Delhi District Court
Ram Prakash(Dar) vs Amit Kumar (Firno-65/20,Ps-Sangam ... on 9 December, 2023
IN THE COURT OF SH. SUDESH KUMAR-II :
PRESIDING OFFICER : MACT : SOUTH DISTT. : SAKET
COURTS : NEW DELHI
Petition No. : 79/21
CNR No.DLST01-003002-2021
RAM PRAKASH VS. AMIT KUMAR AND ORS.
FIR No. 65/20 PS Sangam Vihar
Sh. Ram Prakash
S/o Late Sh. Jagan Nath
R/o H.No. F-592, Dakshinpuri,
New Delhi. ....PETITIONER
Versus
1. Sh. Amit Kumar
S/o Late Sh. Deshbandhu Dass
R/o C-1161 Behind of Gurudwara,
Rajora Niwas, Tigri, Sangam Vihar,
New Delhi. ...driver cum owner
2. The New India Assurance Co. Ltd.
New Delhi.
Date of Institution : 16.03.2021
Date of reserving of judgment/
order : 09.12.2023
Date of pronouncement : 09.12.2023
JUDGMENT:
1. This is a claim for compensation arising out of the Detailed Accident Report filed u/s 158(6) Motor Vehicle Act, qua petitioner Ram Prakash for the injuries suffered by him in a vehicular accident which occurred on 24.02.2020 with respect to which FIR No.65/20 was registered at Police Station Sangam Vihar against R-1 Amit Kumar, driver of the offending vehicle.
Suit No. 79/2021Ram Prakash vs. Amit Kumar and ors. 1/15 The same is treated as petition under Section u/s 166 and 140 MV Act.
2. The IO has filed copies of the criminal proceedings including FIR and the charge-sheet in the DAR.
3. Brief facts of the vehicular accident as averred in the DAR are that on 24.02.2020 the injured Ram Prakash alongwith his wife namely Smt. Kamla Devi were going on his motorcycle no. DL-3SCZ-5768 to Pul Pahladpur. When they reached at MB Road, Near Majidiya Hospital, Bus Stand, New Delhi at about 11.30 AM, when he started to cross the road for taking petrol, all of a sudden the offending vehicle came in a very high speed in a very negligent manner from Khanpur side and hit him. The injured fell down on the road and received grievous injuries.
4. Legal offer was filed by the insurance company, however same was not accepted by the petitioner/injured.
5. From the pleadings of the parties, following issues were framed by Ld. Predecessor vide order dated 21.10.2021:-
1. Whether injured Ram Prakash sustained injuries in the road accident on 24.02.2020 at 11.30 AM at MB Road near Majidiya hospital bus stand, Sangam Vihar, New Delhi, due to rash and negligent driving of motorcycle bearing no. DL-3SCV-9882 being driven and owned by respondent no. 1 and insured with respondent no. 2/New India Assurance Co.
Ltd.)?.....OPP Suit No. 79/2021 Ram Prakash vs. Amit Kumar and ors. 2/15
2. To what amount of compensation, the injured is entitled and from whom?
3. Relief.
6. I have heard Ld. Counsels for the parties and have carefully perused the court record.
My findings on the issues are as under:-
ISSUE NO. 17. In a claim petition, onus is on the claimant(s)/ petitioner(s) to prove that he or she suffered injuries in a vehicular accident caused by the wrongful act or negligence of the driver of the offending vehicle.
8. In order to establish his claim, the petitioner Ram Prakash has examined himself as PW1. He tendered his affidavit in evidence as Ex.PW1/A. He deposed that on 24.02.2020 he alongwith his wife namely Smt. Kamla Devi were going on his motorcycle no. DL-3SCZ-5768 to Pul Pahladpur, when they reached at MB Road, near Majidiya Hospital, Bus Stand, New Delhi at about 11.30 AM, he started to cross the road for taking petrol, all of a sudden the offending vehicle came in a very high speed in a very negligent manner from Khanpur side and hit him. The injured fell down on the road and received grievous injuries and his right leg was broken/fractured. He was Suit No. 79/2021 Ram Prakash vs. Amit Kumar and ors. 3/15 taken to Batra Hospital, New Delhi. Due to the said accident he has to leave his job and also suffered financial losses in his business for a sum of Rs.20,00,000/- approx. He has relied upon the following documents:-
• Copy of aadhar card is Ex.PW1/1 (OSR).
• Copy of Medical bills are Mark A (colly).
The petitioner was cross-examined by Sh. Kumar Dushyant Singh, Ld. counsel for the insurance company wherein he stated that at the time of accident, he was conscious and has noted the registration number of the offending vehicle. The owner of the offending vehicle took him to the hospital. He denied the suggestion that he has not filed the original medical bills as he has already got the same reimbursed from DAK-Delhi Arogya Kosh. He has not filed any document to show that he has suffered financial loss of Rs.20 Lakhs. He used to be a contractor for constructing houses at the time of accident.
9. No evidence was led on behalf of any of the respondents despite opportunity being given.
10. Ld. Counsel for the petitioner has argued forcefully that from the evidence of PW1 coupled with the criminal record placed, the petitioner has proved the fact that it was the respondent no. 1 who had caused the grievous injuries to the injured by his rash and negligent driving.Suit No. 79/2021
Ram Prakash vs. Amit Kumar and ors. 4/15
11. On the other hand, Ld. Counsel for the insurance company has stated that the injured was himself negligent in crossing the road.
12. In the present case, it is pertinent to note that the respondent no. 1/ driver of the offending vehicle was the material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box during the course of the inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of offending vehicle. The driver did not enter into the witness box to controvert the claim of the petitioners or even to explain the circumstances of accident. The evidence led by petitioners is unrebutted and un-controverted.
13. In the present case, the Investigating Officer had filed the DAR containing FIR, Charge sheet, site plan, MLC etc. Charge sheet has been filed against the respondent no.1. PW1 Ram Prakash had categorically deposed about the occurrence of the accident due to rash and negligent driving of the Respondent No.1. The statement of the injured that the offending vehicle hit him finds support from the fact that the I.O. seized the offending vehicle and got it mechanically inspected.
14. In this regard observations made by the Hon'ble Supreme Court in New India Assurance Company Ltd. vs. Suit No. 79/2021 Ram Prakash vs. Amit Kumar and ors. 5/15 Pushpa Rana and Ors. reported in 2007 SCC online DEL 1700 has to be considered wherein it was held that :-
"the wife of the deceased had produced (1) certified copy of criminal record of criminal case in FIR No. 955/2004 pertaining to involvement of the offending vehicle; (2) Criminal record showing completion of investigation of police and issue of charage-sheet under Section 279/304-A IPC against the driver; (3) certified copy of FIR wherein criminal case against the drive was lodged; and (4 ) recover memo and mechanical inspection report of the offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent."
15. It is a settled legal position that while deciding a petition u/s 166 of the M V Act, the Claims Tribunal has to decide negligence on the touchstone of preponderance of probabilities. Reference in this regard is made to the observations of the Hon'ble Supreme Court of India in Kaushnumma Begum and Others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, wherein it was held that the issue of wrongful act or omission on the part of the driver of motor vehicle involved in the accident is of secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable u/s 166 & 140 of the M V Act.
16. DAR and copies of criminal proceedings filed alongwith it are admissible in evidence and deemed to be correct under Rule 7 of the Motor Accident Claims Tribunal Rules, 2008 Suit No. 79/2021 Ram Prakash vs. Amit Kumar and ors. 6/15 until proved to be contrary. Copies of criminal proceedings filed include FIR, chargesheet, site plan, MLC of the petitioner, mechanical inspection report of the offending vehicle besides the documents of the offending vehicle. Accident in the matter is admitted by the respondents.
17. The petitioner in his affidavit Ex.PW1/A has clearly deposed that the driver of the offending vehicle was driving it rashly and negligently. As already observed, the entire investigation conducted by the IO also support the version of the petitioner.
18. On the basis of evidence on record, above observation and discussion it is proved that the abovesaid accident took place due to rash and negligent driving of R1 Amit Kumar due to which the injured received injuries. Accordingly, issue no. 1 is decided in favour of the petitioners.
Findings on Issue no.2:
To what amount of compensation, the petitioner is entitled and from whom?
19. Now, the court has to assess as to how much compensation be awarded to the claimant and by whom? First of all the court has to decide as to whom the liability to pay the compensation is fastened.
20. As the offending vehicle was being driven and owned Suit No. 79/2021 Ram Prakash vs. Amit Kumar and ors. 7/15 by respondent no. 1, so respondent no.1 is primarily liable to compensate the petitioner. It is an admitted position on record that the vehicle was insured with respondent no.2, therefore, respondent no. 2 becomes contractually liable to compensate the petitioners/claimants for the amount.
21. Now the Court has to decide the compensation which the injured is entitled. Injured in road traffic accident is entitled to damages for the injury suffered by him arising out of use of Motor Vehicle under both non-pecuniary and pecuniary heads.
MEDICAL EXPENSES :
22. As per the MLC, the petitioner has suffered grievous injuries. The petitioner has filed medical bills to the tune of Rs.41,077/-. Medical bills are in the name of petitioner and coincide with the period of treatment. These documents were never disputed. Keeping in view the nature of injuries and bills placed on record, I hereby grant a sum of Rs.41,077/- towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
23. As per the discharge summary, the injured was diagnosed with "fracture both bones leg right side with fracture right coronoid process". He was hospitalised in Batra Hospital on 24.02.2020 and discharged on the same date. As per the MLC, the injuries on the petitioner were grievous in nature.
Suit No. 79/2021Ram Prakash vs. Amit Kumar and ors. 8/15 Having regard to the injuries and treatment of the petitioner, I award him Rs.70,000/- towards pain and sufferings and enjoyment of life SPECIAL DIET, CONVEYANCE AND ATTENDANT CHARGES :
24. In the present case the petitioner has not placed on record any document with regard to special diet, conveyance and attendant charges. However, the injuries on his person were such that he must have taken special diet for his early recovery. He must have spent some amount on conveyance and attendant. Therefore, looking into all the facts, I award Rs.30,000/- to the petitioner towards special diet, conveyance and attendant charges.
LOSS OF INCOME/ FUTURE LOSS OF INCOME
25. Here in the present case, the petitioner has stated in his cross-examination that he was working as contractor for constructing houses at the time of accident. However, the petitioner has not placed any document or produced any witness to prove the same. Hence, in the absence of any proof of income, the minimum wages of an 'unskilled worker' in Delhi is taken into consideration which was Rs.14,842/- at the time of accident i.e. 24.02.2020.
The injuries on the person of the petitioner were such that he must have remained out of work for least six months. Thus, the loss of income comes to Rs. (14,842 x 6) =Rs.89,052/-.
Suit No. 79/2021Ram Prakash vs. Amit Kumar and ors. 9/15 The total compensation in favour of the petitioner is assessed as under :
MEDICAL EXPENSES :Rs.41,077/-
PAIN & SUFFERINGS &
ENJOYMENT OF LIFE :Rs.70,000/-
SPECIAL DIET, CONVEYANCE &
ATTENDANT :Rs. 30,000/-
LOSS OF INCOME :Rs. 89,052/-
==========
TOTAL :Rs.2,30,129/-
==========
RELIEF
26. In view of my findings on the issues, I award a sum of Rs.2,30,129/- (Rupees Two Lakhs Thirty Thousand One hundred Twenty Nine) to petitioner Ram Prakash as compensation along- with interest @ 9% per annum from the date of filing the DAR till its realization. Entire amount with interest be released to the injured.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
27. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, respondent no. 2 are directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioner within a period of 30 days from today, failing which respondent no.2 shall be liable to pay future interest @ 12% per Suit No. 79/2021 Ram Prakash vs. Amit Kumar and ors. 10/15 annum till realization (for the delayed period).
28. The respondent no.2 are directed to credit the amount directly to the MACT account of State Bank of India, District Court, Saket branch. Details of the bank i.e. IFSC code etc. have been provided to the Ld. counsel for the respondent no.2.
29. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING A/c 35195787436 IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir alongwith calculation of interest and to the Counsel for the petitioners.
30. MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE'(MCTAP)
31. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :-
1. The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of their saving bank account with State Bank of India, Saket Court Branch, New Delhi.
2. Withdrawal from the aforesaid account shall be permitted Suit No. 79/2021 Ram Prakash vs. Amit Kumar and ors. 11/15 to petitioner/claimant after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
3. No cheque book be issued to petitioner/claimant without the permission of this Court.
4. The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioner/claimant alongwith the photocopy of the FDR's .
5. The original fixed deposit receipts shall be handed over to petitioner/claimant at the end of the fixed deposit period.
6. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
7. Half yearly statement of account be filed by the Bank in this Court.
8. On the request of petitioner/claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
9. Petitioner/claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
10.The bank is also directed to get the nomination form filled by the claimant at the time of preparation of FDRs.
11.The bank is also directed to keep the money received from the respondents in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
12.The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioner from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 41125-41127/2017 in Rajesh Tyagi & Ors.
vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/NEFT directly in the personal bank account of the petitioner of the bank nearest to his place of Suit No. 79/2021 Ram Prakash vs. Amit Kumar and ors. 12/15 residence, the details of which have been given by the petitioner to the Tribunal and same details shall be given by them to the Manager SBI, District Court Saket branch.
DIRECTIONS FOR THE RESPONDENT No. 2• The Respondent no. 2 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
• The Respondent no. 2 is directed to furnish a copy of this award alongwith the cheque of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant/petitioner in whose favour the award has been passed.
• The Respondent no. 2 shall intimate the claimant/petitioner about its having deposited the cheque in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
• Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after his having received the notice of the deposit of awarded amount by the respondent no. 2. • The case is now fixed for compliance by the respondent Suit No. 79/2021 Ram Prakash vs. Amit Kumar and ors. 13/15 no.2 for 06.02.2024.
FORM IV-B
SUMMARY OF COMPUTATION OF AWARD
AMOUNT IN INJURY CASE
Date of accident : 24.02.2020
Name of the injured : Ram Prakash
Age of the injured: 56 years
Income of the injured : Minimum wages of Delhi
Nature of injury : Grievous
Medical treatment
taken by the injured : Yes
Computation of Compensation
S. Heads Awarded by the
No. Claims Tribunal
1 Pecuniary Loss :
i Expenditure on treatment Rs.41,077/-
ii Expenditure on special diet, conveyance and Rs.30,000/-
attendant
iii Loss of Income during the period of Rs.89,052/-
treatment
iv Loss of Study -------
v Any other loss which may require any -----
special treatment or aid to the injured for the rest of his life.
2 Non-Pecuniary Loss :
i Compensation for mental and physical shock ------- ii Pain and suffering & enjoyment of life Rs.70,000/-
iii Loss of amenities --
Suit No. 79/2021
Ram Prakash vs. Amit Kumar and ors. 14/15
iv Dis-figuration and marriage prospects -----
v Loss of marriage prospects -----
vi Compensation on account of permanent -----
disability
3 Disability resulting in loss of earning capacity :
(i) Percentage of disability assessed and nature -----
of disability as permanent or temporary
(iii) Future Loss of Income --
4 TOTAL COMPENSATION Rs.2,30,129/-
5 INTEREST AWARDED 9% 6 Total amount of interest Rs.57,417/-
7 Total amount including interest Rs.2,87,546/- 8 Award amount released Rs.2,87,546/-
9 Award amount kept in FDRs --
10 Mode of disbursement of the award amount Whole amount be
to the claimant(s) released to the
injured.
11. Next date for compliance of the award 06.02.2024
Pronounced in the open court
on 09.12.2023
(SUDESH KUMAR-II)
Presiding Officer : MACT (S)
Saket Courts : New Delhi
Suit No. 79/2021
Ram Prakash vs. Amit Kumar and ors. 15/15