Delhi District Court
Naresh Kumar vs . Rachit Sehrawat on 17 April, 2018
Naresh Kumar vs. Rachit Sehrawat
Harish Kumar vs. Rachit Sehrawat
IN THE COURT OF SHRI SAMEER BAJPAI : PRESIDING OFFICER :
MACT : SOUTH DISTT. : SAKET COURTS : NEW DELHI
Suit No. : 75981/16
1. Naresh Kumar @ Naresh Chander
S/o Late Hukam Singh
R/o H. No. 471, Dichaon Kala,
Najafgarh, New Delhi - 110 043 (Injured)
2. Harish Kumar
S/o Sh. Chandagi Ram
R/o Vill. Sabhapur, P.O. Bhushan Kalan,
Tehsil Narnaul, Distt. Mahendergarh,
Haryana (Injured)
...... Petitioners
Versus
1. Rachit Sehrawat
S/o Sh. S R Singh
R/o Flat No. 3225, SectorA,
Pocket B & C, Vasant Kunj,
New Delhi (Driver)
2. S R Singh
S/o Sh. Raghubir Singh
R/o Flat No. 3225, SectorA,
Pocket B & C, Vasant Kunj,
New Delhi (Owner)
3 United India Insurance Co. Ltd.
New Delhi (Insurer)
......Respondents
Suit No. : 75981/16 Page No. 1 of 17
Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat Date of Institution : 03.09.2016 Date of reserving of judgment/order : 06.04.2018 Date of pronouncement : 17.04.2018 J U D G M E N T :
1. By this order I shall dispose of the Detailed Accident Report (DAR) filed by SHO police station Fatehpur Beri for the injuries sustained by Naresh Kumar and Harish Kumar in a road accident on 09.05.2016 at about 1.00 AM at M.G. Road, Aya Nagar Border police picket, New Delhi due to rash and negligent driving of vehicle bearing no. DL 3C BK 0356 by Rachit Sehrawat, owned by S R Singh and insured with United India Insurance Company Limited.
2. In their written statement, respondents no.1 and 2 have stated that the present case is false and frivolous one and no cause of action has ever arisen. They further stated that the respondent no.1 was having a valid driving licence at the time of accident and the alleged offending vehicle at the time of accident was duly insured with respondent no.3.
3. Respondent no. 3 in its written statement has stated that the driving licence and R.C. of the vehicle were found to be valid. The alleged offending vehicle at the time of accident was insured with it vide policy no. 0401003116P10164703 for the period from 07.05.16 to 06.05.17.Suit No. : 75981/16 Page No. 2 of 17
Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat
4. From the pleadings of the parties, following issues were framed vide order dated 21.12.2016 :
1. Whether Naresh Kumar and Harish Kumar sustained injuries in a road accident on 09.05.2016 at about 1.00 AM at M.G. Road, Aya Nagar border police picket, New Delhi due to rash and negligent driving of vehicle bearing no. DL 3C BK 0356 by Rachit Sehrawat, owned by S R Singh and insured with United India Insurance Co. Ltd.?
2. To what amount of compensation, the injured/petitioners are entitled and from whom?
3. Relief.
5. Injured Naresh Kumar examined himself as PW1. He tendered in evidence his affidavit Ex.PW1/A and relied upon the documents Ex.PW1/1 to Ex.PW1/5 (colly.) and MarkA.
6. Injured Harish examined himself as PW1. He tendered in evidence his affidavit Ex.PW1/A/C and relied upon the documents Ex.PW1/A to Ex.PW1/C.
7. Respondents did not examine any witness.
8. I have heard arguments and perused the record. My issuewise finding is as under :
I S S U E No. 19. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and Suit No. : 75981/16 Page No. 3 of 17 Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat negligent driving by the driver. In a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. Though it is an admitted legal position that the negligence on part of the driver with respect to the use of vehicle needs to be established but the same is to be established on the principles of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III(2015) ACC 435 Delhi.
PW1 Naresh Kumar has stated that on the unfortunate day of 09.05.2016 at about 1.00 AM he was standing at M.G. Road, Aya Nagar border, Police Picket, while he was on duty. In the meantime, a car bearing no. DL 3C BK 0356 being driven by respondent no.1 in a rash and negligent manner came from Delhi to Gurgaon side and hit him as well as Ct. Harish. Due to the impact they sustained injuries and were taken to JPN Apex Trauma Center.
PW1 Harish Kumar has stated that the petitioner was working with Delhi Police as Constable and posted at police station Fatehpur Beri. He further stated that on the intervening night of 08/09.05.2016 he was on picket duty at Aya Nagar Border, M.G. Road from Delhi to Gurgaon from 8.00 PM to 8.00 AM. Naresh Kumar and HC Om Prakash were also on duty alongwith him. During the duty they were conducting the checking of vehicles with the help of torch and blinkers by putting barricades. At about 1.00 AM in the night, when Ct. Naresh was standing at some distance of barricade, whereas he was standing Suit No. : 75981/16 Page No. 4 of 17 Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat near barricade and HC Om Prakash was standing behind the barricade, one red colour Tata Indigo Manza car bearing no. DL 3C BK 0356 came from Delhi side at a high speed being driven by respondent no.1 in a rash and negligent manner and first hit one Maruti car bearing no. UP 16 AY 9424 before some distance of barricade at the corner from back side and after hitting, the said Tata Indigo car hit the barricade and thereafter hit him, Ct. Naresh Kumar and thereafter hit one grey colour Hyundai i20 car bearing no. HR 51 AX 8796 parked on the side of the road. Due to the impact they sustained injuries. They were taken to AIIMS Trauma Centre where their MLCs were prepared. He further stated that the accident took place due to rash and negligent driving by the respondent no.1.
During crossexamination of both the petitioners Naresh Kumar and Harish Kumar no question has been put by the counsel for insurance company qua the manner of accident and the aspect of rash and negligent driving by the respondent no.1.
In the present case the I.O alongwith the DAR has filed FIR, charge sheet, site plan, MLC etc. Perusal of FIR shows that the case was registered on the statement of injured Naresh Kumar.
According to the testimony of both the injured persons, at the time of accident the police put a barricade on the road for the purpose of checking the vehicles and the respondent no.1 was supposed to slow down his vehicle and be more cautious before the barricading but he did not do so and kept on driving his vehicle rashly and for this reason only the accident happened. Further, the rashness of respondent no.1 is clearly apparent from the fact he did not hit the Suit No. : 75981/16 Page No. 5 of 17 Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat injured persons but also hit other two vehicles. It is therefore, clear that the accident happened due to rash and negligent driving of the respondent no.1.
Therefore, this issue is decided in favour of the petitioners and against the respondents.
I S S U E No. 2Injury case of Naresh Kumar
10. Medical Bills : The petitioner has not filed on record any medical bills.
During crossexamination he stated that he is a member of CGHS. He has no medical bills. Therefore, no amount is awarded to the petitioner towards medical expenses.
11. Pain & Sufferings and Enjoyment of life : As per discharge summary Ex.PW1/4 (colly.) the petitioner was diagnosed with soft tissue injury. His Nasal Bone was fractured. As per MLC Ex.PW1/3 his injuries were grievous in nature. During crossexamination he stated that he was discharged on the same day. Looking into the injuries and the treatment of the petitioner, I award him Rs. 35,000/ towards pain and sufferings and enjoyment of life.
12. Special Diet, Conveyance & Attendant charges : The petitioner has not filed on record any bill pertaining to special diet, conveyance and attendant charges. However, looking into the injuries of the petitioner I award Rs. 15,000/ to the petitioner towards special diet, conveyance and attendant charges.
Suit No. : 75981/16 Page No. 6 of 17Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat
13. Loss of Leaves : The petitioner has stated that at the time of accident he was 47 years of age. He was working as Constable with Delhi Police. Petitioner Naresh Kumar has filed on record an arrival report which shows that he remained on medical leave for one month. This Tribunal is of the view that since the petitioner was working in Delhi Police, no monetary loss has been caused to him. However, due to the injuries sustained in the accident, he was forced to go on leave, which he would avail for any other illness. So, looking all the facts and the monthly salary, I award a lumpsum amount of Rs. 30,000/ to the petitioner towards loss of leaves.
14. Thus, the total compensation awarded in favour of the petitioner is assessed as under :
MEDICAL EXPENSES : NIL
PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 35,000/
SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 15,000/
LOSS OF LEAVES : Rs. 30,000/
==========
: Rs. 80,000/
==========
Injury case of Harish Kumar
15. Medical Bills : The petitioner has not filed on record any medical bills.
During crossexamination he stated that the entire medical bills have been refunded to him by his department. Therefore, no amount is awarded to the petitioner under this head.
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16. Pain & Sufferings and Enjoyment of life : As per discharge summary of AIIMS Trauma Centre the petitioner was diagnosed with fracture both bone right leg. He was again hospitalised in Park hospital from 23.06.2016 to 28.06.2016, 10.07.2016 to 18.07.2016, 20.09.2016 to 24.09.2016 and 12.11.2016 to 17.11.2016. ORIF with nailing was done. Having regard to the injuries and treatment of the petitioner, I award him Rs. 50,000/ towards pain and sufferings and enjoyment of life.
17. Special Diet, Conveyance & Attendant charges : The petitioner has not filed on record any bill pertaining to special diet and attendant charges. The injuries on the person of petitioner were such that he must have been advised special diet. He must have taken help of an attendant for his daily routine works. Therefore, I award Rs. 10,000/ to the petitioner towards special diet and Rs. 12,000/ towards attendant charges. The petitioner has placed on record conveyance bills of Rs. 85,500/ but there are major discrepancies in the bills of the petitioner. The petitioner has given some bills mentioning that he picked the taxi from Delhi to Narnaul or Narnaul to Delhi and on some bills it has been mentioned that the taxi was for pick up and drop at Narnaul. First, it is to be noticed that the place of taxi stand is at Sukhdev Vihar whereas Narnaul i.e. the place of residence of the injured is in Distt. Mahendergarh, whereas he took treatment either at AIIMS, Delhi or in Park Hospital, Gurgaon. As such there was no logic to hire a taxi from Sukhdev Vihar which is a place around 150 kms. from the place of residence of the petitioner. Even if the petitioner Suit No. : 75981/16 Page No. 8 of 17 Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat hired the taxis in such manner, it was highly unreasonable and cannot be permitted. Further, for some days the petitioner was not treated in the hospital and for those days also he has raised taxi bills. Considering these facts, to my mind, the claim of Rs. 85,500/ is exorbitant. I therefore, award Rs. 20,000/ to the petitioner towards conveyance charges. So, the total award under this head comes to Rs. 42,000/.
18. Loss of Leaves : The petitioner has stated that at the time of accident he was working as Constable with Delhi Police. He further stated that he was getting salary of Rs. 42,000/ p.m. Due to the injuries he remained on leave for a long time. The petitioner has filed on record his leave record, as per which he remained on leave for a period of 351 days which include Medical Leaves, Earned Leaves and Extra ordinary leaves. As per the salary record his salary in the month of May, 2016 was Rs. 34,063/ which includes Rs. 3,600/ as T.A. and Rs. 90/ as conveyance and these amounts need to be deducted from the monthly salary. After deducting T.A. and conveyance the monthly salary of the petitioner comes to Rs. 30,373/. Since, the petitioner has remained on leaves for a total period of 351 days, the loss of leaves comes to Rs. 3,55,364/ (Rs. 30,373 / 30 x 351 days) which is rounded off to Rs. 3,55,400/. I therefore, award Rs. 3,55,400/ to the petitioner towards loss of leaves.
19. Thus, the total compensation awarded in favour of the petitioner is assessed as under :
Suit No. : 75981/16 Page No. 9 of 17Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat MEDICAL EXPENSES : Nil PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 50,000/ SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 42,000/ LOSS OF INCOME : Rs. 3,55,400/ ============ : Rs. 4,47,400/ ============ L I A B I L I T Y
20. As the offending vehicle was being driven by respondent no. 1, primary liability to compensate the petitioners is of respondent no. 1. Since the vehicle was owned by respondent no.2, he is vicariously liable to compensate the petitioners. It is an admitted position on record that the vehicle was insured with respondent no.3, so it is contractually liable to compensate the petitioners.
21. Issue No. 2 is decided accordingly in favour of the petitioners and against the respondent no.3.
R E L I E F
22. In view of my findings, I award Rs. 80,000/ (Rs. Eighty Thousand only) to the petitioner Naresh Kumar and Rs. 4,47,400/ (Rs. Four Lakh Forty Seven Thousand Four Hundred only) to the petitioner Harish Kumar as compensation alongwith interest @ 9% per annum from the date of filing the DAR till its realisation.
Petitioners have been examined by the Tribunal in terms of order dated 16.12.16 passed by the Hon'ble High Court in FAO Suit No. : 75981/16 Page No. 10 of 17 Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat 842/2003 titled as Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors.
They stated that if the award is passed in their favour, entire amount may be released to them.
Out of the awarded amount in favour of injured Harish Kumar an amount of Rs. 47,400/ plus interest is directed to be released to him. Remaining amount of Rs. 4,00,000/ is directed to be kept in the form of fixed deposit in the following phased manner :
1. Rs. 1,00,000/ for a period of 1 year.
2. Rs. 1,00,000/ for a period of 2 years.
3. Rs. 1,00,000/ for a period of 3 years.
4. Rs. 1,00,000/ for a period of 4 years.
23. Following the directions of Hon'ble High Court in order dated 15.12.2017 the injured were asked to bring their passbooks of the bank account nearest to their place of residence and appropriate endorsements were made on the passbook of the injured persons. After getting the endorsement done both the injured produced the passbook before the Tribunal. According to the endorsement, the bank would not issue ATM card and cheque book to the injured. The injured were also directed to withdraw the amount as credited by the SBI, Saket Courts branch in their personal account through withdrawal form only.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
24. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number Suit No. : 75981/16 Page No. 11 of 17 Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
25. As per orders of Hon'ble High Court in case titled "New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as "Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimant.
26. 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, respondents are directed to deposit the awarded amount in favour of the petitioner with State Bank of India, Saket Courts Complex Branch, against account of petitioners.
within a period of 30 days from today, failing which respondent no.3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
27. 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.
Suit No. : 75981/16 Page No. 12 of 17Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat
2. No cheque book be issued to petitioner/claimant without the permission of this Court.
3. 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 .
4. The original fixed deposit receipts shall be handed over to petitioner/claimant at the end of the fixed deposit period.
5. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
6. Half yearly statement of account be filed by the Bank in this Court.
7. On the request of petitioner/claimant, the Bank shall transfer the amount to the bank in which the petitioner has his personal accunt and given the details thereof to the Tribunal and Manager, SBI Saket Court branch.
8. 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.
9. The bank is also directed to get the nomination form filled by the claimant at the time of preparation of FDRs.
10. 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.
11. The Manager of SBI, Saket Court branch is directed not to release more than 10% of the award amount as and when required by the petitioners. It is clarified that the maturity amount of FDRs shall be credited to the personal account of the petitioners, the details of which have been given by him to Suit No. : 75981/16 Page No. 13 of 17 Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat the Tribunal. The petitioners shall produce the same details / passbook of their banks to the Manager, SBI Saket Court branch. The amount shall be credited to the personal account of the petitioners in their personal savings bank accounts through RTGS or any other appropriate electronic mode.
DIRECTIONS FOR RESPONDENT NO. 328. Respondent no.3 is directed to deposit the awarded amount in favour of the petitioners directly in the State Bank of India, Saket Courts branch within a period of 30 days from today, failing which the respondent no.3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
29. Respondent no.3 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.
30. Respondent no.3 shall intimate the claimants/petitioners about its having deposited the cheque in favor of the claimants in terms of the award, at the address of the claimants mentioned at the title of the award, so as to facilitate them to withdraw the same.
31. Copy of this Award / Judgment be given to the parties for necessary compliance.
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32. The case is now fixed for compliance by the respondent no.3/insurance company for 17.05.2018.
33. FormIV of the Modified Claims Tribunal Agreed Procedure to be mentioned in the Award is as under :
1 Date of the accident 09.05.2016 2 Date of intimation of the accident by the 03.09.2016.
Investigating Officer to the Claims Tribunal 3 Date of intimation of the accident by the Not available Investigating Officer to the insurance company 4 Date of filing of Report u/s 173 Cr.P.C. Not available before the Metropolitan Magistrate 5 Date of filing the Detailed Accident Report 03.09.2016 (DAR) by the Investigating Officer before Claims Tribunal 6 Date of service of DAR on the insurance 15.10.2016 company 7 Date of service of DAR on the claimant 15.10.2016 8 Whether DAR was complete in all Yes respect?
9 If not, state deficiencies in the DAR N.A. 10 Whether police has verified the documents Yes filed with DAR 11 Whether there was any delay or deficiency No on the part of the Investigating Officer? If so, whether any action/direction warranted?
12 Date of appointment of the Designated N.A. Officer by the insurance company.Suit No. : 75981/16 Page No. 15 of 17
Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat 13 Name, address and contact number of the N.A. designated officer of the insurance company.
14 Whether the designated officer of the No insurance company submitted his report within 30 days of the DAR?
15 Whether the insurance company admitted No the liability? If so, whether the designated officer of the insurance company fairly computed the compensation in accordance with law.
16 Whether there was any delay or deficiency No on the part of the designated officer of the insurance company? If so, whether any action/direction warranted 17 Date of response of the claimant(s) to the No offer was given by offer of the insurance company. the insurance company. 18 Date of the award 17.04.2018 19 Whether the award was passed with the No consent of the parties?
20 Whether the claimant(s) examined at the Petitioners were time of passing of the award to ascertain examined. Financial his/their financial condition? condition was asked from the petitioner.
21 Whether the photographs, specimen Yes signatures, proof of residence and particulars of bank account of the injured/legal heirs of the deceased taken at the time of passing of the award?
Suit No. : 75981/16 Page No. 16 of 17Naresh Kumar vs. Rachit Sehrawat Harish Kumar vs. Rachit Sehrawat 22 Mode of disbursement of the award Qua the injured Naresh amount to the claimant (s). Kumar entire amount is directed to be released.
Qua the injured Harish Kumar some amount is directed to be released and some amount is kept in the fixed deposit.
23 Next date for compliance of the award. 17.05.2018
Announced in the Open Court
on 17th day of April, 2018 (SAMEER BAJPAI)
Presiding Officer : MACT (S)
Saket Courts New Delhi
Suit No. : 75981/16 Page No. 17 of 17