Delhi District Court
Basanta vs . Anil & Ors. on 22 January, 2020
IN THE COURT OF SH. M. K. NAGPAL :
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
BASANTA VS. ANIL & ORS.
Five year old matter
Sh. Basanta
S/o Sh. Chhotte Lal,
R/o H.No. 414, Rangpuri Pahari,
Nala Camp, Delhi-110037.
......Petitioner/Injured
Versus
1. Sh. Anil (Driver)
S/o Sh. Prem Shankar,
R/o VPO Bajota, District Aligarh, U.P.
Presently at Khajan Singh Farm,
Rangpuri Pahari, New Delhi.
2. M/s The Earth Saviours Foundation (Owner)
34, Green Avenue Road, Vasant Kunj,
New Delhi-110070.
Also at :-
B-9, Taj Apartment,
Near Safdarjung Hospital, Ring Road,
Delhi South West, Delhi-110029.
3. M/s HDFC Ergo General Insurance Co. Ltd. (Insurer)
Plot No. C-9, 3rd Floor, Pearl Best Heights-II,
Netaji Subhash Place, Pitampura,
New Delhi-110034.
.....Respondents
Date of filing of DAR : 07.07.2014
Date of filing of Petition : 24.11.2014
Date of framing of issues : 13.02.2015
Date of concluding arguments : 07.01.2020
Date of decision : 22.01.2020
MACP No. 202/14 Page no.1 of 25
AWARD/JUDGMENT
1. The claim for compensation raised in this petition relates to injuries suffered by petitioner in a road accident that took place on 07.06.2014, at around 06.30 pm, on the gate of Khazan Singh Firm, Rangpuri Pahari, New Delhi, regarding which one FIR bearing no. 548/14, Under Sections 279/337 IPC was registered at PS Vasant Kunj (South). The offending vehicle implicated in this case is a Tata Ace, popularly known as 'Chhota Haathi', bearing registration No. DL-1LT-3048, which at the relevant time of accident was being driven by respondent No. 1/R1, owned by respondent No. 2/R-2, which is stated to be a NGO,and insured with respondent No. 3/R-3.
2. The case of petitioner, in brief, is that on the above date and time, he was riding on his motorcycle bearing registration No. HR-28E-0700 and was returning back to his residence in Nala Camp, Rangpuri Pahari from Rangpuri side and when he had reached at the gate of Khazan Singh Firm, the above offending vehicle had suddenly come out from the gate of above firm at a fast speed and it had hit on his left leg and left side of the motorcycle. As a result thereof, the petitioner fell on road along with his motorcycle and suffered multiple injuries. He claims to have been removed to Safdarjung Hospital in an ambulance and his MLC was prepared there. He had also subsequently remained hospitalized in a private nursing home from 10.06.2014 to 19.06.2014 and surgery for fixation of fracture injury on his left leg was performed there and some implant was inserted in his leg. The nature of injuries suffered by him had been subsequently declared as grievous. It is alleged MACP No. 202/14 Page no.2 of 25 that the above accident took place due to rash and negligent driving of R-1.
3. The Detailed Accident Report (DAR) in respect to the above accident was filed before this Tribunal on 07.07.2014 and since no driving license of R-1 and any document pertaining to the above offending vehicle, including insurance policy, was produced before the Investigating Officer (IO) of the criminal case during investigation, sections 3/181, 5/180, 32/177 & 146/196 of the MV Act were also invoked against the driver and owner of the offending vehicle, besides sections 279/338 IPC for which a charge-sheet in the above criminal case was prepared.
4. Both R-1 and R-2 had filed their joint reply to the DAR and in the said reply, they had specifically taken a plea that no accident was alleged was caused by R-1 and R-1 was working as a helper only on the above offending vehicle on the day of accident and one Kaushal was driver thereof. It was also submitted by them that the offending vehicle was infact parked/stopped at the gate of above farm at the relevant time as the driver thereof had gone inside the farm to bring some documents, while R-1 was standing near the said vehicle. It was further submitted that the above accident took place due to fault of petitioner himself who came riding on his motorcycle at a fast speed and in a rash and negligent manner and after seeing the offending vehicle stationed there, he suddenly lost control of his motorcycle and fell on road and suffered injuries on his person. It was also submitted in the said reply that on the day of accident, the offending vehicle was duly insured with R-3 in the name of R-2.
MACP No. 202/14 Page no.3 of 25
5. One application under Order 1 Rule 10 CPC seeking impleadment of R-3, i.e. the Insurance Company of offending vehicle, was also then moved on behalf of the petitioner and before any reply could be filed to the said application on behalf of the Insurance Company, on being issued notice of the application, the present claim petition came to be filed by the petitioner on 24.11.2014 impleading the Insurance company as R-3 in the petition.
6. R-3/Insurance Company had also then filed their written statement/reply to the petition admitting therein that on the above day of accident, the offending vehicle/tempo was duly insured with them in the name of R-2, but they had claimed that their liability was only subject to compliance of terms and conditions of the insurance policy, including the condition that it was being driven by R-1 with a valid driving license at the time of accident.
7. From pleadings of the parties, this Tribunal had framed the following legal issues on 13.02.2015 for disposal of the claim of petitioner:-
1. Whether the petitioner sustained injuries in the accident which occurred on 07.06.2014 at about 06.30 pm, infront of Khajan Farm, Rangpuri Pahari caused by rash and negligent driving of vehicle No. DL-1LT-3048 being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3?OPP
2. Whether the petitioner is entitled for compensation ? If so, to what amount and from whom?
3. Relief.
MACP No. 202/14 Page no.4 of 25
8. The petitioner in support of his case has examined himself on record as PW1 and he has tendered his examination-in-
chief by way of an affidavit Ex. PW1/A and further tendered and relied upon his medical bills as Ex. PW1/1 (colly), his treatment record as Ex. PW1/2 (colly), copy of his Aadhar card and election ID card as Ex. PW1/3 (colly) and copy of his driving license as Ex. PW1/4 (colly).
9. Three witnesses in this case are also found to have examined on behalf of R-1 and R-2 and have been numbered as R1W1 to R1W3. R1W1 is Ms. Preeti Kiran, an employee of R-2 NGO and R1W2 is R-1 himself. They both have also tendered on record their examinations-in-chief by way of their respective affidavits as Ex. R1W1/A and Ex. R1W2/A respectively. In their above affidavits, they are found to have deposed on the above lines of their defence and have also tendered on record copies of their identity documents as Ex. R1W1/1 and Ex. R1W2/1 respectively, besides certain other documents Mark A, Mark B and Mark C. R1W3 examined by them on record is the above Kaushal Kumar who was claimed by them to be working as a driver on offending vehicle on the date of accident and he is found to have deposed to the said effect.
10. R-3/Insurance Company has also examined on record one Sh. Shyama Charan Vats as R3W1 and he is the Assistant Manager of company and has tendered on record his examination- in-chief by way of an affidavit Ex. R3W1/A and has further brought in evidence and relied upon a copy of one attorney in his favour as Ex. R3W1/1, copy of one notice under Order 12 Rule 8 CPC given to R-1 and R-2 for production of certain documents Ex. R3W1/2, its postal MACP No. 202/14 Page no.5 of 25 receipts and AD card as Ex. R3W1/3, Ex. R3W1/4 and Ex. R3W1/5, attested copy of insurance policy of offending vehicle containing terms and conditions thereof as Ex. R3W1/6 (colly) and DAR as well as FIR filed by the IO on record as Ex. R3W1/7 (colly).
11. I have heard the arguments advanced by Sh. D.S. Mehta, Ld. Counsel for petitioner, Sh. Anup Kumar, Ld. Counsel for R-1 and R-2 and Ms. Manu Kushwaha, Ld. Counsel for R3/Insurance Company. The case record has also been perused. My findings on the above issues are as under :-
ISSUE No. 112. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case.
13. Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law MACP No. 202/14 Page no.6 of 25 Suit (SC) 303.
14. In his affidavit Ex. PW1/A containing his examination-in- chief, the petitioner has almost deposed on the above lines of his case regarding the factum as well as manner of the said accident. He has specifically stated therein that the above accident took place when the offending vehicle came being driven by its driver in a rash and negligent manner and at a fast speed from inside of the Khazan Farm and it had hit from his left side. He has also stated therein that he sustained multiple injuries in the above accident and the doctors had diagnosed that he had suffered fracture of both bones of his left leg and he was operated for the same. He has also stated in clear and specific terms that the above accident took place due to rash and negligent driving of above offending vehicle by R-1.
15. During his cross-examination conducted by Ld. Counsel for R-1 and R-2 on this aspect, he has also stated that the speed of his motorcycle was around 20 to 25 km per hour at that time and he further denied the suggestions that it was 50 to 60 km per hour or that he was using a mobile phone while driving the motorcycle. He further denied the suggestion that the above accident took place due to his own rash and negligent driving.
16. As stated above, both R-1 and R-2 in their reply had taken a defence of total denial of accident and it was their case that on seeing the offending vehicle stationed there, the petitioner lost balance of his motorcycle being driven by him at a fast speed and he suffered injuries because he fell on road with motorcycle due to the same. R-1 as R1W2 and the above Ms. Preeti Kiran as R1W1 MACP No. 202/14 Page no.7 of 25 had also tendered their examinations-in-chief by way of their respective affidavits to the same effect. However, this defence of respondents is found to be not acceptable and has remained unsubstantiated from records. Rather, it has been observed from records that the petitioner was nowhere suggested even during his cross-examination that he suffered the above injuries because he fell on road with his motorcycle due to his own fault because as the suggestions which have been put to him during his cross- examination by Ld. Counsel for R-1 and R-2 are that on seeing the stationery offending vehicle, the petitioners lost control of his motorcycle and has gone to dash his motorcycle against the stationery vehicle. These suggestions are apparently found to have been given against the defence which the respondents have taken in their above written statement/reply.
17. Again, as per the depositions made by both the above defence witnesses, the offending vehicle was stationed just in middle of the gate of above farm at the time of accident and it is not their case that the same was stationed or parked on road or middle of the road and hence, there does not appear to be any reason or logic in their submission that the petitioner had lost balance in driving of his motorcycle on seeing their vehicle. Therefore, it is not possible to accept the above defence being raised on behalf of the respondents that the petitioner himself was responsible for the above accident and the injuries suffered by him.
18. Moreover, the case of petitioner that the above accident took place due to rash and negligent driving of offending vehicle by R-1 and in the manner as claimed by him before this tribunal MACP No. 202/14 Page no.8 of 25 stands also duly substantiated from records of the above criminal case registered about this accident, which have been filed along with the DAR by the IO and which consist of not only a copy of FIR and charge-sheet of the said case, but also a copy of site plan of the place of accident, seizure memos and mechanical inspection reports of two vehicles, MLC and other treatment record of petitioner and arrest memo of R-1 etc. It is observed from these documents that the above FIR has been registered on the basis of statement given by petitioner on the day of accident itself and rukka on the said statement was endorsed and sent to PS for registration of FIR just after around four hours from the time of accident and thus, without any undue or unreasonable delay. In the FIR also, the manner of accident has been recorded as it has been deposed by the petitioner in his above affidavit Ex. PW1/A. Further, the site plan of place of accident and mechanical inspection reports of the two vehicles also corroborate the claim of petitioner on this aspect and fresh damages are found to have been mentioned in the above mechanical inspection reports on the right front side of the offending tempo and left side of the motorcycle, which again corroborate the claim and depositions of petitioner. Apart from the above, it has also been specifically admitted on behalf of the respondents that R-1 stands already charge-sheeted and is facing trial in the above criminal case and this fact in itself is a strong circumstance to corroborate the case of petitioner in this regard.
19. However, before parting with the discussion and appreciation of evidence on this issue, it is also necessary to deal with another plea taken by the respondents to the effect that R-1 MACP No. 202/14 Page no.9 of 25 was only working as a helper on above offending vehicle on the day of accident and its driver was R1W3 Sh. Kaushal Kumar. In this regard, specific submissions and depositions are found to have been made in the written statement/reply of the said respondents, as well as in their above affidavits Ex. R1W1/A and Ex. R1W2/A.
20. However, it is also observed that even this defence or plea of respondents is found unacceptable from the evidence led on record. It is seen that during the course of statements of R1W1 and R1W2, photocopies of two complaints made to the concerned SHO and Insurance Company, i.e. one by R1W1 and one by R1W2, have been produced on record as Mark A and Mark B respectively and in these complaints also, it has been submitted that the petitioner had dashed his motorcycle against the offending vehicle when it was stationery and R-1 has been falsely implicated as its driver. However, as already stated, these complaints have been produced in evidence in the form of photocopies and no record in respect of originals thereof has been got summoned or produced before this tribunal and hence, the contents thereof cannot be read and considered against the petitioner. But since these documents have been produced by the above two respondents, their contents can certainly be looked into and considered against them. It has been observed on perusal of these documents that nowhere it has been stated therein that the above Kaushal Kumar was working or posted as a driver on the offending vehicle on the date of accident, though the apprehension of R-1 as driver on the spot of accident has been admitted in the said documents. Hence, the above plea of defence taken by R-1 and R-
MACP No. 202/14 Page no.10 of 25 2 about the offending vehicle being driven by above Kaushal Kumar appears to be an afterthought only and it seems to have been taken to avoid their liability due to the fact that it has also come on record that R1 Anil Kumar was not holding a valid driving license on the day of accident. The name of above Kaushal Kumar as driver is not found stated in the above complaints despite the fact that these complaints were given to the SHO and Insurance Company concerned after lapse of a period of around eight months from the date of accident.
21. Further, it is also found recorded in the FIR that the petitioner was taken to hospital in an ambulance belonging to R-2 NGO being run in the above farm and the driver of offending tempo had driven him to the hospital. It is also found recorded in the rukka endorsed on the said FIR that R-1 was even present in the hospital at the time of arrival of police and he was identified by the petitioner as driver of the offending vehicle to the IO. Hence, the depositions made by petitioner in his cross-examination to the effect that he cannot say if the name of driver of the offending vehicle was Kaushal Kumar can only be because of some misunderstanding on his part or the same can be attributed to loss of time.
22. Thus, in view of the above discussion and keeping in view the degree of onus of proof placed upon the petitioners in the light of legal position already discussed by this tribunal, it is held that the oral evidence led on record by petitioner is duly substantiated by the documentary evidence and it stands proved that the above accident resulting into injuries on his person was caused due to the rash and negligent driving of the above offending MACP No. 202/14 Page no.11 of 25 vehicle bearing registration no. DL-1LT-3048 by R-1, which was owned by R-2 and insured with R3 at the relevant time of accident. This issue is accordingly decided in favour of the petitioner and against the respondents.
23. ISSUE NO.2 "Whether the petitioner is entitled for compensation? If so, to what amount and from whom?"
Now coming to quantum of compensation, as per the settled position the petitioner is entitled to be compensated for the injuries suffered in the above accident, but the computation of compensation and liability to pay the same are still required to be decided. In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as non- pecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non-pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses incurred by the claimant towards his treatment, special diet, MACP No. 202/14 Page no.12 of 25 conveyance, cost of nursing/ attendant, loss of income/earning capacity etc. and the non-pecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or compensation can put the injured/claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work in calculating the different amounts which the claimant may be entitled under the different heads of compensation. Reference in this regard can be made on some of important judgments on the subject like the judgment in the case of R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. AIR 1995 SC 755, Arvind Kumar Mishra Vs. New India Assurance Company Limited (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr. (2011) 1 SCC 343.
24. In light of the above legal propositions, the amount of compensation which can be considered to be 'just' in the opinion of this tribunal shall be as under:-
(i) Medical or Treatment Expenses MACP No. 202/14 Page no.13 of 25
As stated above, the petitioner had suffered grievous injuries in the form of fractures on his left leg in the above accident. Though in his affidavit Ex. PW1/A, the petitioner has claimed that he had spent an amount of around Rs.2,50,000/- on his treatment, but the medical bills/payment receipts tendered on record by him as Ex.PW1/1 (colly) are found to be totaling to a sum of Rs.1,03,442/- only. Besides these bills, he has also tendered on record his complete treatment record as Ex.PW1/2 (colly) and it has been observed that his above medical bills and payment receipts are in consonance with his treatment record and hence, under this head, he is held entitled to the above amount of Rs.1,03,442/- from the respondents towards his actual medical expenses.
(ii) Loss of actual earnings Though, the nature of injuries suffered by petitioner was grievous, but admittedly, he has not suffered any permanent disability due to the said injuries. The treatment record of the petitioner Ex.PW1/2 (colly) reveals that after some initial treatment from Safdarjung Hospital, he got admitted in Gandhi Nursing Home, Om Vihar, Uttam Nagar, New Delhi on 10.06.2014 and remained hospitalized there till 19.06.2014. As per the discharge summary of this hospital, both bones of his left leg were found fractured and he was subjected to a surgery in the said Nursing Home on 11.06.2014 and some implants were inserted in his affected leg. The above treatment record of petitioner further reflects that he had undergone intensive medical investigations in connection with his treatment and surgery and even after his discharge, he had remained under active treatment of the above Nursing Home as an outdoor patient. His MACP No. 202/14 Page no.14 of 25 treatment record spreads over till December, 2014.
In his above affidavit, the petitioner has claimed the loss of earnings for a period of around 8 months as he has stated that due to the above injuries, he was not in a position to do his work or job. In considered opinion of this tribunal, the above period of 8 months is not excessive or unreasonable keeping in view the nature and extent of injuries suffered by the petitioner, duration of his treatment and his treatment record Ex.PW1/2 (colly). Hence, under this head, the petitioner is held entitled to be compensated for loss of his earnings equivalent to a period of 8 months.
Now coming to earnings of the petitioner, in his above affidavit Ex.PW1/A, he claims that he was working as a labourer and earning around Rs.10,000/- pm from the said work. However, in his affidavit or during his examination-in-chief, there is no mention about the nature of labour work being performed by him or the office or authority or organization etc. for which he was working. Though during the course of his cross-examination, he has placed on record one letter of appointment dated 29.09.2013 showing that he was to report for work under some contractor at Delhi International Airport Terminal-3 w.e.f. 01.10.2013 at a monthly in hand salary of Rs.10,000/-, but since no other record pertaining to above employment of the petitioner has been summoned from the concerned office to substantiate the same, his claim regarding his earnings being Rs.10,000/- pm at the relevant time cannot be accepted and it cannot be even inferred from the said letter that the petitioner actually joined his duties at the above said place or he was ever paid the above salary of Rs.10,000/- pm. Hence, in the MACP No. 202/14 Page no.15 of 25 absence of their being any other documentary evidence on record to show the employment or earnings of petitioner, he is held entitled to be compensated at the rate of minimum wages for unskilled workers in Delhi at that time, which were Rs.8,554/- pm. Therefore, the petitioner is being awarded an amount of Rs.68,432/- (Rs.8,554/-X 8) under this head pertaining to loss of his actual earnings.
(iii) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
As discussed above, the petitioner had suffered grievous injuries in the above accident and he remained under treatment for a considerable time. Hence, keeping in view the extent and nature of the injuries suffered by the petitioner and duration of the treatment taken by him etc., an amount of Rs.20,000/- each is being awarded to him towards mental and physical shock & pain and sufferings and besides this, an amount of Rs.10,000/- is also awarded to him towards the loss of amenities suffered during the said period of his treatment and immobility. Thus, he is awarded a total amount of Rs.50,000/- under this head.
(iv) Conveyance, Special Diet and Attendant Charges In his above affidavit Ex.PW2/A, the petitioner has claimed that he had spent about Rs.25,000/- on special diet, Rs.20,000/- on conveyance and Rs.20,000/- on attendant, but he has failed to lead any supporting evidence. Still his claim towards these requirements cannot be ignored and rejected because this tribunal can take note of these requirements of petitioner in connection with his treatment during the above period of his MACP No. 202/14 Page no.16 of 25 treatment. Hence, an amount of Rs.10,000/- each is being awarded to the petitioner towards the requirements of special diet and conveyance. Besides this, an amount of Rs.20,000/- towards attendant charges for the gratuitous services which might have been rendered by his family members during the above said period of his treatment, hospitalization and immobility is also awarded to him.
Hence, a total amount of Rs.40,000/- is being awarded to him under this head.
Issue No.3/Relief
25. The petitioner is thus awarded a sum of Rs.2,61,874/- (Rs. 1,03,442 + 68,432 + 50,000 + 40,000) (Rupees Two Lacs Sixty One Thousand Eight Hundred Seventy Four only) along with interest. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
26. RELEASE Out of the awarded amount, 50% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in MACAD in the form of 15 monthly fixed deposit receipts (FDRs) payable in equal amounts for a period of 1 to 15 months in succession and the amount of FDRs on maturity would be released in his savings account bearing no. 606901011001832 being maintained at Vijaya Bank, Mahipal Pur Branch, New Delhi having IFSC Code No. VIJB0006069. The remaining 50% amount is also directed to be released into his above said account, which can be withdrawn and utilized by the petitioner.
MACP No. 202/14 Page no.17 of 25 To facilitate deposits in the above scheme and disbursement of the awarded amount, the petitioner shall also open a savings bank account in the UCO Bank, Patiala House Court, New Delhi, if not opened earlier. However, the concerned bank (s) shall permit the petitioner to withdraw money from his above savings bank account by means of withdrawal forms or biometric authentication.
The above disbursement to the petitioner is, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from his above share.
The bank shall not permit any joint name (s) to be added in the savings bank account of the petitioner i.e. the above account
(s) of the petitioner shall be individual account (s) and not a joint account (s).
The original fixed deposits be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioner and the above amounts shall be released in account of the petitioner by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
The maturity amounts of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above account of the petitioner.
No loan, advance or withdrawal or pre-mature discharge be allowed on the above saving account of the petitioner without permission of the Court.
MACP No. 202/14 Page no.18 of 25 Petitioner has already produced before this tribunal his original passbook with necessary endorsements to the effect that no cheque book shall be issued to his above said account and he has also filed copy thereof on record along with his aadhar card and PAN card. It is directed that the concerned bank (s) shall not to issue any cheque book and/or debit card to the claimant in future also.
27. LIABILITY As already discussed above, R-3/Insurance Co. has taken a plea that its liability to pay compensation in the present case was as per terms and conditions of the insurance policy issued by them in respect of the offending vehicle. It has been argued that the offending vehicle was being not driven by R-1 under a valid DL. As already discussed above, the claim of R-1 was that he was only working as a helper and was not employed as a driver on offending vehicle at the time of accident, but this claim of R-1 & R-2 has already been rejected by this tribunal on appreciation of evidence led on record and it also stands admitted by the witnesses produced by the respondents that R-1 was not holding DL at the time of accident authorizing him to drive the above offending vehicle. However, still the argument being made by Ld. Counsel for R-3 for their exoneration in the present case due to above is held not acceptable and in view of the law laid by the Hon'ble Delhi High Court in the case of Giriraj Vs. Viniti Kohli & Anr. MACA No.639/19 decided on 23.09.2019, R-3/Insurance Company is only held entitled to a right of recovery of the award amount from R-2, i.e. owner of the offending vehicle, as per the contract of insurance executed between them.
MACP No. 202/14 Page no.19 of 25 Though, the issue of DL of petitioner has also been raised on behalf of the respondents as the evidence led on record and copy of DL of the petitioner brought in his evidence as Ex.PW1/4 show that his above DL was issued only after the date of accident, but the claim for compensation cannot be rejected for the said reason and even no inference of any contributory negligence on his part due to the same can be drawn. Reference on this aspect can be made upon a Full Bench decision of the Hon'ble Supreme Court in the case of Dinesh Kumar Vs. National Insurance Co. Ltd., (2018) 1 SCC 750, wherein it has been held by their Lordships that no presumption or inference of rash and negligent driving of victim or even contributory negligence on his part can be raised simply because of the fact that he was not holding a driving licence.
Thus, though all the respondents are otherwise held jointly and severally liable to pay the awarded amount of compensation, but R-3/Insurance Co. is held entitled to recovery rights of the awarded amount of compensation in the present case from R-2. However, R-3 being insurer of the offending vehicle is first liable to deposit the awarded amount in compliance of the present award and therefore, R-3 is directed to deposit the above award amount with this tribunal or with the UCO Bank, Patiala House Court Branch, alongwith interest @ 9% per annum, by way of crossed cheque/DD in name of the petitioner within 30 days from today failing which it will be liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, R-3 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High MACP No. 202/14 Page no.20 of 25 Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5,000/-.
R-3 shall inform the claimant (s) and their counsel through registered post that the cheques of the awarded amounts are being deposited so as to facilitate them to collect their cheques.
28. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
29. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
30. The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:-
1. Date of the accident 07.06.2014
2. Date of intimation of the accident by the Investigation Officer to the Claims Not given Tribunal.
3. Date of intimation of the accident by the Investigating Officer to the Insurance Not given company.
4. Date of filing of Report under Section 173 Cr.PC before the Metropolitan Not given Magistrate.
5. Date of filing of Details Accident Report (DAR) by the Investigating Officer before 07.07.2014 Claims Tribunal.
MACP No. 202/14 Page no.21 of 25
6. Date of service of DAR on the Insurance
Not impleaded in DAR
Company.
7. Date of service of DAR on the
07.07.2014
claimant(s).
8. Whether DAR was complete in all
Yes
respects?
9. If not, state deficiencies in the DAR ......
10. Whether the police has verified the
Yes
documents file with DAR?
11. Whether there was any delay or
deficiency on the part of the Investigating DAR has been filed within Officer? If so, whether any time action/direction warranted?
12. Date of appointment of the Designated Not given Officer by the Insurance Company.
13. Name, address and contact number of the Designated Officer of the Insurance Not given Company.
14. Whether the Designated Officer of the Insurance Company submitted his report NA within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Insurance Legal offer not given Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the NA Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of Legal offer not given the offer of the Insurance Company.
18. Date of the award 22.01.2020
19. Whether the award was passed with the No consent of the parties?
20. Whether the claimant(s) were directed to open savings bank account(s) near their Yes place of residence?
21. Date of order by which claimant(s) were 05.03.2018 directed to open savings bank account(s) MACP No. 202/14 Page no.22 of 25 near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the claimant
(s) and make an endorsement to this effect on the passbook(s).
22. Date on which the claimant(s) produced the passbook of their savings bank account near the place of their residence 28.01.2019 along with the endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the R/o. H. No. 414, Rangpuri Claimant(s) Pahari, Nala Camp, New Delhi-110037.
24. Details of savings bank account (s) of the A/c No. 606901011001832 claimant(s) and the address of the bank being maintained at Vijaya with IFSC Code. Bank, Mahipal Pur Branch, New Delhi having IFSC Code No. VIJB0006069
25. Whether the claimant(s) savings bank account(s) is near his place of Yes residence?
26. Whether the claimant(s) were examined at the time of passing of the award to Yes ascertain his/their financial condition?
31. File be consigned to Records after necessary formalities. A separate file be prepared for compliance report and be put up on Digitally signed 30.04.2020. MANOJ by MANOJ KUMAR KUMAR NAGPAL NAGPAL Date: 2020.01.25 16:10:07 +0530 Announced in the open court. (M.K. Nagpal) on 22.01.2020 PO/MACT, New Delhi Encl: The summary of computation in the prescribed format MACP No. 202/14 Page no.23 of 25 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM-IVB Date of accident : 07.06.2014 Name of the injured : Basanta Age of the injured : Above 23 years at the time of accident.
Occupation of the injured : Unskilled worker
Income of the injured : As per minimum wages
Nature of injury : Grievous
Medical treatment taken by the injured : Safdarjung hospital and Gandhi
Nursing Home
Period of hospitalization : 10.6.14 to 19.6.14
Whether any permanent disability? : NA
10. Computation of Compensation
Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs.1,03,442.00
(ii) Expenditure on conveyance Rs. 10,000.00
(iii) Expenditure on special diet Rs. 10,000.00
(iv) Cost of nursing/attendant Rs. 20,000.00
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs.68,432.00
(vii) Any other loss which may require Nil
any special treatment or aid to the
injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and Rs. 20,000.00
physical shock
(ii) Pain and suffering Rs. 20,000.00
(iii) Loss of amenities of life Rs. 10,000.00
(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. MACP No. 202/14 Page no.24 of 25
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed NA and nature of disability as permanent or temporary
(ii) Loss of amenities or loss of NA expectation of life span on account of disability.
(iii) Percentage of loss of earning NA
relation to disability
(iv) Loss of future income NA
14. Total Compensation Rs.2,61,874.00
15. Interest Awarded 9% p.a. from date of filing of
DAR till deposit within 30 days
and 12% p.a. thereafter.
16. Interest amount up to the date of Rs.1,30,757.63
award
17. Total amount including interest Rs.3,92,631.63
rounded off to Rs.3,93,000/-
18. Award amount released 50% of the amount
19. Award amount kept in the FDRs 50% of the amount
20. Mode of disbursement of the award Through bank
amount to the claimant (s)
21. Next date for compliance of the 30.04.2020
award
Digitally signed
by MANOJ
MANOJ KUMAR
NAGPAL
KUMAR Date:
NAGPAL 2020.01.25
16:10:21
(M.K. Nagpal)
+0530
PO/MACT, New Delhi
22.01.2020
MACP No. 202/14 Page no.25 of 25