Delhi District Court
Sh. Raj Kumar (Injured) vs Sh. Himanshu Gupta (Driver) on 5 January, 2023
IN THE COURT OF Dr. KAMINI LAU:JUDGE (MACT)01 CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI MACT No. 225/2022 CNR No. DLCT010048522022 FIR No. 635/2021 PS : Patel Nagar U/s. 279/337 IPC Sh. Raj Kumar (Injured) S/o Sh. Hira Nand R/o K220, Gali No. 6. Maan Hospital, 70 Foota Road Prem NagarII, Kirari Suleman Nagar Nangloi, North West Delhi110086. ......... Petitioner Versus 1. Sh. Himanshu Gupta (Driver) S/o Sh. Dinesh Chandra Mathuria R/o A118/13, Nehru Nagar, Ghaziabad, Uttar Pradesh. 2. ICICI Lombard General Insurance Co. Ltd. (Insurer) 4th Floor, Parsavnath Capital Tower Bhai Veer Singh Marg, New Delhi110001. .......... Respondents Date of filing of DAR: 24.02.2022 Fate of filing of Claim Petition: 16.03.2022 Arguments concluded on: 07.12.2022 Date of Award: 05.01.2023 AWARD: (1) The present Detail Accident Report (DAR) was filed on 24.02.2022 and was registered as Motor Accident Claim Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 1 of 28 Petition regarding a vehicular accident which took place on 25.11.2021 at 08:10 PM at G. L. Sikka Marg, near Sidhartha Hotel, Rajindra Place, Delhi wherein the petitioner Raj Kumar had sustained Grievous Injuries. On 16.03.2022, a Claim Petition under Section 166 and 140 of Motor Vehicles Act was also filed by the petitioner in respect of the said accident pursuant to which the DAR was tagged along with the Claim Petition. BRIEF FACTS:
(2) The Facts in brief as they emerge from the DAR/ Claim Petition are that on 25.11.2021 at about 07:30 PM, the petitioner Raj Kumar along with Rishikesh Kumar were coming from office towards their home on a Scooty bearing no. DL9SBM9519. The said scooty was being driven by the petitioner Raj Kumar whereas Rishikesh Kumar was the pillion rider. When they reached at G. L. Sikka Marg near main gate of Sidhartha Hotel, a Car bearing registration no. UP14DX 6260 came from behind at a very high speed in the rash and negligent manner and hit the Scooty being driven by the injured. Due to the impact, both Raj Kumar and Rishikesh Kumar fell down on the road. However, Rishikesh Kumar noted down the number of the offending car. The driver of the offending cat stopped his vehicle and removed the injured Raj Kumar to BLK MAX Hospital, Rajindra Place where he received treatment. Pursuant to the accident, an FIR bearing No. 635/2021 under Sections 279/337 IPC was registered at Police Station Patel Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 2 of 28 Nagar. It is the case of the petitioner that he was also treated as outpatient patient in JM Khera Hospital, main Najafgarh Road; Pushpanjali Hospital & Trauma Centre, main Rohtak Road, Peeragarhi and Paschimi Hospital New Multan Nagar and on 30.11.2021 the petitioner was admitted in Shree Aggarsen Hospital, Sector22, Rohini and discharged on 06.12.2021 after undergoing the surgical operation. According to the petitioner, so far he had spent a sum of Rs.1,00,000/ (Rupees One Lac only) on his medical treatment, medicines, conveyance and special diets and is likely to spent much more on these heads in future as he is still under active treatment. The petitioner has sought a compensation to the tune of Rs.20,00,000/ (Rupees Twenty Lac only) in his favour and against the respondents with cost of the petition and interest @ 18% per annum from the date of filing of the petition till its realization. (3) The respondent no.1 Himanshu Gupta (Drivercum Owner) has filed his written statement/ reply to the DAR/ Claim Petition wherein he has disputed the Final Report filed by the Investigating Officer. It is pleaded that the respondent no.1 was driving his car at a much lower speed than the required speed due to the curved road. It is further pleaded that after crossing the Sidhartha Hotel Main Gate, when the car was proceeding towards Pusa Road, Gol Chakkar at the speed of 3035 km/hrs, in its lane, suddenly one person driving his scooty in a rash and negligent manner came in front of his car and applied sudden brakes due to which the scooty slipped on the road in front of his car. It is alleged that the accident took place due to the rash and Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 3 of 28 negligent driving by the scooty driver. According to the respondent no.1, he immediately stopped his car but since the injured applied brakes suddenly, the car slightly touched the scooty which had already slipped. It is further pleaded that there was no direct collusion between the car and the scooty of the injured. It is also pleaded that the car of the respondent no.1 is duly insured with ICICI Lombard General Insurance Co. Ltd. and the respondent no.1 has been holding a valid driving license at the time of incident and hence the claim if any, is to be borne by the respondent no. 2 Insurance Company. (4) In so far as the respondent no.2 ICICI Lombard General Insurance Company Ltd. is concerned, it is submitted that the vehicle bearing no. UP14DX6260 was insured with the respondent no.2 company vide Policy No. 3001/O/MI 09716067/00/00 valid from 21.12.2020 to 30.12.2021 subject to its terms and conditions. The respondent no.2 insurance company has filed a Reasoned/ Legal Offer for sum of Rs.50,000/ (Rupees Fifty Thousand only) towards full and final settlement which the petitioner has refused to accept.
ISSUES FRAMED:
(5) The petitioner having refused to accept the Reasoned/ Legal Offer of the Insurance Company, on the basis of the pleading of the parties, vide order dated 21.07.2022 this Court/ Tribunal has settled the following issues:
1. Whether the petitioner/injured namely Raj Kumar had sustained Grievous injury in the road traffic Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 4 of 28 accident which had taken place on 25.11.2021 at about 8:10 PM at G. L. Sikka Marg, near Sidhartha Hotel, Rajindra Place, Delhi? (OPP)
2. Whether the accident in question occurred on account of the rash and negligent driving of the vehicle bearing registration no. UP14DX6260 driven by respondent no.1 Himanshu Gupta?
(OPP)
3. Whether the injured/petitioner is entitled to compensation? If yes, to what amount and from whom? (OPP)
4. Relief.
EVIDENCE:
(6) In order to prove his case, the petitioner Raj Kumar has examined himself as his sole witness as PW1. In so far as the respondents are concerned, the respondent no.1 Himanshu Gupta had stopped appearing pursuant to which he was proceeded exparte by this Court/ Tribunal on 01.11.2022 whereas the respondent no.2 ICICI Lombard General Insurance Company Ltd. has not led any evidence and the Ld. Counsel has closed the evidence on behalf of the Insurance Company.
(7) For the sake of convenience, the testimony of the petitioner is put in tabulated form as under: Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 5 of 28 S. Witness Deposition No. 1 Raj Kumar PW1 Raj Kumar is the petitioner himself who in his (PW1) examinationinchief by way of affidavit Ex.PW1/A has corroborated what has been earlier stated by him in the claim petition. He has placed his reliance upon the following documents:
1. Photocopy of his Aadhaar Card which is Ex.PW1/B (OSR).
2. Photocopy of his PAN Card which is Ex.PW1/C (OSR).
3. Copy of salary slip for the month of October 2021 which is Ex.PW1/D
4. Medical treatment records which are Ex.PW1/E1 to Ex.PW1/E3 (total 3 pages)
5. Medical bills are Ex.PW1/F1 to Ex.PW1/F 11
6. Estimate for future treatment which is Ex.PW1/G. In his crossexamination by the Ld. Counsel for the respondent no. 2, the witness has deposed as under: That during the period of his treatment he was getting his salary from 25.11.2021 to 13.08.2022 and has voluntarily explained that from 25.11.2021 to 06.12.2021, he was on leave and during that period he did not receive salary.
That he has not filed any document to show that he has not received salary during the period 25.11.2021 to 06.12.2021.
That he was receiving salary of Rs.66,335/ per month as reflected in the salary slip Ex.PW1/D. That he was getting salary directly in his account.
That he is receiving salary from M/s Bharat Certis Agriscience Limited from the year 2005.
That during the period of leave i.e. from 25.11.2021 to 06.12.2021, he had received salary and nothing was deducted.
That he has reimbursement of the bills from Health Insurance.
Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 6 of 28 That he has not placed on record any document relating to the reimbursement of bill amount from Health Insurance and has voluntarily explained that he had mentioned this fact in his affidavit and attached the final bill summary Ex.PW1/RX1 (three pages) from Shree Aggarsain International Hospital which summary bill shows that a payment of Rs.1,29,346/ was approved from Vipul Medcorp TPA Caps Pvt. Ltd. and the remaining amount of Rs.3,709/ was paid by him.
That he has not placed on record any documents relating to the payment of conveyance charges and charges towards special diet.
That he has not placed on record any document or details relating to hiring of an attendant and the salary paid to the attendant.
That it is wrong that he has not incurred any expenses towards special diet, conveyance and attendant.
That the document i.e. estimate Ex.PW1/G is only in the nature of an estimate and not actual bill for removal of rod.
That till date he has not obtained any advice from the doctor regarding removal of rod from his left knee. [Note: This is despite the fact that he has placed on record an estimate from a private hospital Ex.PW1/G which has not been proved].
That it is wrong that he has not seen the driver nor he noted down the registration number of the offending vehicle.
That it is wrong that the details of the offending vehicle was inserted later and not given in the 100 number call or to the doctor in the hospital due to which reason the said details were not mentioned in the record prepared in the hospital.
That he had mentioned in his statement to the police which is Ex.PW1/RX2 that it was Rishikesh who was the pillion rider who had noted the registration number of the vehicle and identified the driver and has voluntarily Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 7 of 28 explained that he has also seen the number plate and the driver.
That when the police came to the spot, the offending vehicle and the driver were not present.
That the police had never called him for Test Identification Parade of the vehicle or the driver.
That in the General OPD Card Ex.PW1/E2 registration date mentioned is 29.07.2016 and is stated to be issued on 13.08.2022. That it is wrong the document Ex.PW1/E2 has been fabricated only for the purposes of using the same for extorting high compensation amount.
That it is wrong that Ex.PW1/E2 is a false and fake document.
In so far as the respondents are concerned, the respondent no.1 Himanshu Gupta had stopped appearing and was proceeded exparte. He has not examined any witness to prove his defence. The respondent no.2 Insurance Company did not examine any witness despite opportunity.
FINDINGS & OBSERVATIONS:
(8) I have perused the record placed before me and considered the submissions made before me. I have also considered the written memorandum of arguments filed on behalf of the parties. My findings on the various issues are as under:
Issue No.1: Whether the petitioner/injured namely Raj Kumar had sustained Grievous injury in the road traffic accident which had taken place on 25.11.2021 at about 8:10 PM at G. L. Sikka Marg, near Sidhartha Hotel, Rajindra Place, Delhi? (OPP) Issue No.2: Whether the accident in question occurred on account of the rash and negligent driving of the vehicle bearing registration no. UP14DX6260 driven by respondent no.1 Himanshu Gupta?
(OPP) Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 8 of 28 (9) Both the above issues are clubbed together for the sake of convenience involving common discussion. Onus of proving both the issues was upon the petitioner. The case of the petitioner Raj Kumar is that on 25.11.2021 at about 07:30 PM, he along with his Rishikesh Kumar were coming from office towards their home on a Scooty bearing no. DL9SBM9519 which was being driven by the petitioner whereas Rishikesh Kumar was the pillion rider. When they reached at G. L. Sikka Marg near main gate of Sidhartha Hotel, a Car bearing registration no. UP14DX6260 came from behind at a very high speed in the rash and negligent manner and hit the Scooty being driven by the petitioner. Due to the impact, both Raj Kumar and Rishikesh Kumar fell down. According to the petitioner Raj Kumar, he had suffered Grievous Injuries in the accident in question which had taken place on account of the rash and negligent driving of Car bearing No. UP14DX6260 by the respondent no.1 Himanshu Gupta.
(10) On the other hand, the case of the respondent no.1 Himanshu Gupta is that the accident had taken place on account of the rash and negligent driving of the Scooty driver who suddenly came in front of his car and applied sudden brakes due to which the scooty got slipped on the road in front of his car. (11) In order to prove his case the petitioner Raj Kumar has examined himself as his sole witness as PW1 whereas the respondent no.1 Himanshu Gupta has not examined any witness and rather stopped appearing pursuant to which he was proceeded exparte.
Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 9 of 28 (12) I have considered the rival contentions and perused the record including the DAR and the documents attached along with the same. I have also gone through the testimony of the petitioner. My findings are as under:
Identity of the respondent no.1 as Driver of the offending vehicle:
(13) Coming first to the identity of the respondent no.1 Himanshu Gupta as the Driver of the offending vehicle i.e. Car bearing No. UP14DX6260. I note that there is no dispute on the aspect of the respondent no.1 Himanshu Gupta being the driver of the above Car since in his written statement the respondent no.1 has duly admitted that he was driving the above car at the time of accident, though he has denied the rashness and negligence attributed to him. This being the background, I hold that the identity of the respondent no.1 Himanshu Gupta as driver of the offending vehicle i.e. Car bearing No. UP14 DX6260 stands established.
Rashness and Negligence attributed to the respondent no.1:
(14) Now coming to the aspect of rashness and negligence so attributed to the respondent no.1 Himanshu Gupta. According to the petitioner, the accident in question had taken place on account of the rash and negligent driving of the Car bearing No. UP14DX6260 by the respondent no.1 Himanshu Gupta. On the other hand, the case of the respondent no.1 is that the Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 10 of 28 accident had taken place on account of the rash and negligent driving of the Scooty by the petitioner himself. (15) I have considered the rival contentions and the testimony of the petitioner. It is a settled law that a claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case for purposes of conviction, the matter is to be proved beyond reasonable doubt whereas in a civil case the matter is to be decided on the basis of preponderance of evidence but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. In a criminal case the rashness and negligence against the accused has to be proved beyond reasonable doubt whereas in a civil case or MACT claim for grant of compensation the principle involved is preponderance of probabilities. It would be sufficient if the surrounding circumstances and the material on record establishes the allegations of rashness and negligence made against the driver of the offending vehicle. In a case where the Criminality is an issue, the principles applicable would be proof beyond reasonable doubt but being a Motor Accident Claim Tribunal, this Court/ Tribunal is required to determine the compensation on the basis of principle of preponderance of probabilities. (16) Further, I may observe that Contributory Negligence is a behaviour that contributes to one's own injury or loss and Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 11 of 28 fails to meet the standard of prudence that one should observe for one's own good. Contributory Negligence is when any person suffered damages as a result of his/ her own fault and also partly due to fault of the other side. It involves violation of duty, breach and causation and is complete defence while evaluating the extent of liability and compensation. (17) Now coming to the merits of the present case. I have gone through the documents placed on record. The various aspects as borne out from the record are detailed as under:
(18) Firstly, I note that a perusal of the chargesheet copy of which has been attached along with the DAR shows that on 25.11.2021 at 20:09:33 hours an information regarding accident was received at Police Station Patel Nagar which informed was recorded vide DD No.97A. Pursuant to the said information the Investigating Officer reached BLK Hospital where he found the injured Raj Kumar admitted. The injured Raj Kumar informed the Investigating Officer that he along with one Rishikesh Kumar were going towards their house on a Scooty which was driven by him and when they reached near main gate of Siddharth Hotel, suddenly a car bearing No. UP14DX6250 came from behind and hit the Scooty as a result of which they fell down and sustained injuries. It was on the basis of the statement of injured Raj Kumar that the FIR in the present case has been registered.
(19) Secondly, the petitioner Raj Kumar (PW1) has in his examination in chief by way of affidavit which is Ex.PW1/A has corroborated his first version given to the Investigating Agency. I may note that the entire version of the petitioner in this regard Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 12 of 28 has gone unrebutted since the respondent no.1 had stopped appearing and did not crossexamine the petitioner. (20) Thirdly, the Site Plan of the spot of accident which is a part of the DAR shows the spot of accident at Point A which is in front of Siddharth Hotel, Rajender Nagar. The above site plan shows that the accident had taken place on the right lane of G.L. Sikka Marg near the middle verge thereby confirming that the petitioner was driving his scooty on the correct lane of the road. The Site Plan confirms the version of the petitioner Raj Kumar with regard to the site of accident.
(21) Fourthly, I have gone through the Mechanical Inspection Reports of the Car bearing No. UP14DX6260 and the Scooty bearing No. DL9SBM9519 which are as under:
Car bearing No. UP14DX6260:
a. Front bumper repair and repainted.
Scooty bearing no. DL9SBM9519:
a. Rear body beading bended.
b. Reader side tail light glass broken.
(22) The above Mechanical Inspection Reports confirm the existence of damages on the rear portion of the Scooty thereby showing that the Scooty was hit from behind. Further, it is evident from the Mechanical Inspection Report of the Car that the damages to the front bumper were got repaired and repainted. The respondent no.1 Himanshu Gupta has not explained the presence of damages on his car which he later on got repaired. The Mechanical Inspection Report of the Car also Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 13 of 28 demolishes the case of the respondent no.1 to the effect that his car had slightly touched the Scooty. Had the car slightly touched the Scooty, I am sure there would not have been much damage on the bumper of the car which would require a repair/ repaint.
The rashness and negligence so attributed to the respondent no.1 Himanshu Gupta is writ large.
(23) Lastly, I note that there is no rebuttal to the case put forth by the petitioner and the entire evidence of the petitioner in this regard has gone unrebutted and uncontroverted. The respondent no.1 having alleged negligence on the part of the petitioner, it was necessary for the respondent no.1 to prove the same, which he has failed to do.
(24) This being the background, I hereby hold that the accident had taken place on account of the rash and negligent driving of the Car bearing registration No. UP14DX6260 by the respondent no.1 Himanshu Gupta.
Nature of Injuries suffered by the petitioner and Disability, if any:
(25) Now coming to the aspect of injuries caused to the Petitioner Raj Kumar and the Disability, if any, suffered by him. I have gone through the MLC of the petitioner Raj Kumar which forms a part of the DAR. A perusal of the MLC shows that the injured Raj Kumar was brought to BLKMAX Hospital, Rajender Nagar, New Delhi on 25.11.2021 at 7:50 PM with alleged history of Road Traffic Accident while riding on a two wheeler, hit by a car near Hotel Siddharth, Patel Nagar 1/2 Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 14 of 28 hours back. On local examination, there was tenderness and swelling on left upper leg. The medical documents including the Discharge Summary issued by Shree Aggarsain NorthEx welfare Society (Regd.) Sector22, Rohini, Delhi shows that the petitioner was diagnosed with Tibeal Plateau Fracture Left and remained admitted in the said hospital from 30.11.2021 to 06.12.2021. During the period of his hospitalization, ORIF with Raft Plates (Hipned and Lat) with Bone Grafting was done.
The injuries sustained by the petitioner have been opined to be Grievous in Nature to which there is no dispute. However, there is nothing on record to show that the petitioner had suffered any kind of disability on account of the injuries sustained by him.
(26) In view of my above discussion and by application of the principles of Preponderance of Probabilities coupled with the fact that the respondent no.1 Himanshu Gupta has been made an accused in FIR No. 635/2021, PS Patel Nagar under Sections 279/338 IPC, I hereby hold that Raj Kumar had suffered Grievous Injuries in a Road Traffic Accident which took place on 25.11.2021 at about 7:30 PM at G. L. Sikka Marg, near Sidhartha Hotel, Rajendra Place, Delhi on account of the rash and negligent driving of Car bearing registration no. UP14DX6260 driven by respondent no.1 Himanshu Gupta.
(27) Both the issues are accordingly decided in favour of the petitioner and against the respondents.
Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 15 of 28 Issue No.2: Whether the injured/petitioner is entitled to compensation? If yes, to what amount and from whom? (OPP) (28) Onus of proving the above issue was upon the petitioner. The case of the petitioner is that at the time of accident he was working as an Assistant Manager in Bharat Certis Agriscience Ltd. and was earning Rs.70,000/ per month and on account of the injuries he could not continue his work for three months. According to the petitioner, a sum of Rs.1,50,000/ was spent on his medical treatment; Rs.40,000/ on Conveyance and Rs.40,000/ on special diet. In total the petitioner is claiming a total compensation to the tune of Rs.5,52,635/. (29) In so far the respondent no.2 Insurance Company is concerned they have filed a Legal Offer to the tune of Rs.50,000/ which the petitioner has refused to accept. (30) I have considered the arguments made before me and the documents on record. Coming first to the medical expenses incurred by the petitioner, I may observe that in his examination in chief the petitioner/ injured Raj Kumar claims that he had incurred Rs.1,50,000/ on his medical treatment and has placed his reliance on the medical bills which are Ex.PW1/F1 to F11 details of which medical bills are as under:
S. Details of Bill Date Exhibit No. Amount No. in Rs.
1. Tax Invoice issued by Junction 20.02.2020 Ex.PW1/F1 286/ Medicos, Pooth Kalan, Delhi
2. Tax Invoice issued by Junction 20.02.2020 Ex.PW1/F2 920/ Medicos, Pooth Kalan, Delhi Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 16 of 28
3. Tax Invoice issued by Junction 13.02.2020 Ex.PW1/F3 529/ Medicos, Pooth Kalan, Delhi
4. Tax Invoice issued by Junction 11.01.2022 Ex.PW1/F4 200/ Medicos, Pooth Kalan, Delhi
5. Bill issued by Ortho Junction, 13.02.2020 Ex.PW1/F5 500/ Pooth Kalan, Delhi (Consultation)
6. Bill issued by Ortho Junction, 13.02.2020 Ex.PW1/F6 500/ Pooth Kalan, Delhi (XRay)
7. GST Invoice issued by Yadav 26.11.2021 Ex.PW1/F7 240/ Medicos, Nangloi, Delhi
8. Bill of supply issued by Sri 13.08.2020 Ex.PW1/F8 570/ Balaji Action Medical Institute, Paschim Vihar, Delhi
9. Bill issued by Ortho Junction, 13.03.2022 Ex.PW1/F9 500/ Pooth Kalan, Delhi (XRay)
10. Bill issued by Ortho Junction, 13.03.2022 Ex.PW1/F10 500/ Pooth Kalan, Delhi (Consultation)
11. Bill issued by Junction 13.03.2022 Ex.PW1/F11 3,967/ Medicos, Pooth Kalan, Delhi Total 8,712/ (31) I have gone through the above bills. I may note that this Court/ Tribunal has already observed that the injuries suffered by the petitioner Raj Kumar are Grievous in Nature.
There is no dispute with regard to the above bills which are original nor any evidence to the contrary has come on record. Further, it is evident from the Final Bill Summary issued by Shree Aggarsain North Ex. Welfare Society (Regd.) which is Ex.PW1/RX1 that a final bill of Rs.1,38,135.79p was raised out of which a sum of Rs.1,34,427/ was paid by the Vipul Medcorp Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 17 of 28 Insurance TPA Pvt. Ltd. and the remaining amount of Rs.3,709/ was paid by the petitioner/ injured. In so far as the other bills placed on record by the petitioner along with the claim petition are concerned, they are only photocopies and the petitioner has not placed on record the originals of the same nor proved the same in accordance with law. The total of both the amounts comes to Rs.12,421/ (i.e. 8,712 + 3,709). However, since the respondent no.2 in its written memorandum of arguments has given Rs.30,000/ towards medical expenses, I therefore hold that the petitioner shall be entitled to compensation to the tune of Rs.30,000/ towards medical expenses. (32) In so far as the expenses towards Special Diet are concerned, the petitioner claims that he had spent a sum of Rs.40,000/ towards Special Diet. In this regard, I note that the petitioner has not placed on record any document or bill to show that he had incurred any amount towards Special Diet. In fact, the Discharge Summary and medical documents of the petitioner does not show that any special diet was advised by the doctors concerned. However, a notional sum of Rs.10,000/ is being awarded towards Special Diet.
(33) Now coming to the aspect of Conveyance, the petitioner claimed that he had spent a sum of Rs.40,000/. Again, the petitioner has not placed on record any document in the form of bill issued by the Transporters to show that he had incurred any amount towards Conveyance. However, keeping in view the nature of injuries suffered by the petitioner, a notional sum of Rs.10,000/ is being awarded towards Conveyance. Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 18 of 28 (34) In so far as the Nursing/ Attendant Charges are concerned, I note that in his affidavit of evidence the petitioner Raj Kumar has not claimed that he had availed the services of an Attendant. Therefore, the petitioner shall not be entitled to any amount towards Nursing/ Attendant Charges. (35) Now coming to the aspect of loss of income, I have gone through the Salary Slip of the petitioner for the month of October 2021 which is Ex.PW1/D and it is evident from the same that the petitioner Raj Kumar was working as Assistant MnagerAccounts in Bharat Certis Agriscience Limited, Rajender Place, New Delhi and was getting a salary of Rs.66,335/ per month which fact is also evident from his Statement of Account. However, I note that in his cross examination the petitioner has specifically admitted that during the period of leave i.e. from 25.11.2021 to 06.12.2021 he had received his salary and nothing was deducted. Therefore, the petitioner having received his full salary, there is no loss of income to the petitioner. This being the background, I hold that the petitioner shall not be entitled to any amount towards loss of income.
(36) Now coming to the aspect of Future Treatment. The petitioner has placed on record an Estimate issued by Dr. Sanjay Bobal at Ortho Junction, Pooth Kalan, Delhi which is Ex.PW1/G to show that a sum of Rs.85,000/ would incur for removal of implants. I have gone through the said Estimate and I may note that the evidence on record shows that the petitioner has been availing the facility of Health Insurance pursuant to which the Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 19 of 28 major amount of his treatment was borne by the Insurance Company. Therefore, the expenses relating to future treatment can also be reimbursed from the Insurance Company/ TPA. However, in the interest of justice and keeping in view the nature of injuries suffered by the petitioner, a sum of Rs.35,000/ is being awarded to the petitioner towards future treatment. (37) Accordingly, keeping in view the facts and circumstances, the material on record, and the settled principles and guidelines governing the injury cases like the present one, the compensation is being derived in the present case as under:
NAME OF HEAD AMOUNT (in Rupees) Expenditure on Treatment 30,000/ Expenditure on Special Diet 10,000/ Expenditure on Conveyance 10,000/ Future Treatment 35,000/
Mental & Physical Shock, Pain & 40,000/ Suffering Total 1,25,000/ (38) I may note that interest @ 9% per annum was awarded by the Hon'ble Apex Court in the case of Municipal Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy reported in 2012 ACJ 48 (SC). In the interest of justice, it is held that claimant shall be entitled to interest @ 6% per annum from the date of filing of DAR i.e. from 24.02.2022 till realization.
Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 20 of 28 Disbursement:
(39) The Financial Statement of the petitioner Raj Kumar was recorded by this Court/ Tribunal 07.12.2022 according to which his monthly family expenses are approximately Rs.65,000/ per month.
(40) After considering the financial statement of the petitioners, I hereby direct that on realization of the award amount, a sum of Rs.55,000/ along with entire interest amount be released to the claimant/ petitioner from his share and the balance amount of Rs.70,000/ (Rupees Seventy Thousand only) shall be put in 07 (Seven) monthly fixed deposits in his name in MACAD account of equal amount of Rs.10,000/ (Rupees Ten Thousand only) each for a period of 01 month to 07 months respectively, with cumulative interest, in terms of the directions contained in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank situated near his residence without the facility of cheque book and ATM card. It is clarified that the amount shall be released to him only on submitting the copy of passbook of such saving account in a bank near to his residence with endorsement of the bank that no cheque book facility and ATM card has been issued or if it has been issued the said ATM Card has been withdrawn and shall not be issued without the prior permission of this Tribunal.
Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 21 of 28 (41) In compliance of the directions given by Hon'ble High Court in FAO No. 842/2003 dated 08.01.2021, Summary of the Award in the prescribed FormatXVI is as under:
SUMMARY OF AWARD:
1. Date of Accident: 25.11.2021
2. Name of the Injured: Raj Kumar
3. Age of the Injured: 50 Years
4. Occupation of the Injured: Assistant Manager in Bharat Certis Agriscience Ltd., Rajendra Place, Delhi
5. Income of the Injured: Rs.66,335/
6. Nature of Injury: Grievous
7. Medical Treatment taken BLKMax Hospital, by the injured Rajendra Place, Delhi & Shree Aggarsen Hospital, Sector22, Rohini
8. Period of Hospitalization: 30.11.2021 till 06.12.2021
9. Whether any permanent Nil disability? If yes, give details:
10. COMPUTATION OF COMPENSATION Sr. Heads Awarded by the Claims No. Tribunal
11. Pecuniary Loss:
(i) Expenditure on Treatment 30,000/ Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 22 of 28
ii) Expenditure on Conveyance 10,000/ (no document) (Notional)
(iii) Expenditure on Special Diet 10,000/ (no document) (Notional)
(iv) Cost of Nursing/ attendant (no Nil document)
(v) Loss of earning capacity Nil
(vi) Loss of Income Nil
vii) Any other loss which may require any special treatment or Rs.35,000/ aid to the injured for the rest of (Future Treatment) his life
12. Non Pecuniary Loss
(i) Compensation for mental and 40,000/ physical shock (Notional)
(ii) Pain and Sufferings
(iii) Loss of amenities of life Nil
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil 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 of Nil
expectation of life span on
account of disability
Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 23 of 28
(iii) Percentage of loss of earning Nil capacity in relation to disability
(iv) Loss of future income - Nil (income x % earning capacity x Multiplier)
14. Total 1,25,000/
15. INTEREST AWARDED 6%
16. Interest amount upto the date of 6,475/ award (10 Month & 11 Days)
17. Total amount including Interest 1,31,475/
18. Award amount released As mentioned in para no. 40
19. Award amount kept in FDRs As mentioned in para no. 40
20. Mode of disbursement of the As mentioned in para award amount of the no. 40 claimant(s)
21. Next date for compliance of the 10.02.2023 award Liability:
(42) In so far as the liability to pay the award amount is concerned, it is evident from the record that the offending vehicle i.e. Car bearing No. UP14DX6260 was being driven by Himanshu Gupta (Respondent No.1) who is also the owner of the same and was duly insured with ICICI Lombard General Insurance Co. Ltd. (Respondent No.2), therefore, both the respondents shall be jointly and severally liable to pay compensation to the claimant. However, since the vehicle was Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 24 of 28 duly insured with respondent no.3 i.e. ICICI Lombard General Insurance Co. Ltd. as on the day of accident, it is respondent no.3 ICICI Lombard General Insurance Co. Ltd.
who is ultimately held liable to indemnify the insurance and to pay the compensation amount to the petitioner under the statutory liability.
(43) Issue No.3 is accordingly decided in favour of the petitioner and against the respondents.
RELIEF:
(44) Since the offending vehicle was insured with the respondent no.2 ICICI Lombard General Insurance Co. Ltd.
therefore, the respondent no.2 is directed to deposit a sum of Rs.1,25,000/ (Rupees One Lac Twenty Five Thousand only) along with interest @ 6% from the date of filing of DAR i.e. 24.02.2022 with the Civil Nazir of this Tribunal within 30 days under intimation to the claimant failing which insurance company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
(45) A copy of this judgment be sent to the respondent No.2 i.e. ICICI Lombard General Insurance Co. Ltd. for compliance within the time granted. Respondent No.3 ICICI Lombard General Insurance Co. Ltd. is further directed to give intimation of deposit of the compensation amount to the claimant and shall file a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 25 of 28 within 15 days of the deposit with a copy to the Claimant and his counsel namely Sh. S.K. Singh Advocate, Chamber No. 164 165, Western Wing, Tis Hazari Courts, Delhi (Mobile No. 9818334707).
(46) Civil Nazir is directed to place a report on record on 10.02.2023 in the event of nonreceipt/deposit of the compensation amount within the time granted.
(47) Copy of the award be also sent to the court of concerned Metropolitan Magistrate and Delhi State Legal Services Authority (DSLSA).
(48) File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU) Dated: 05.01.2023 PO, MACT01, Central District, Tis Hazari Courts, Delhi Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 26 of 28 FORM - XVII COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE MENTIONED IN THE AWARD 1 Date of Accident 25.11.2021 2 Date of filing of FormI - First 26.11.2021 Accident Report (FAR) 3 Date of delivery of FormII to 27.11.2021 the victim(s) 4 Date of receipt of FormIII 05.01.2022 from the Driver 5 Date of receipt of FormIV from 05.01.2022 the Owner 6 Date of filing of the FormV -
13.01.2022 Interim Accident Report (IAR) 7 Date of receipt of FormVIA Not provided by the Investigating and Form VIB from the Officer Victim(s) 8 Date of filing of FormVIII - 24.02.2022 Detail Accident Report (DAR) 9 Whether there was any delay or deficiency on the part of the Investigating Officer? If so, No whether any action/direction warranted?
10 Date of appointment of the Designated Officer by the Not provided by the Insurance Insurance Company Company 11 Whether the Designated Officer of the Insurance Company Yes admitted his report within 30 days of the DAR?
12 Whether there was any delay or deficiency on the part of the No Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 27 of 28 13 Date of response of the claimant(s) to the offer of the 21.07.2022 Insurance Company.
14 Date of award 05.01.2023 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 24.02.2022 open Savings Bank Account(s) near his place of residence and produce PAN card and Aadhaar Card and the direction to the bank not to 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 07.12.2022 savings bank account(s) near the PAN Card No. of the claimant is place of their residence AGKPK9290L alongwith the endorsement, PAN card and Aadhaar Card?
18 Permanent residential address of As per Award the claimant(s).
19 Whether the claimant(s) savings bank account(s) is near their Yes place of residence?
20 Whether the Claimant(s) were Yes. The Financial Statement of examined at the time of passing the claimant was recorded on of the Award to ascertain 07.12.2022 his/their financial condition?
(Dr. KAMINI LAU) PO, MACT01 (Central), Tis Hazari Courts, Delhi/ 05.01.2023 Raj Kumar Vs. Himanshu Gupta & Anr. MACT No. 225/2022 Award dated 05.01.2023 Page No. 28 of 28