Delhi District Court
D.S.Baba vs . Sanjay Kumar Sahu & Ors. on 14 December, 2018
D.S.Baba vs. Sanjay Kumar Sahu & ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
JUDGE, MACT-1 (CENTRAL), THC, DELHI.
MACT No. 701/2017
Unique Case ID No. DLCT01-00959-2017
Sh. D. S. Bawa
Through
Sh. Harpreet Singh Bawa, Advocate
R/o H. No. 54, Judges Society,
P-7/7, Builders' Area,
Opposite Greater Valley School
Greater Noida-201310.
.......Petitioner
VERSUS
1. Sh. Sanjay Kumar Sahu
S/o Sh. S.N.Sahu
63, Leader Road, Allahabad
Uttar Pradesh.
...........Respondent No.1
(Owner )
2. M/s United Facilities 2363/2, First Floor Main Road, West Patel Nagar, New Delhi-110008.
...........Respondent No.2 (Owner)
3. The Oriental Insurance Company Ltd.
K-37, Connought Circus New Delhi-110001.
...........Respondent No.3 (Insurer) MACT No. 701/2017 Page No. 1 of 18 D.S.Baba vs. Sanjay Kumar Sahu & ors.
Date of filing of Claim Petition : 04.07.2017
Arguments heard on : 30.11.2018
Date of passing of Award : 14.12.2018
Present: Sh. Harpreet Singh, Advocate/counsel
for petitioner
Respondent No.1 & 2 are ex-parate
Sh. Ravi Satija, Advocate, counsel
for respondent no. 3
AWARD:
1. Present claim suit has been preferred under Section 166 & 140 of the Motor Vehicle Act, 1988 (in short MV Act) claiming a compensation of ` 91,196/- in respect of damage caused to the car of the claimant in a motor vehicular accident that had taken place on 30.12.2016 within the jurisdiction of PS Greater Noida Express Way, U.P.
(i) Though the accident had not taken place within the jurisdiction of this Tribunal, yet claim suit has been filed before this Tribunal as respondent no. 2 & 3 are working for gain in Delhi.
2. Facts in brief as emerged from the claim petition are that on 30.12.2016 at about 5:30 PM, petitioner alongwith his family members was returning to Greater Noida in their car bearing registration No. UP-16-BB-1458 and when MACT No. 701/2017 Page No. 2 of 18 D.S.Baba vs. Sanjay Kumar Sahu & ors.
they reached Noida Express Highway, offending bus bearing registration No. DL-1PD-2118 came at fast speed in a rash and negligent manner and hit their car. Consequently, car was badly damaged from behind. It was alleged that after causing the accident, bus fled away from the spot.
(i) Though petitioner informed the police about the accident, but police did not take any action against the offending bus.
(ii) It was alleged that at the time of accident offending vehicle was being driven by respondent no.1 and it was registered in the name of respondent no. 2 and insured with the respondent no. 3.
3. Claim suit was contested by respondent no.2 & 3 by filing their separate written statement.
(i) Respondent no. 2 in its written statement took a plea that at the time of accident, bus was being driven by respondent no.1 and on the day of accident, since the bus was duly insured with respondent no.3, liability if any, respondent no.3 is liable to indemnify the same.
(ii) Respondent No.3 admitted that the bus was duly insured with it, but took a plea that if any accident had taken place, same had been taken place due to the rash and negligent driving of car driver and since there was no rashness MACT No. 701/2017 Page No. 3 of 18 D.S.Baba vs. Sanjay Kumar Sahu & ors.
or negligence on the part of bus driver, respondent no.2 is not liable to pay any compensation. It was further submitted that the amount claimed by the petitioner is highly excessive and exhorbitant. It was further submitted that claimant can claim compensation only from one insurance company and not from both the insurance companies and since the claimant had already claimed the amount from his insurance company, claim petition is not maintainable.
(iii) Respondent no. 1 preferred not to contest the claim petition, accordingly, he was proceeded ex-parate vide order dated 23.11.2017. Respondent no.2 was also proceeded ex-parate on 23.11.2017.
4. On the basis of pleadings of both the parties, vide order dated 24.07.2018, following issues were framed:-
(i) Whether the car of the petitioner bearing no. UP-16-BB-1458 was damaged in road traffic accident which took place on 30.12.2016 within the jurisdiction of PS Express Highway, Noida, UP due to rash and negligent driving of the bus bearing registration No. DL-1-PD-2118 by Respondent No.1?
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
MACT No. 701/2017 Page No. 4 of 18D.S.Baba vs. Sanjay Kumar Sahu & ors.
(iii) Relief.
5. In order to prove his case, petitioner examined himself as PW1.
(i) In rebuttal, no evidence has been led by respondent no.3.
6. Counsel appearing for insurance company raised the following contentions:
(i) that there is no iota of evidence to establish that the accident was caused by the bus in question;
(ii) that since the petitioner had already received the claim qua the damage caused to the car from the insurance company of car, petitioner is not entitled for any relief under this petition;
(In support of said contention, reliance has been placed on the judgment New India Assurance Company Ltd. vs. J. L. Suri & ors., MAC. App. No. 854/2010 decided by High Court of Delhi on 16.10.2012)
(iii) that claimant is not entitled for any other amount except the actual amount spent MACT No. 701/2017 Page No. 5 of 18 D.S.Baba vs. Sanjay Kumar Sahu & ors.
on the damage of the car.
(To support this contention, reliance has been placed on the judgment National Insurance Company Ltd. vs. Rajesh Kumar & anr.
MAC. App. No. 416/2010 decided by High Court of Delhi on 12.07.2011)
7. The said contentions are refuted by the counsel for the petitioner by sagaciously arguing that there are ample evidence on record to show that the accident was caused by the bus in question and moreover, this fact is not refuted by respondent no.2 in its written statement. It was further submitted that in case Oriental Insurance Company vs. K. P. Kapur & ors.I (1997) ACC 138, Hon'ble High Court of Delhi held that in such cases, the claimant is entitled for compensation under Section 166 of the M. V. Act. It was argued that since the said judgment is in precedent, same cannot be overruled by the Coordinate Bench and in support of his plea, reliance has been placed on the judgment C. Ganga vs. Lakshmi Ammal & anr. (2008) CriLJ 3359.
8. I have heard rival submissions advanced by counsel for petitioner and respondent No.3, perused the record carefully and gave my thoughtful consideration to their contentions.
9. My issue-wise findings are as under:-
MACT No. 701/2017 Page No. 6 of 18D.S.Baba vs. Sanjay Kumar Sahu & ors.
Issue No. 1:
Whether the car of the petitioner bearing no. UP-16-BB-1458 was damaged in road traffic accident which took place on 30.12.2016 within the jurisdiction of PS Express Highway, Noida, UP due to rash and negligent driving of the bus bearing registration No. DL-1-PD-2118 by Respondent No.1?
FINDING:-
10. First question arises whether there is any admissible evidence to show that the accident in question was caused by the offending bus?
(i) Admittedly, in the present case, no FIR was got lodged by the petitioner. However, petitioner testified that he had made a call to the police informing that the offending bus had fled away from the spot after causing the accident. Ex. PW1/K is the reply received under RTI Act from the office of Sr. Police Superintendent, Gautam Budh Nagar, Noida. As per Ex. PW1/K, an intimation was received at the police control room on 30.12.2016 at about 17:04 hours that bus bearing registration No. DL-1PD-2118 fled away after hitting the car. Accordingly, intimation was flashed to the PCR 69 & 56 directing that offending bus should not escape from their jurisdiction. Ex. PW1/K corroborates the deposition of PW1 MACT No. 701/2017 Page No. 7 of 18 D.S.Baba vs. Sanjay Kumar Sahu & ors.
that after the accident, he had informed the police at 100 number. Mere fact that police did not register the FIR does not disprove the petitioner's version.
(ii) Further, respondent no.2 filed the reply to the claim petition wherein he stated that at the time of accident, the bus was being driven by respondent no.1 and further took the plea that since at the time of accident, bus was duly insured, liability if any, insurance company is liable to indemnify the same. This clearly shows that even respondent no.2 has not disputed the occurrence of the accident.
(iii) Further, during inquiry, respondent no.3 did not lead any contrary evidence to the above. In the absence of any cogent contrary evidence, there is no reason to disbelieve the petitioner's version.
(iv) From the deposition of PW1, it is established that the bus came from behind and hit in his car. Since the bus came from behind, bus driver was in a position to see the movement of car, but despite that he hit in the rear portion of the car. This shows that respondent no.1 failed to maintain a safe distance from the car, which establishes negligence on his part. Further, during inquiry, respondents did not lead any evidence to show that there was no rashness or negligence on the part of respondent no.1 or that there was any contributory negligence on the part of car driver.
MACT No. 701/2017 Page No. 8 of 18D.S.Baba vs. Sanjay Kumar Sahu & ors.
(v) In view of the above, I am of the considered opinion that the accident in question had been caused due to the rashness or negligence of the offending bus. Accordingly, Issue No.1 is decided in favour of petitioner and against the respondents.
Issue No.2:
Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
11. In case New India Assurance Company Ltd. vs. J. L. Suri & ors. (supra), insurance company took a plea that since the injured had got reimbursement of all the medical bills under Medical Claim Policy, injured is not entitled for reimbursement of the said medical bills from the insurer of the offending vehicle as it would amount double benefit. This contention was upheld by the Hon`ble High Court.
(i) However, in case Oriental Insurance Company vs. K. P. Kapur & ors. (supra), claimant filed the claim petition for a compensation of ` 60,000/- for causing damage to his car under M. V. Act. In the said case also claimant had received a claim of ` 36,000/- from his insurance company. In the said case, award was challenged by the insurance company before the Hon`ble High Court by raising the sole plea that since the claimant had already received a compensation of ` 36,000/- from his insurance company for MACT No. 701/2017 Page No. 9 of 18 D.S.Baba vs. Sanjay Kumar Sahu & ors.
loss of his car, said amount is liable to be deducted from the award amount otherwise it would be amount double enrichment to the claimant and same is not permissible under M. V. Act. The said issue was dealt with by the Hon`ble High Court of Delhi in para No.6, same is reproduced as under:
"6. Regarding deduction of Rs. 36,000/- received by the respondent from his Insurance Company on the ground of double enrichment, this argument has no force. Mr. K.P. Kapur rightly contended that this amount could not be deducted on the basis of the settled law, as referred to in Chapter 10 of "The Quantum of Damages by Kemp & Kemp - 1986 Edition" which has referred to the judgments under the English Law that "completely collateral matters cannot be invoked by a tort feas or to reduce the damages payable to the victim of his tort". The following passage from Para 10-002 which refers to case law is reproduced as under:
In an action for injuries caused by defendants' negligence a sum received by the plaintiff on an accidental insurance policy cannot be taken into account in reduction of damages". This is the headnote to Bradburn v. Great Western Ry. and in our view correctly summarises the effect of this case. Two passages from the judgments in this case contain the ratio decidendi. Bramwell B. said:
In Dalby v. India and London Life Assurance Company, it was decided that one who pays premiums for the purpose of insuring himself, pays on the footing that his right to be compensated when the event insured against happens is an equivalent for the premiums he has paid; it is a quid pro quo, larger if he gets it, on the chance that he will never get it at all. That decision is an authority bearing on the present case, for the principle laid down in it applies, and shows that the plaintiff is entitled to retain the benefit which he has paid for in addition to the damages which he recovers on account of the defendants' negligence. And Pigott B. said:
The plaintiff is entitled to recover the damages MACT No. 701/2017 Page No. 10 of 18 D.S.Baba vs. Sanjay Kumar Sahu & ors.
caused to him by the negligence of the defendants and there is no reason or justice in setting off what the plaintiff has entitled himself to under a contract with third persons, by which he has bargained for the payment of a sum of money in the event of an accident happening to him. He does not receive that sum of money because of the accident, but because he has made a contract providing for the contingency; an accident must occur to entitle him to it, but it is not the accident, but his contract, which is the cause of his receiving it.
(Emphasis supplied) Similar point came up before this Court in the case of Dr. A.C, Mehra v. Shri Behari Lal and Am. F.A.O. No. 138/80 decided on 1st November, 1996. This Court took the view that no deduction on account of having received any amount from the Insurance Company under a third party account can be allowed. There is no reason or justification in setting off what the appellant being entitled to receive under his contract with his Insurance Company i.e., a third party. He had bargained for the payment of a sum of money in the event of accident happening and his car being damaged. Appellant insured his car with the Insurance Company And bargained for the payment of a sum of money on the clear stipulation that in the event of accident happening to his car he would be reimbursed. He did not receive the amount of Rs. 36,000/- from his Insurance Company because of this accident but because of the contract entered into by him with his Insurance Company. The pre- condition was the happening of an accident. The said Insurance Company on the happening of the accident was to reimburse him for the damage of his car. Therefore, it cannot be said that by claiming damages under the Act because of the rash and negligent driving of the driver of the DTC bus and due to the damage of his car he would be debarred from claiming compensation under the Act, nor claiming such a compensation under the Act would amount to unjust enrichment. I find no merits in the appeal of the appellant on this count also. In the circumstances explained above, the appeal of the appellant fails. The same is accordingly dismissed.MACT No. 701/2017 Page No. 11 of 18
D.S.Baba vs. Sanjay Kumar Sahu & ors.
(ii) If we apply the above proposition of law, claimant would entitled to seek compensation. However, as per judgement New India Assurance company Ltd. vs. J. L. Suri (supra), no compensation should be awarded to the claimant as he has already received the amount from his insurance company.
12. Now question arises which of these two views is applicable in the present case.
(i) Case C. Ganga vs. Lakshmi Ammal & anr. (supra), reiterated the law of precedents. The relevant portion of the judgment is reproduced as under:
(iv) A smaller bench or a co-ordinate bench cannot lay down a legal proposition different from an earlier binding decision of a larger or co-ordinate bench. If there be disagreement, the smaller bench must follow the earlier binding decision and a co-ordinate bench is bound to refer the matter to a larger bench for its decision. The smaller bench if it disagrees can at best only request the Chief Justice to invoke his powers to place the matter before a larger bench. Consequently it must be assumed and presumed that no smaller or co-ordinate bench even lays down or intends to lay down a principles contrary to the binding decision of an earlier larger or co-ordinate bench."MACT No. 701/2017 Page No. 12 of 18
D.S.Baba vs. Sanjay Kumar Sahu & ors.
(ii) Admittedly, judgment OIC vs. K.P. Kapur (supra) is in precedent to the case of New India Assurance Company (supra) and since both the judgments are of co-ordinate bench, in view of the aforesaid proposition of law, law laid down in OIC vs. K. P. Kapur (supra) is applicable to the present case.
(iii) Applying the proposition of law as laid down in OIC vs. K. P. Kapur (supra) case, I am of the view that petitioner is entitled for compensation under Section 166 of M. V. Act despite the fact that he got a claim from his insurance company under the contract.
13. Now question arises how much amount is to be paid to the claimant?
(i) As per Invoice Ex. PW1/N, claimant had spent a sum of ` 77,708/- and the said amount has already been reimbursed by the insurer of the car i.e. Future Gererali Insurance Company Ltd.
(ii) In case National Insurance Company Ltd. vs. Rajesh Kumar & anr. (supra), the question arose before the Hon`ble High Court whether claimant is entitled only for re- pair payment or any other amount under M. V. Act. This issue was dealt with by the Hon`ble High Court in para No. 4 & 5 of the judgment. Same are reproduced as under:
MACT No. 701/2017 Page No. 13 of 18D.S.Baba vs. Sanjay Kumar Sahu & ors.
4. Record shows that the "Repaired Damages" under the head of compensation awarded had been in the sum of ` 1,45,000/-; this was keeping in view the 14 bills which had been proved by the petitioner (Ex.PW-1/1 to Ex.PW-1/14) which bills had not been disputed; the final bill dated 11.7.20 03 was in the sum of ` 1,44,460/-. This amount of ` 1,45,000/- awarded under the head of "Repaired Damages" calls for no interference. The other amounts awarded as towing charges, inconvenience caused to the petitioner, conveyance charges i.e. the amount spent by the petitioner while his vehicle was being repaired, loss of income in this intervening period are illegal and impermissible.
Section 165 of the Motor Vehicle Act reads as follows:
165.Claims Tribunals: (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accident Claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating up on claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both."
5. Damages to any property" as occurring in this Section refers to a direct damage to the property alone i.e. to the vehicle in question which in this case was the TATA India vehicle. Damages assessed on that account was rightly awarded in the sum of ` 1,45,000/-. The damages or loss suffered by the owner of the vehicle due to the vehicle having remained idle during the period of its repair are not permissible under Section 165 of the M.V.Act. The grant of these amounts is an illegality; they are liable to be set aside. This view is supported by the judgment of the Andhra Pradesh High Court reported in New India Assurance Co.
(supra); It is only the Civil Court which can pass a decree on other counts.
(iii) From the above, it becomes clear that MACT No. 701/2017 Page No. 14 of 18 D.S.Baba vs. Sanjay Kumar Sahu & ors.
petitioner is entitled for the actual amount spent on the repair of the car and not for other ancillary charges such towing charges, inconvenience caused to the petitioner etc.
(iv) Since the claimant had incurred a sum of ` 77,708/- for the repair of his car, I am of the view that claimant is entitled for recovery of the said amount from the insurance company under M. V. Act.
(v) Since, interest @ 9% per annum was awarded by the Apex Court in Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC), it is held that claimant shall be entitled to interest @ 9% per annum from the date of filing of claim petition i.e. 04.07.2017 till realization of the amount.
(vi) Accordingly, claimant is entitled for a compensation of ` 77,708/-; rounded of ` 78,000/- with interest @ 9% per annum from the date of filing of the claim petition i.e. 04.07.2017 till realization of award amount.
14. DISBURSEMENT:-
(i) As the claim pertains to damage of the property, on realization, entire award of ` 78,000/- plus entire interest shall be released to the petitioner. The entire amount shall automatically be transferred in his saving account maintained in a nationalized bank near the place MACT No. 701/2017 Page No. 15 of 18 D.S.Baba vs. Sanjay Kumar Sahu & ors.
of his residence.
15. In compliance of the directions given by Hon`ble High court in FAO No. 842/2003 dated December 15, 2017, Summary of the Award in the prescribed format- IV A is as under:-
SUMMARY OF AWARD
(i) Date of accident 30.12.2016
(ii) Name of the claimant Sh. D.S.Baba COMPUTATION OF COMPENSATION S.No. Heads Awarded by the Tribunal (IN `) A. Pecuniary Loss:
(i) Expenditure on damage 77,708/-
B Total Compensation (Rounded off) 78,000/-
C. INTEREST AWARDED 9%
D. Interest amount upto the date of award 10,137/-
01 year 5 months and 10 days
E. Total amount including interest 88,137/-
. Award amount release As mentioned in
para no. 14
F. Award amount kept in FDRs NA
G. Mode of disbursement of the award as mentioned in
amount to the claimants (s) (Clause para No. 14
29)
H. Next date for compliance of the award. 15.01.2019
(Clause 31.)
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D.S.Baba vs. Sanjay Kumar Sahu & ors.
LIABILITY TO PAY:-
16. Since the offending vehicle was being driven by respondent no. 1 and registered in the name of re- spondent no. 2 and insured with respondent no. 3, all shall be jointly and severally liable to pay compensation to the peti- tioner.
(i) In view of aforesaid discussion, Issue No.2 is decided in favour of petitioner and against the respondents.
RELIEF:
17. Since, the offending vehicle was insured with respondent no. 3, respondent No. 3 ( Oriental Insurance Company Ltd.) is directed to deposit the award amount of ` 78,000/- with interest @ 9 % per annum from the date of filing of claim petition i.e. 04.07.2017 till realization of the amount with Nazir of this Tribunal within 30 days under intimation to the petitioners failing which the respondent no.3 shall be liable to pay interest @ 12 % per annum for the period of delay beyond 30 days.
(i). Driver, owner of the offending vehicle and insurer are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioner/claimant and MACT No. 701/2017 Page No. 17 of 18 D.S.Baba vs. Sanjay Kumar Sahu & ors.
complete detail in respect of calculation of interest etc. within 30 days from today.
(ii) A copy of this judgment be sent to Respondent No. 3, for compliance within the time granted.
(iii) Nazir is directed to place a report on record on 15.01.2019 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iv) In terms of clause 31 & 32 of the judgment titled Rajesh Tyagi & others Vs. Jaibir Singh & Ors. decided by Hon`ble High Court on December 12, 2014, copy of this award be sent to the concerned court of Ld. Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
(v) File be consigned to Record Room.
Announced in open court on this 14th day of December, 2018 (PAWAN KUMAR JAIN) Judge, MACT-1 (Central), THC, Delhi/sv Digitally signed PAWAN by PAWAN KUMAR KUMAR JAIN Date: 2018.12.14 JAIN 14:10:10 +0530 MACT No. 701/2017 Page No. 18 of 18