle of the category of LMV (T) in the presence of a valid and effective driving license for the category of LMV (NT) is not a fundamental breach of insurance policy.
24. In Reliance General Insurance Company Ltd. versus Sekh Nachhar & Ors., MAC APP. 602/2012 decided on 20.11.2017, the insurance company sought recovery rights on the ground that the driver of the offending vehicle held a license valid for light motor vehicle (non-transport) whereas the offending vehicle was a commercial vehicle (tempo). Hon'ble High Court rejected the contentions in view of the judgments in IFFCO TOKIO General Insurance Co. Ltd. versus Darshna & Ors., MAC APP. 154/2013, decided on 16.08.2017 and IFFCO TOKIO General Insurance Co. Ltd. versus Parvati & Ors., MAC APP. 157/2013, decided on 16.08.2017.
DAR No.: 289/2017 Omveer vs Nikhil Kumar @ Nihal & Ors. 8 of 17
25. In ICICI Lombard General Insurance Company Ltd. versus Mamraj & Ors., MAC APP. 388/2017 decided on 08.11.2017, the claimant suffered injuries due to rash and negligent driving of a light goods vehicle (LGV). The insurer questioned the liability on the ground that there was breach of terms and conditions of the insurance policy since the driver possessed a driving license that permitted him to drive, besides a motorcycle, only a light motor vehicle (non-transport). Hon'ble High Court of Delhi held that the plea about breach of terms and conditions of the insurance policy cannot be accepted. It held that similar plea was raised in MAC APP. 869/2014 titled Ahmad Hussain versus Santri Devi & Ors., decided on 25.08.2017 with the following observations:
"It is noted that the evidence on record proved that the driver did hold a valid or effective driving license for a light motor vehicle (LMV). The registration certificate of the vehicle shows it is a light goods vehicle (LGV). In similar fact-situation, this Court has rejected the plea of the insurance company of breach of terms and conditions in a series of cases (see:
National Insurance Co. Ltd. versus Shama & Ors., MAC APP. 490/2008 decided on 19.07.2017; New India Assurance Co. Ltd. versus Subhash Rastogi & Ors., MAC APP. 438/2009 decided on 25.07.2017 and Ram Narain Verma versus Rajani & Ors. (Reliance General Insurance Co. Ltd.), MAC APP. 478/2017 decided on 27.07.2017). Following the same view, the recovery rights granted against the appellant are set aside."
26. In Reliance General Insurance Co. Ltd. versus Santosh Kumar & Ors., MAC APP. 668/2016 decided on 06.09.2017, Hon'ble High Court of Delhi rejected the similar plea in view of the decision in Mukund Dewangan versus Oriental Insurance Co. Ltd., 2017 (7) Scale 731.
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27. Accordingly, issue No. 2 is decided in favour of the respondent No. 1 and 2, and against the respondent No. 3 / insurer.
Issue No. 3:
28. The petitioners suffered injuries, as noted above, in the accident caused by the rash and negligent driving of the respondent No. 1 / driver and therefore, they are entitled to seek compensation.
Pain and suffering:
29. Mr. Omveer suffered fracture base of 3 rd metatarsal, proximal phalynx of little toe, lower end of fibula and fracture of talus. He did not require hospitalization. According to the treatment record Ex.PW1/2, there was no evidence of any abnormal osteolytic / sclerotic lesion and associated soft tissue was unremarkable.
30. In view of nature of injury and the body part affected, Mr. Omveer is awarded Rs. 25,000/- towards pain and suffering.
31. Ms. Nisha Gupta suffered loosening of upper incisor besides abrasions on face, knee and elbow. She did not require hospitalization. She was discharged after primary treatment. According to treatment record Ex.PW2/2, she received dental treatment till 21.03.2017. In view of nature of injury, prolonged treatment and the body part affected, Ms. Nisha Gupta is awarded Rs. 30,000/- towards pain and suffering. Medical expenses:
32. Mr. Omveer proved medical bills Ex.PW1/3 in the sum of Rs. 1,049/-. Accordingly, Mr. Omveer is awarded Rs. 2,000/- towards medical expenses.
DAR No.: 289/2017 Omveer vs Nikhil Kumar @ Nihal & Ors. 10 of 17
33. Ms. Nisha Gupta proved medical bills Ex.PW2/3 in the sum of Rs. 35,808/-. Accordingly, Ms. Nisha Gupta is awarded Rs. 36,000/- towards medical expenses. Loss of income:
34. Mr. Omveer claimed, in his affidavit, that he could not work for four months. However, in his computation, he claimed loss of income for three months. According to treatment record, he suffered fracture base of 3 rd metatarsal, proximal phalynx of little toe, lower end of fibula and fracture of talus. He was examined by Dr. Kanika Goel, Consultant Radiologist on 22.02.2017. He had no evidence of any abnormal osteolytic / sclerotic lesion and associated soft tissue was unremarkable. Medical bills Ex.PW1/3 pertained to 22.02.2017. Mr. Omveer did not require hospitalization. He lastly examined on 22.02.2017.
35. In view of nature of injury, Mr. Omveer deserves to be awarded loss of income for two months.
36. Mr. Omveer has not led any evidence to prove his income. He has computed his income at Rs. 9,724/- per month on the basis of minimum wages as payable to unskilled worker at the relevant time.
37. Accordingly, Mr. Omveer is awarded (9,724 x 2) = Rs. 19,448/- (rounded of) Rs. 20,000/- towards loss of income for two months.
38. Ms. Nisha Gupta, in her affidavit, claimed loss of income for four months. However, in her computation, she claimed loss of income for three months. She was discharged on the same day after primary treatment.
DAR No.: 289/2017 Omveer vs Nikhil Kumar @ Nihal & Ors. 11 of 17
39. According to treatment record Ex.PW2/3, she went to PD Dental Care 13 days after the accident and complained pain in upper front teeth. She remained under active treatment till 06.03.2017.
40. In view of nature of injury, Ms. Nisha Gupta deserves to be awarded loss of income for one month.
41. Ms. Nisha Gupta claimed that she was teaching in a private school and imparting tuitions. She claimed that she was earning Rs. 15,000/- per month. However, she has not led any evidence to prove her avocation and income. She has proved a copy of I-card issued by school of open learning Ex.PW2/4. She was pursuing B.com at the time of the accident. Accordingly, her monthly income is notionally assessed at Rs. 11,830/-, it being minimum wages as payable to a matriculate at that time.
42. Accordingly, Ms. Nisha Gupta is awarded Rs. 12,000/- towards loss of income for one month. Special diet and conveyance:
43. Mr. Omveer and Ms. Nisha Gupta have not proved any prescription or bill pertaining to purchase of any special diet. They have also not proved that they engaged any conveyance and incurred expenses thereon. However, in view of the injury, they are awarded Rs. 5,000/- each towards special diet and conveyance.
Attendant charges:
44. Mr. Omveer claimed Rs. 12,000/- towards attendant charges. However, he has not led any evidence that he engaged any attendant for any period or incurred any expenses in that regard. Accordingly, his claimed for attendant charges is declined.
DAR No.: 289/2017 Omveer vs Nikhil Kumar @ Nihal & Ors. 12 of 17 Liability:
45. The respondent No. 1 / driver of the offending vehicle is the principal tort-feasor. The respondent No. 2 / owner is vicariously liable. The respondent No. 3 / insurer has not proved breach of any term and condition of insurance policy. Therefore, the respondent No. 3 / insurer is liable to pay the compensation to the petitioners.
D-289/17:
46. Head-wise computation is as under:
Sl. No. Headwise compensation Amount (in Rs.)
1. Pain and suffering Rs. 25,000/
2. Medical expenses Rs. 2,000/
3. Loss of income Rs. 20,000/
4. Special diet Rs. 5,000/
5. Conveyance Rs. 5,000/ Total Rs. 57,000/ D-290/17:
47. Head-wise computation is as under:
Sl. No. Headwise compensation Amount (in Rs.)
1. Pain and suffering Rs. 30,000/
2. Medical expenses Rs. 36,000/
3. Loss of income Rs. 12,000/
4. Special diet Rs. 5,000/
5. Conveyance Rs. 5,000/ Total Rs. 88,000/ DAR No.: 289/2017 Omveer vs Nikhil Kumar @ Nihal & Ors. 13 of 17 AWARD
48. Accordingly, Mr. Omveer and Ms. Nisha Gupta are awarded a sum of Rs. 57,000/- and Rs. 88,000/- respectively alongwith interest @ 9% per annum from the date of filing of DAR (17.03.2017) till the date of award. The respondent No. 3 / insurer is directed to deposit award amount alongwith interest, as ordered above, with the Tribunal within one month as provided under section 168 (3) of M.V. Act. Otherwise, the petitioners shall be entitled to interest @ 9% per annum from the date of filing of the petition till realization.
49. Following direction dated 15.12.2017 in Sobat Singh versus Ramesh Chandra Gupta & Anr., MAC APP. 422/2009, the petitioner / Mr. Omveer shall open a bank account in a nationalized bank near the place of his residence in his individual name. The petitioner / Ms. Nisha Gupta has her savings bank account in Bank of India, Sector-62, Noida, U.P. Concerned Manager is directed not to issue any cheque book and / or debit card to the petitioners namely Mr. Omveer and Ms. Nisha Gupta and if the same have already been issued, the concerned bank is directed to cancel the same and make an endorsement on the pass-books of the petitioners to the effect that no cheque book and / or debit card shall be issued without the permission of the Tribunal. The petitioners are directed to produce copy of the order before the concerned bank whereupon the bank is directed to make an endorsement on the pass-books. The petitioners are directed to produce the original pass-books with the necessary endorsement as well as aadhaar card and PAN card before the Tribunal.
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50. In accordance with direction in Sobat Singh versus Ramesh Chandra Gupta & Anr. (supra), an amount of Rs. 7,000/- out of Rs. 57,000/-, alongwith accrued interest be released into the savings bank account of the petitioner Mr. Omveer and balance amount of Rs. 50,000/- will be secured in the following manner:
Sl. No. Amount of FDR Period of FDR
1. Rs. 25,000/ 6 months
2. Rs. 25,000/ 1 year
51. An amount of Rs. 13,000/- out of Rs. 88,000/-, alongwith accrued interest be released into the savings bank account of the petitioner Ms. Nisha Gupta and balance amount of Rs. 75,000/- will be secured in the following manner:
Sl. No. Amount of FDR Period of FDR
1. Rs. 25,000/ 6 months
2. Rs. 25,000/ 1 year
3. Rs. 25,000/ 18 months
52. Manager, UCO Bank, KKD Courts, Delhi shall retain original FDRs. He shall provide the statement containing FDR numbers, amount, date of maturity and the maturity amount to the petitioners. He shall not encash any of the FDRs before their maturity date without permission of the Tribunal. On maturity, UCO Bank, KKD Court, Delhi shall transfer Fixed Deposit Receipts to the savings bank account of the petitioners / Mr. Omveer and Ms. Nisha Gupta.
53. Copy of Award be given to the petitioners and the respondent No. 3 / insurer for compliance.
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54. File be consigned to record room.
Announced in the open Court Sh. Sanjay Sharma Dated: 20th January, 2018 Presiding Officer MACT (East) Karkardooma Courts, Delhi DAR No.: 289/2017 Omveer vs Nikhil Kumar @ Nihal & Ors. 16 of 17 DAR No. 289/17 20.01.2018 Present : Sh. Bijay Kumar, Advocate for the petitioner.
Sh. R.K. Gautam, Advocate for R1 and R2.
Sh. Upender Kumar, Advocate for R3 / Insurance Co.
It is 4.45 p.m. Vide separate judgment, award is passed. Following direction dated 15.12.2017 in Sobat Singh versus Ramesh Chandra Gupta & Anr., MAC APP. 422/2009, the petitioner / Omveer shall open a bank account in a nationalized bank near the place of his residence in his individual name. Concerned Manager is directed not to issue any cheque book and / or debit card to the petitioner / Omveer and if the same have already been issued, the concerned bank is directed to cancel the same and make an endorsement on the passbook of the petitioner to the effect that no cheque book and / or debit card shall be issued without the permission of the Tribunal. The petitioner is directed to produce copy of the order before the concerned bank whereupon the bank is directed to make an endorsement on the passbook. The petitioner is directed to produce the original passbook with the necessary endorsement as well as aadhaar card and PAN card before the Tribunal. To come up for compliance on 19.02.2018.
Sanjay Sharma PO MACT (East)/KKD Delhi/20.01.2018 DAR No.: 289/2017 Omveer vs Nikhil Kumar @ Nihal & Ors. 17 of 17