Delhi District Court
Prem Chand vs . Rupesh Kumar Pandit & Ors. on 14 November, 2022
IN THE COURT OF SH. SANDEEP GARG,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS
TRIBUNAL, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS, NEW DELHI
IN THE MATTER OF:
PREM CHAND VS. RUPESH KUMAR PANDIT & ORS.
MACP NO. 118/16 & DAR No. 411/15
Sh. Prem Chand
S/o Sh. Prahlad,
R/o Bhakuhi Gahaji, Gahaji,
Ahraula, Azamgarh,
Uttar Pradesh. ..........Petitioner/injured
Versus
1. Sh. Rupesh Kumar Pandit
S/o Sh. Amod Pandit,
R/o C-26, Ambedkar Place,
Nangloi, Delhi.
2. Sh. Ram Nand Kumar
S/o Sh. Ram Dev Pandit,
R/o S-175/372, Rangpuri,
Pahari Nagal, New Delhi-110037.
3. Ms. Reliance General Insurance Co. Ltd.
C-1, IIIrd Floor, New Krishna Park,
Beside Janakpuri West Metro Station,
New Delhi. ..........Respondents
Date of filing of DAR : 02.12.2015 Date of filing of claim petition : 21.03.2016 Date of framing of issues : 11.01.2016 Date of concluding arguments : 14.11.2022 Date of decision : 14.11.2022 AWARD / JUDGMENT
1. The claim for compensation in the present MACP No. 118/16 & DAR No. 411/15 Page 1 of 18 claim petition relates to injuries sustained by the petitioner in a road accident that took place on 04.06.2015, at about 5 am, on Ridge Road, Near Gate No. 2, Buddha Garden, Chanakyapuri, New Delhi, regarding which an FIR bearing no. 136/2015, under Sections 279/338 IPC was registered at PS Chanakyapuri. The offending vehicle involved in this case is a taxi bearing registration no. DL-1T-6008, which at the relevant time of accident was being driven by respondent no. 1, owned by respondent no.2 and insured with respondent no.
3.
2. Succinctly put, facts of the case as per claim petition are that on the aforesaid date, the petitioner had came to IGI Airport from Saudi Arabia where his brother-in-law namely Tribhuwan (Saddhu) had come to receive him. After arrival at IGI Airport, the petitioner and his brother-in-law had left for residence of his brother-in-law in a hired taxi bearing registration No. DL-1T-6008 which was being driven by respondent no. 1 at a high speed and in a rash, negligent manner. The petitioner and his brother-in-law told respondent no. 1 to drive at a moderate speed, but respondent no. 1 ignored their advice. When they reached near Ridge Road, Near Gate No. 2, Buddha Garden, Chanakyapuri, New Delhi, all of a sudden, the offending taxi hit a tree planted on the side of the road with great force, due to which the petitioner along with his brother-in-law sustained grievous injuries on their persons. The petitioner and his brother-in-law were taken to Dr. RML Hospital, where their MLCs were prepared.
MACP No. 118/16 & DAR No. 411/15 Page 2 of 183. Respondents no. 1 and 2 have not filed any reply / written statement either to the DAR or to the claim petition.
4. Respondent no. 3/Insurance Company has filed reply/written statement wherein it is averred that respondent no. 1 was not holding a valid and effective driving license at the time of accident. The offending vehicle was insured with it in the name of respondent no. 2 for the period 27.05.2015 to 26.05.2016.
5. It is pertinent to mention that vide order dated 11.01.2016, the present DAR and connected DAR bearing No. 410/15 qua Sh. Tribhuwan, arising out of the same accident, were consolidated for the purpose of trial and DAR No. 410/15 was treated as a lead case for recording of evidence. Thereafter, the present claim petition bearing MACP No. 118/16 qua the petitioner and MACP No. 117/16 qua Sh. Tribhuwan and were filed before this tribunal and their respective DARs were directed to be clubbed with the claim petitions. On the same day, the following consolidated issues were framed :-
1. Whether Sh. Tribhuvan (petitioner in Suit No. D-410/15) and Sh. Prem Chand (petitioner in the present Suit i.e. D-411/15) sustained injuries in the accident which occurred on 04.06.2015 at about 05.00 am, Ridge Road, Near Gate No. 2, Budha Garden, Chanakyapuri, New Delhi caused by rash and negligent driving of vehicle No. DL-1T-6008 being driven by respondent no.
1, owned by respondent no. 2 and insured with respondent no.3 ? OPP.
2. Whether the petitioners are entitled for MACP No. 118/16 & DAR No. 411/15 Page 3 of 18 compensation? If so, to what amount and from whom? OPP
3. Relief.
6. The Tribunal has heard arguments advanced by Sh. A.K. Mishra, Ld. Counsel for petitioners, Mohd. Ragib, Ld. Counsel for respondent no. 3 / Insurance company and has also been perused the record with their able assistance. No one appeared on behalf of respondents no. 1 & 2. The findings on the aforesaid issues are recorded hereinafter:
ISSUE No. 1:
Whether Sh. Tribhuvan (petitioner in suit No. D-410/15) and Sh. Prem Chand (petitioner in the present suit No. D-411/15) sustained injuries in the accident which occurred on 04.06.2015 at about 05.00 am, Ridge Road, Near Gate No. 2, Budha Garden, Chanakyapuri, New Delhi caused by rash and negligent driving of vehicle No. DL-1T-6008 being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no.3 ? OPP.
7. The onus to prove this issue was upon the petitioner. In order to prove negligence of respondent no.1, the petitioner himself deposed as PW-2 and has filed his evidence by way of affidavit as Ex. PW-2/A wherein he has mentioned the mode and manner of accident as averred in the petition and DAR, the injuries sustained by him and treatment taken thereafter. He has placed reliance upon the DAR as Ex. PW-2/4. Absolutely, no cross-examination on the aspect of negligence has been conducted on behalf of the respondents.
8. It is explicit from the testimony of PW-2 that MACP No. 118/16 & DAR No. 411/15 Page 4 of 18 occurrence of accident has not been disputed and the testimony of the witness in this regard has remained un- controverted. Nothing material could be elicited from the cross-examination of PW-2 to disbelieve or discard his testimony on any aspect. The testimony of PW-2 has been duly corroborated by the DAR filed by the IO as Ex. PW2/4. Further, it has not been disputed that respondent no. 1 has been charge-sheeted in the aforesaid FIR for offences punishable under Sections 279/338 IPC, 3/181 M.V. Act for rash and negligent driving of the offending vehicle. The Hon'ble Apex Court in Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 has observed that filing of charge sheet against the driver prima facie points towards his complicity in driving the vehicle rashly and negligently. It has been further observed that even when the accused were to be acquitted in the criminal case, the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal.
9. Pertinently, respondent no. 1 himself was the best witness who could have stepped into the witness box to rebut his involvement in the aforesaid accident, which he has failed to do. Therefore, an adverse inference is drawn against the respondent no. 1/driver in terms of judgment of Hon'ble High Court of Delhi passed in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, 2009 (3) AD (Delhi) 310.
10. It is well settled that the procedure followed for MACP No. 118/16 & DAR No. 411/15 Page 5 of 18 proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters, the facts are required to be established on preponderance of probabilities and not beyond reasonable doubt, as are required in a criminal prosecution. Reference in this regard is made to the judgment of Hon'ble Apex Court reported as (2009) 13 SC 530 in Bimla Devi and others Vs. Himachal Road Transport Corporation and others, wherein it has been observed that strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants and the claimants were merely to establish their case on the touchstone of preponderance of probability.
11. In view of foregoing reasons, it is held that oral evidence adduced by the petitioner on this issue is duly corroborated by the documentary evidence i.e. chargesheet, and thus, it stands proved on preponderance of probabilities that the aforesaid accident had taken place due to rash and negligent driving of the offending vehicle bearing no. DL-1T- 6008 which was being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 at the time of accident. Hence, this issue is decided in favour of the petitioner and against the respondents.
ISSUE NO. 2:
Whether the petitioner is entitled for compensation? If so, to what amount and from whom? OPP
12. As the issue no.1 has been proved in favour of the petitioner, he has become entitled to be compensated for MACP No. 118/16 & DAR No. 411/15 Page 6 of 18 the injuries suffered by him in the accident, but the computation of compensation and liability to pay the same are required to be decided.
13. In terms of Section 168 of the Motor Vehicle Act, 1988 the compensation which is to be awarded by this tribunal is required to be 'just'. In injury cases, a claimant is entitled to two different kinds of compensation i.e. pecuniary as well as non-pecuniary damages, which is being assessed hereinafter under the following heads as:-
(i) Medical or Treatment Expenses:
14. The petitioner had deposed as PW-2 and has tendered his original OPD prescriptions dated 06.08.2015,11.08.2015, 19.08.2015, 08.09.2015, 16.09.2015 & 24.09.2015 as Ex. PW 2/2 (Colly), original ultrasound reports dated 28.06.2015 and 13.07.2015 as Ex. PW 2/3 (Colly) which establish that the petitioner was undergoing treatment at Pandey Clinic, Kaptanganj, Azamgarh.
15. The petitioner in his affidavit, Ex. PW 2/A has claimed that he had incurred about Rs. 1,00,000/- on his treatment. However, he has not produced and proved any bill / invoice to substantiate his claim. During his cross- examination, he admitted that he has not filed any documents regarding payment on account of medical expenses. Therefore, he is not entitled to any compensation towards his medical expenses.
(ii) Loss of actual earnings:
16. The petitioner in his affidavit, Ex. PW 2/A has MACP No. 118/16 & DAR No. 411/15 Page 7 of 18 claimed that he was working as a Mason in Saudi Arabia and was earning Rs. 35,000/- per month. During cross examination, he admitted that he has no document to prove that he was earning Rs. 35,000/- per month or that he had sustained permanent disability consequent to his injury. However, it has been established from his MLC dated 04.06.2015, prepared at Dr. RML Hospital that the petitioner had sustained grievous injuries on his person for which, he continued to take treatment till 24.09.2015 vide prescriptions, Ex. PW 2/2 (Colly).
17. Since the employment and income of the petitioner has not been established on record, the minimum wages of unskilled person are taken into account as per rates notified by Govt. of UP, which were Rs. 6,735/- per month at the time of accident. Keeping in view the fact that the petitioner was hospitalized and he took regular treatment for his grievous urological injuries, this tribunal considers it just and reasonable to compensate him for loss of earning equivalent to a period of four months. Therefore, under this head, he is being awarded an amount of Rs. 26,940/- (Rs. 6,735 x 4 months).
(iii) Loss of future earnings due to disability:
18. During his cross-examination, PW-02 / petitioner has categorically admitted that he does not have any document to establish that he had sustained permanent disability consequent to the injuries sustained by him in the accident. Further, he has not filed any document regarding his treatment MACP No. 118/16 & DAR No. 411/15 Page 8 of 18 after 24.09.2015. Accordingly, it is held that he is not entitled to any compensation for loss of future earnings.
(iv) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities:
19. As stated above, the petitioner had suffered grievous injuries on account of the accident. 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 an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by the petitioner and duration of the treatment taken by him etc., an amount of Rs. 15,000/- each is being awarded to him towards mental and physical shock & for pain and sufferings. Further, an amount of Rs.10,000/- is also awarded to him towards the loss of amenities suffered by him during the said period of his treatment. Thus, he is awarded total amount of Rs.40,000/- under this head.
(v) Conveyance & Special Diet:
20. The petitioner in his affidavit Ex. PW 2/A has claimed that he had spent Rs. 15,000/- to Rs. 20,000/- each towards special diet and conveyance. During cross examination, he admitted that he has no documentary proof to show that he had incurred any expenses on special diet and conveyance. Still this tribunal can very well take note of the requirement of conveyance for petitioner for frequently visiting the hospital, Radiological centre and doctor in MACP No. 118/16 & DAR No. 411/15 Page 9 of 18 connection with his treatment and special diet for his early recovery from the injuries suffered because of the accident. Hence, an amount of Rs. 5,000/- each is awarded to the petitioner towards conveyance and special diet. Therefore, the petitioner is held entitled to an amount of Rs. 10,000/- under this head.
Issue No.3/Relief:
21. In view of foregoing reasons, the petitioner is thus awarded a sum of Rs. 76,940/- (Rupees Seventy Six Thousand Nine Hundred And Forty only) along with 7.5% interest from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the award amount.
RELEASE:
22. The entire awarded amount be released to the petitioner in his savings account no. 454902011019234 maintained with Union Bank of India, Basti Bhujbal Branch, Azamgarh, UP, which can be withdrawn by him.
23. The disbursement to the petitioner is, however, subject to addition of future interest till deposit proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from his share.
24. The bank shall not permit any joint names to be added in the savings bank account of petitioner i.e. the bank account of petitioner shall be individual account and not a MACP No. 118/16 & DAR No. 411/15 Page 10 of 18 joint account.
25. It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause above.
LIABILITY:
26. It is the case of R-3/Insurance Company that R- 1/driver was not holding a valid and effective driving license at the time of accident and therefore, he was chargesheeted under Section 3/181 of the M.V. Act as well. Respondents no. 1 and 2 did not controvert the said claim by filing a written statement or adducing any evidence.
27. A perusal of charge-sheet filed by the IO shows that Section 3/181 M.V. Act was invoked against respondent no. 1 due to non possession/production of a valid driving license. Therefore, a presumption has to be drawn that the offending Taxi was being plied without a valid driving license. Hence, it is held that the respondent no. 1 was not having a valid driving license at the time of accident. In view of the law laid down by the Hon'ble Delhi High Court in case Giriraj Vs. Viniti Kohli & Anr., MACA No. 639/19, decided on 23.09.2019, R-3/Insurance Company is held entitled to a right of recovery of the awarded amount from R-2, i.e. owner of the offending vehicle. Therefore, R-3 is first liable to deposit the awarded amount with UCO Bank, Patiala House Court Branch, along with interest @ 7.5% per annum from the date of filing of DAR either by way of crossed MACP No. 118/16 & DAR No. 411/15 Page 11 of 18 cheque/DD in name of the petitioner or by way of deposit in any e-form in bank account being maintained in the above said bank in name of this tribunal within 30 days from today, failing which it will be liable to pay interest at the rate of 9% per annum for the period of delay. In case even after passage of 90 days from today, R-3 fails to deposit this compensation with interest, in that event R-3 shall be liable to pay interest at the rate of 9 % per annum for the period of delay beyond 90 days from today and in light of judgment of the Hon'ble High Court in the case of New India Assurance Company Limited Vs. Kashmiri Lal2007 ACJ 688, this compensation shall be recovered by attaching the bank account of R-3 with a cost of Rs.5,000/-.
28. The respondent no. 3 shall inform the petitioner and his counsel through registered post that the awarded amount has been deposited so as to facilitate them to collect the same.
29. A copy of this award be given to the parties free of charge. Ahlmad is directed to send a copy of the award to the Court of 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.
30. Further, Naib 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.
31. The particulars of Form-XVII of the Modified MACP No. 118/16 & DAR No. 411/15 Page 12 of 18 Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the Rajesh Tyagi Vs. Jaibir Singh & Ors.(supra) on 08.01.2021, are as under:-
1. Date of the accident 04.06.2015
2. Date of filing of Form I- First 02.12.2015 Accident Report (FAR)
3. Date of delivery of Form-II to 02.12.2015 the victim(s)
4. Date of receipt of Form-III 02.12.2015 from the Driver
5. Date of receipt of Form-IV from the owner 02.12.2015
6. Date of filing of the Form-V- 02.12.2015 Interim Accident Report (IAR)
7. Date of receipt of Form-VIA 02.12.2015 and Form VIB from the Victim
(s)
8. Date of filing of Form-VII- 02.12.2015 Detailed Accident Report (DAR)
9. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Not furnished Designated Officer by the Insurance Company.
11. Whether the Designated Officer Yes of the Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No deficiencies on the part of the MACP No. 118/16 & DAR No. 411/15 Page 13 of 18 Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the 11.01.2016 claimant(s) of the offer of the Insurance Company.
14. Date of the award 14.11.2022
15. Whether the claimant(s) were directed to open savings bank Yes account(s) near their place of residence?
16. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and 14.03.2018 produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the claimant
(s) and make an endorsement to this effect on the passbook(s).
17. Date on which the claimant(s) produced the passbook of their savings bank account near 29.08.2018 the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address R/o Bhakuhi Gahaji, of the Claimant(s) Gahaji, Ahraula, Azamgarh, Uttar Pradesh
19. Whether the claimant(s) savings Yes bank acccount(s) is near his place of residence?
20. Whether the claimant(s) were examined at the time of passing Yes MACP No. 118/16 & DAR No. 411/15 Page 14 of 18 of the award to ascertain his/their financial condition?
32. File be consigned to Record room after completion of necessary formalities. Separate file be prepared for compliance report and be put up on 06.01.2023.
Announced in the open court (Sandeep Garg)
on 14.11.2022 PO, MACT,
New Delhi District,
Patiala House Courts,
New Delhi
Encl: The summary of computation in the prescribed format MACP No. 118/16 & DAR No. 411/15 Page 15 of 18 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM XVI
1. Date of accident : 04.06.2015
2. Name of the injured : Sh. Prem Chand
3. Age of the injured : 47 years (on the date of accident)
4. Occupation of the injured : Mason
5. Income of the injured : Rs. 6,735/- per month (minimum wages for unskilled worker in UP)
6. Nature of injury : Grievous
7. Medical treatment taken by the injured: Dr. RML Hospital & Pandey Clinic
8. Period of hospitalization : As discussed above
9. Whether any permanent disability?: No.
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Nil
(ii) Expenditure on Rs. 5,000/-
conveyance
(iii) Expenditure on special diet Rs. 5,000/-
(iv) Cost of nursing/attendant Nil
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs. 26,940/-
(vii) Any other loss which may Nil
require any special
treatment or aid to the
injured for the rest of his
life
12. Non-pecuniary Loss:
(i) Compensation for Rs.15,000/-
mental and physical shock
(ii) Pain and suffering Rs.15,000/-
MACP No. 118/16 & DAR No. 411/15 Page 16 of 18
(iii) Loss of amenities of life Rs.10,000/-
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, Nil
inconvenience, hardships,
disappointment,
frustration, mental stress,
dejectment and
unhappiness in future life
etc.
13. Disability resulting in
loss of earning capacity
(i) Percentage of disability Nil
assessed and nature of
disability as permanent or
temporary
(ii) Loss of amenities or loss Nil
of 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. 76,940/-
15. Interest Awarded 7.5% pa from date
of filing of DAR
till deposit in 30
days and 9% after
90 days.
16. Interest amount up to the Rs. 40,103/-
date of award
17. Total amount including Rs. 1,17,043 /-
interest
18. Award amount released Entire awarded
amout released
19. Award amount kept in the Nil
FDRs/ Motor Accident
Claims Annuity Deposit
(MACAD)
MACP No. 118/16 & DAR No. 411/15 Page 17 of 18
20. Mode of disbursement of Through bank
the award amount to the
claimant (s)
21. Next date for compliance 06.01.2023
of the award
(Sandeep Garg)
PO, MACT,
New Delhi District,
Patiala House Courts,
New Delhi / 14.11.2022
MACP No. 118/16 & DAR No. 411/15 Page 18 of 18