Delhi District Court
Nakul vs Deepak And Ors on 5 September, 2024
IN THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH WEST, ROHINI COURTS, DELHI
PRESIDED BY SH. SHIVAJI ANAND,
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UID No./CNR No. DLNW01-005197-2022 MACT CASE No. 508/22 FIR No. 219/21, PS Kanjhawala In the matter of :
1. Nakul S/o Mahender Singh R/o VPO Chhara, Jhajjar, Haryana.
....Petitioner Vs.
1. Deepak S/o Sumar Singh R/o H.No.129, VPO Ghevra, Delhi.
....Driver/R1
2. Bhupender S/o Kanwal Singh R/o H.No.503, VPO Ghevra, Delhi.
....Owner/R2
3. HDFC Ergo General Insurance Co. Ltd.
O/o C-9, 3rd Floor, Netaji Subhash Place, Delhi.
....Insurance Company/R3 Date of institution of the DAR : 09.06.2022 Date of final Arguments : 05.06.2024 Date of Decision : 05.09.2024 Appearance (s) : Ms. Narmada Sh. Anil Bhardwaj, Ld. Counsel s for petitioner.
Amir Mohd. And Sh. Ashok Kumar, Ld. counsels for R1 & R2.
Sh. Chaitanya Jain, Ld. counsel for R-3 MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
Page no. 1 of 18 Digitally signed SHIVAJI by SHIVAJI ANAND ANAND 16:49:48 Date: 2024.09.05 +0530 JUDGMENT/AWARD
1. Vide this judgment/award, I shall dispose off the Detailed Accident Report (in short, the DAR) filed by IO Si Dhaneram in FIR No.219/21, PS Kanjhawala, Delhi pertaining to injuries sustained by Nakul (in short, the injured) in road accident occurred on 19.04.2021.
FACTUAL POSITION AND PLEADINGS
2. The brief facts relevant for disposal of the present DAR are that on 19.04.2021, petitioner Nakul was driving his motorcycle bearing registration no.DL-10SA-0172 (in short, "the vehicle") and goind towards Bahadurgarh from Bus Depot, Rani Khera. Suddenly, at about 10:30 pm, when he reached at village Ghevra and was taking turn near Firni Road, Village Ghevra. Suddenly, a vehicle bearing registration no.DL-1CAB-2296 XUV 300 (in short, "the offending vehicle") came from Kanjhawala side which was being driven by respondent no.1 in a rash and negligent manner. As a result, petitioner fell down on the road and sustained injuries.
3. However, the petitioner Nakul was taken to CD Global Hospital, Mundka, Delhi where his MLC bearing no.70/21 was prepared by the doctor. Thereafter, he was referred to Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi. An FIR No.219/2021, PS Kanjhawala, Delhi was registered U/s 279/338 IPC in this regard.
4. Respondent no.1 and 2 have filed their WS wherein they have stated that the petitioner has not come with the clean hands before Digitally signed SHIVAJI by SHIVAJI ANANDMACT Case No. 508-22 (FIR No.219-21) ANAND Date: 2024.09.05 16:56:28 +0530 Nakul vs. Deepak & Ors.
Page no. 2 of 18 this court and has concealed the material facts and file the DAR to extort money from the answering respondents, hence, the present DAR is liable to be dismissed. It is further stated that the said vehicle is duly insured with the insurance company i.e. HDFC Ergo General Insurance Company vide policy bearing no.2311202740452002000 policy period w.e.f. 12.04.2021 to 11.04.2022 and at the time of alleged accident, the said vehicle in question is duly insured.
5. Legal offer was filed on behalf of R3/insurance company.
ISSUES:
6. Following issues were framed by this Tribunal on 02.12.2022:
1. Whether petitioner Nakul, S/o Sh. Mahender Singh suffered injuries in road traffic accident on 19.04.2021 at about 10.32 PM, Near Firme Road Village Ghevra, ghevra to Kanjhawala Main Road, Delhi, due to rash and negligent driving of offending vehicle i.e. Mahindra XUV300 bearing registration no. DL-
1CAB-2296 which was being driven by driver Deepak S/o Sh. Sumar Singh on the said date, time and place? OPP.
2. Whether the petitioner/injured is entitled for compensation, if so, to what amount and from whom? OPP
3. Relief.
PETITIONER'S EVIDENCE
7. Thereafter, matter was listed for recording of evidence before Local Commissioner. In order to prove his case, petitioner examined himself as PW-1 before Local Commissioner and tendered his evidence by way of affidavit Ex. PW1/A bearing his signatures at point A and B and relied upon the documents i.e. The original MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
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SHIVAJI ANAND
Date:
ANAND 2024.09.05
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medical documents of CD Global Hospital which is Ex.PW1/1, Medical Document of Sanjay Gandhi Memorial Hospital which is Ex.PW1/2, Medical document of JJ Institution of Medical Science which is Ex.PW1/3, GD no.0123 A which is Ex.PW1/4 (running into 3 pages), FIR No.219/2021, PS Kanjhawala which is Ex.PW1/5 (running into 3 pages), Site plan which is Ex.PW1/6, Mechanical Inspection report of offending vehicle is Ex.PW1/7 and his vehicle is Ex.PW-1/8, Copy of chargesheet is Ex.PW-1/9 (running into 6 pages). My leave certificate which is Ex.PW-1/10 (running into 1 page of evidence affidavit), salary slip of month March 2021 which is Ex.PW-1/11 (running into 1 page) (objected to mode of true as original salary slip not on record by counsel for R1, R2 and R3), My identity card which is Ex.PW-1/12, DAR filed by the police which is Ex.PW-1/D (colly ), DL of the respondent is de-exhibited and marked as Mark A and RC of the offending vehicle is de-exhibited and marked as Mark B and order for ascertaining his disability is now re-exhibited as Ex.PW-1/13 instead of Ex.PW-1/15.
8. In his cross examination done by Ld. Counsel for R1 and R2, he deposed that he is having his driving license and he has placed the same on record. He denied the suggestion that he did not exhibit his driving license because it is fake. His accident took place on 19.04.2021, he deposed that he has not mentioned the purpose of his visit to the accident spot on the date of accident. He further deposed that his accident took place at 10:30 pm. He denied the suggestion that no accident took place by the offending vehicle. He was familiar with R1 prior to the accident. R1 was driving XUV300 MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
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Mahindra Vehicle and the number of offending vehicle is DL- 10CAB-2296, he denied the suggestion that some other vehicle hit him and R1 stopped there to help him. He denied the suggestion that he felt giddiness and hit some another vehicle which cause injury to him. He denied the suggestion that he was not working with Green City Transport Corporation Pvt. Ltd and he was not drawing any salary. He hold electrician degree from ITI from Bahadurgarh. He deposed that he has not placed any document support of his degree. He denied the suggestion that he had not spent any amount on his treatment. He further denied the suggestion that the accident was occurred due to any negligence on his part. He denied the suggestion that he was deposing falsely.
9. In his cross examination done by Ld. Counsel for R3, he deposed that he was aged about 24 years when the accident took place. He did not place copy of his aadhar card on record, his treatment was done by ESI and only the expense of his transportation and diet was borne by him, he does not know whether doctor advised him for bed rest. He voluntarily deposed that he was unable to move and walk so he was unable to go to job. He was working as electrician at Rani Khera Depot of Green City Transport Corporation pvt. Ltd. And was drawing salary of Rs.19,323/- per month. He had placed on record his salary slip regarding his income. He has not placed any joining letter on record. He voluntarily deposed that he had placed his identity card of his job on record. Presently, he is unemployed. He further deposed the doctor did not give him any diet chart however, he advised him orally.
MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
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ANAND
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10. Sh. Narender Dabas, working as Accidental Legal Report, Village Rani Khera, Delhi has been examined as PW-1 before the court and deposed that he is summoned witness in the present case. He further deposed that today, he has brought his authority letter to appear before the court and the same is Ex.PW-1/A and his ID card is Ex.PW-1/B. He has brought the salary slip of Nakul whose employee ID is GCT169 for the month of March 2021 and the same is Ex.PW-1/C. He has also brought the resignation letter of Nakul and the same is Ex.PW-1/D.
11. In his cross examination done by Ld. Counsel for R3, he deposed that he has joined the services on 15.01.2020 as mentioned in his salary slip and the salary of Nakul for the month of March 2021 is Rs.19,323/-. Thereafter, petitioner evidence was closed and matter was listed for respondents evidence.
RESPONDENT'S EVIDENCE:
12. No evidence has been led by respondents. Hence respondent evidence was closed.
ARGUMENTS & FINDINGS:
13. I have heard ld. Counsel for the petitioner and have gone through the testimony of the witnesses, the pleadings and the documents. My issue wise findings in the case are as under :-
ISSUE NO.1
1. Whether petitioner Nakul, S/o Sh. Mahender Singh suffered injuries in road traffic accident on 19.04.2021 at about 10.32 MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
Page no. 6 of 18 Digitally signed by SHIVAJI SHIVAJI ANAND ANAND Date: 2024.09.05 16:56:52 +0530 PM, Near Firme Road Village Ghevra, ghevra to Kanjhawala Main Road, Delhi, due to rash and negligent driving of offending vehicle i.e. Mahindra XUV300 bearing registration no. DL- 1CAB-2296 which was being driven by driver Deepak S/o Sh. Sumar Singh on the said date, time and place? OPP.
14. 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. 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, reported in (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.
15. As already discussed above, the petitioner examined himself as PW-1 in order to prove the facts regarding the occurrence of accident. He deposed that on 19.04.2021, he was driving his motorcycle bearing registration no.DL-10SA-0172 MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
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and goind towards Bahadurgarh from Bus Depot, Rani Khera. Suddenly, at about 10:30 pm, when he reached at village Ghevra and was taking turn near Firni Road, Village Ghevra. Suddenly, a vehicle bearing registration no.DL-1CAB-2296 XUV 300 came from Kanjhawala side which was being driven by respondent no.1 in a rash and negligent manner. As a result, he fell down on the road and sustained injuries. None of the respondents could bring any material on record which was inconsistent with the version of the petitioner. There is nothing on record which suggests that oral testimony of PW-1 could not be believed. As such, this Tribunal finds it appropriate to hold that the oral testimony of PW-1 is reliable and trustworthy.
16. The very fact that R-1 has already been chargesheeted for the offences punishable under Sections 279/338 IPC in the above criminal case/FIR in itself is a strong circumstance to support the above oral testimony of PW1 and the case of petitioner on this issue. The copies of FIR, Chargesheet and MLC, also corroborate the oral testimony of PW1.
17. Besides the above, R-1 himself was the best witness who could have stepped into the witness box to challenge the depositions being made by PW1 regarding the above accident and its manner etc., 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 the law laid down in case of Cholamandalam M.S. General Insurance Company Ltd. Vs. MACT Case No. 508-22 (FIR No.219-21) Digitally signed Nakul vs. Deepak & Ors.
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SHIVAJI ANAND
ANAND Date:
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Kamlesh, reported in 2009 (3) AD (Delhi) 310.
18. Legal offer was filed on behalf of insurance company, thus, it shows that the insurance company admits its liability and that proves that the accident had occurred due to rash and neglignet driving of R1/driver of the offending vehicle.
19. In view of the above discussion, this tribunal is of considered opinion that R-1 is guilty of rash and negligent driving of offending vehicle at the relevant time leading to the accident in which petitioner sustained grievous injuries.
20. The medical treatment documents placed on record by the petitioner shows that he suffered grievous injuries on account of neglect and default of R-1 while driving the offending vehicle at the relevant time. This issue thus stands decided against the respondents and in favour of the petitioner.
ISSUE NO. 2"'Whether the petitioner is entitled for compensation? If so, to what amount and from whom?"
21. As the issue no.1 has been proved in affirmative and in favour of the petitioner, the petitioner has become entitled to be compensated for the injuries suffered in the above accident, but the computation of compensation and liability to pay the same are required to be decided.
22. In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
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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 non-pecuniary 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 she had already incurred or is likely to incur in respect of the injuries suffered by her in the accident. The non-pecuniary or general damages are those damages which are incapable of being assessed which includes the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life 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 she was before the accident and an effort is to be made only to reasonably compensate her or to put her almost in the same place or position where she 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. Reference in this regard can be made on some of important judgments on the subject like the judgment in the case of Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343.
23. In light of the above legal propositions, the amount of compensation which could be considered to be 'just' in the MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
Page no. 10 of 18 SHIVAJI Digitally signed by SHIVAJI ANAND ANAND 16:57:13 +0530 Date: 2024.09.05 opinion of this tribunal shall be as under:-
(i) Medical or Treatment Expenses
24. The petitioner has placed on judicial file only one bill for an amount of Rs.500/- of Jeevan Jyoti Medical Hospital Ex.PW-1/3 (colly running into 12 pages). Thus, the petitioner is held entitled to an amount of Rs.500/- under this head.
(ii) Pain and Suffering
25. As per disability certificate of petitioner, he has suffered 26% disability in relation to Lower Limb from the date of accident. The said claim is duly corroborated by the medical records. The petitioner was hospitalized for a long term. It is not possible to quantify the compensation admissible to injured for the shock, pain and sufferings etc. which he actually suffered because of the above injuries, but as stated above, an effort has to be made to compensate his for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by injured and duration of the treatment taken by his etc., an amount of Rs.2,00,000/- is being awarded to his towards pain and sufferings during the said period of her treatment and immobility. Thus, he is awarded a total amount of Rs.2,00,000/- under this head.
(iii) Loss of Actual Earnings
26. The petitioner has deposed that at the relevant time, he was working as Electrician at Rani Khera Depot of Green City Digitally MACT signedCase No. 508-22 (FIR No.219-21) SHIVAJI by SHIVAJI ANAND Nakul vs. Deepak & Ors.
Page no. 11 of 18 ANAND Date: 2024.09.05 16:57:18 +0530 Transport Corporation Pvt. Ltd and was earning Rs.19,323/- per month. He could not attend his work from the date of accident i.e. 19.04.2021 to 18.02.2022. In order to support his abovesaid claim as to his employment and monthly income, petitioner has filed document on record and lead evidence of Sh. Narender Dabas and he has filed the Ex.PW-1/C (Salary slip of Nakul for the month of March 2021). In his cross examination, Sh. Narender Dabas has deposed that the salary of Nakul is Rs.19,323/-. In the above facts and circumstances, it would be appropriate that the monthly income of petitioner be considered as Rs.19,323/-. Keeping in view the nature of injuries sustained by the petitioner as well as his prolonged medical treatment, it could be safely assumed that the petitioner would not have been able to resume his work/ vocation till 1 year. As such, the petitioner is held entitled to a sum of Rs.2,31,876/- (Rs.19,323/- X 12). The said sum is awarded to the petitioner under this head.
(iv) Loss of future earnings due to disability
27. Petitioner has become permanently disabled after the accident and cannot do the work in near future. However, as observed earlier, the petitioner has been able to prove the nature of his vocation/ employment and therefore, the monthly income of the petitioner is considered to be Rs.2,3,876/-. Admittedly, petitioner has suffered 26% permanent physical impairment. The above disability would definitely lower/ reduce the employability of any person and thereby hamper his earning capacity. In the absence of any material to the contrary, it would be appropriate to hold that the MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
Page no. 12 of 18 Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2024.09.05 16:57:24 +0530 functional disability of petitioner be assessed at 26%. This Tribunal has already assumed the monthly income of petitioner to be Rs.19,323/- at the relevant time. As far as the age of petitioner at the time of accident is concerned, the photocopies of petitioner's Aadhar Card shows the date of birth of petitioner is 21.10.1997. By calculation, the age of petitioner as on the date of accident i.e. 19.04.2021 was 23 years 5 months 29 days. Therefore, in view of the law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr.,(2009) 6 SCC 121, which has also been upheld by the Constitution Bench of the Hon'ble Supreme Court in a recent judgment dated 31.10.2017 given in the case of National Insurance Company Ltd. vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, the multiplier of '18' is held applicable for calculating the loss of future earnings of petitioner arising out of her above disability. The petitioner is also entitled to future prospects as per the observations made by a Three Judge Bench of Hon'ble Supreme Court in Erudhaya Priya Vs. State Express Transport Corporation Ltd., MANU/SC/0545/2020 [please see para 7 (b)]. Thus, the loss of future earnings of petitioner due to her above injury and permanent disability comes to is calculated as follows:
S. Head Amount (Rs.) Remarks No. Digitally signed by SHIVAJI SHIVAJI ANAND ANAND Date: 2024.09.05 16:57:30 +0530
MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
Page no. 13 of 18 1 Monthly Income of injured (A) 19,323 2 Monthly loss of earning (B) 5,023.98 26% of (A) (as petitioner sustained grievous injuries and suffered 26 % disability) 3 Annual Loss of earning (C) 60,287.76 (B) x 12 = (C) 4 Multiplier @ 18 5 Total Loss of earnings (D) 10,85,179.68 (C) x 18(multiplier) = (D) 6 Add: Future prospects @ 40% 4,34,071.872 40% of (D) = (E) (E) Rounded Off to: 15,19,252 approx.
(v) Conveyance, Attendant Charges and Special Diet
28. Petitioner has claimed the compensation under this Head. He claimed separate compensation under these heads. But no documents has been filed by the petitioner regarding the attendant Digitally signed by SHIVAJI MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
SHIVAJI ANAND
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charges, conveyance and special diet. In view of the nature of injuries sustained by the petitioner, the extent of permanent physical disability and the prolonged period of his medical treatment, the petitioner is granted a sum of Rs.20,000/- each under Attendant Charges, Conveyance and Special diet.
(vi)LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
29. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had sustained grievous injuries and disability in relation to Lower Limb. Thus, the petitioner would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries suffered by him, it can be assumed that he has suffered for 1 year. After disability, the petitioner would have permanent loss of amenities and enjoyment of life. The same is very difficult to be calculated in terms of money. To rationalize the same, the yearly loss under this head is calculated to be Rs.20,000/-. To further rationalize the same with the expected life of the petitioner, the yearly loss is multiplied with relevant multiplier of 18. Thus, award amount of Rs.20,000 x 18 = Rs.3,60,000/- towards loss of general amenities and enjoyment of life is granted to the petitioner.
(vii) LOSS OF MARRIAGE PROSPECTS
30. The claimant/injured was aged about 24 years at the time when he met with an accident, has been struggling for his Digitally signed MACT by Case No. 508-22 (FIR No.219-21) SHIVAJI Nakul vs. Deepak & Ors.
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survival and overcome his disabilities. He may have managed to survive and with future treatments, and advancement of medical science may overcome his disability to some extent, but his fruitful years are lost, spent in and out of the hospital under a hope of overcoming the disability and restoring himself in a position of a young man with dreams in his eyes. No amount of compensation can bring his years back nor offer any solace for his sufferings, and but for the accident, and the injury sustained therein, he would have led a happy and healthy life. On account of the permanent disability incurred, his movements are restricted and also affected his ability to perform all that activity which, as a normal human being, he would have been able to perform. Though he may somehow manage to engage himself in some gainful activity/avocation, his life will never remain the same. It is clear that due to the injuries, PW-1/petitioner has missed out on marriage prospects, as he is still unmarried. In view of the above, a sum of Rs.1,00,000/- is awarded to the petitioner/injured under this head.
Thus, the total compensation is assessed as under : -
S. No. Head Amount
1 Medical Expenses 500
2 Pain and Suffering 2,00,000
3 Loss of actual earning 2,31,876
4 Loss of future earning due to disability 15,19,252
5 Conveyance and special diet 40,000
6 Attendant Charges 20,000
MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
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7 Loss of General Amenities and enjoyment of 3,60,000 life 8 Loss of Marriage Prospects 1,00,000 Total 24,71,628 Issue No.3/Relief
31. The petitioner is thus entitled to a sum of Rs.24,71,628/- (Rupees Twenty Four Lacs Seventy One Thousand Six Hundred Twenty Eight only) along with interest @ 9% per annum from the date of filing of the DAR i.e. 09.06.2022 till actual payment. 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.
Liability
32. Respondent no.3/HDFC Ergo General Insurance Co. ltd. is hereby directed to deposit the Award amount in SBI, Rohini Courts Branch within 30 days as per above order, failing which they shall be liable to pay interest @ 9% p.a for the period of delay. The parties are directed to download the digital copy of judgment online.
APPORTIONMENT
33. It is noted that statement of claimant/ petitioner in terms of Clause 26 MCTAP was not recorded. Therefore, the MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
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34. Form V and IVB in terms of MCTAP are annexed herewith as Annexure-A.
35. A separate file be prepared for compliance report by the Nazir and put up the same on 07.10.2024.
File be consigned to record room after due compliance. ANNOUNCED IN THE OPEN COURT ON 5th DAY OF September, 2024. Digitally signed by SHIVAJI SHIVAJI ANAND ANAND Date:
2024.09.05 16:58:00 +0530 (SH. SHIVAJI ANAND) DJ-1+MACT, NORTH WEST, ROHINI COURTS, DELHI MACT Case No. 508-22 (FIR No.219-21) Nakul vs. Deepak & Ors.
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