Delhi District Court
Himanshu vs Shahid (Driver) on 6 March, 2021
IN THE COURT OF DR. KAMINI LAU : JUDGE (MACT)01
(CENTRAL) TIS HAZARI COURTS, DELHI
MACT No. 282/2019
CNR No. DLCT010046842019
Himanshu
S/o Sh. Raj Narayan
Resident of:
Village Gopalpur, 13 R Sonipat,
Haryana131402.
......Petitioner
Versus
1. Shahid (Driver)
S/o Sh. Liyakat Ali
R/o:5657/10, Hanuman Mandir,
Nabi Karim, Delhi110055.
2. Rajan Dabla (Owner)
S/o Jai Pal Dabla
R/o Nabi Karim, Paharganj,
New Delhi110055.
3. Go Digit General Insurance (Insurance Company)
Delhi Business Center Unit FLO 305/310,
Plot No.9, 10 and 11, Vardhman Trade Center,
Nehru Place South Delhi110019.
Policy No. D000488186.
Valid from 12.06.2018 to 11.06.2019.
......Respondents
Date of filing of claim petition: 09.04.2019
Arguments concluded on: 19.02.2021
Date of passing of Award: 06.03.2021
Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.1 of 28
Digitally signed by KAMINI LAU
KAMINI LAU Date: 2021.03.06 17:11:21
+0530
A W A R D:
(1) The present Claim Petition has been preferred under Sections
166 & 140 of Motor Vehicles Act by the petitioner Himanshu
claiming a compensation of Rs.15,00,000/ (Rupees Fifteen Lacs
Only) in respect of the grievous injuries sustained by petitioner / injured
Himanshu in a motor vehicular accident which took place on
26.08.2018 at around 2.40 PM at Bahad Rakba Kulasi Moor, Village
Kanoda, Haryana.
(2) Though the accident had not taken place within the jurisdiction
of this Tribunal, yet vide order dated 09.04.2019 the Ld. Predecessor of
this Court has observed that the respondents no.1 and 2 are stated to be
residing within the jurisdiction of Police Station Pahar Ganj, Delhi
falling within the jurisdiction of this Tribunal.
BRIEF FACTS:
(3) The Facts in Brief as emerged from the claim petition are that on 26.08.2018 around 2.40 PM, the petitioner Himanshu along with his mother Smt. Rashmi was coming to his house by Scooty bearing registration No. UP70T3855 which was being driven by the petitioner Himanshu at a normal speed and on the correct side of the road. When they reached near Bahad Rakba Kulasi Moor, Village Kanoda Haryana, a Car bearing registration No. DL10CA9244, which was being driven by its driver i.e. respondent no.1 at a very high speed, rashly, Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.2 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:11:59 +0530 negligently, in a zigzag manner, without taking proper lookouts, violating the traffic rules and without blowing any horn, came from village Ladrawan side and hit the Scooty bearing registration No. UP 70T3855, with a great force. As a result of the impact Smt. Rashmi and Himanshu fell down on the road and sustained Grievous injuries. The petitioner / injured was immediately taken to Braham Shakti Sanjivani Hospital Bahadurgarh Haryana after which he was taken to Jai Prakash Narayan Apex Trauma Center (A.I.I.M.S.) where he was hospitalized from 26.08.2018 to 14.09.2018 and he is still under treatment as an out door patient.
(4) According to the petitioner, the respondent no.1 Shahid was the driver of the offending car at the time of accident whereas respondent no.2 Rajan Dabla is the owner of the offending car and the Respondent No.3 Go Digit General Insurance Co. is the Insurance Company. (5) A detailed common written statement / reply has been filed on behalf of the respondents no.1 and 2 wherein a preliminary objection has been raised that the petitioners have no cause of action against the respondents because no accident has caused due to rash and negligent driving on the part of the respondent no.1 and the respondent no.1 has not caused any accident as alleged but the police officials involved the vehicle of the respondents in the present case only to get the compensation. It is further averred that the amount of compensation as claimed by the petitioner is highly excessive, exorbitant and has been calculated in arbitrary manner, without following the Motor Vehicle Act and Rules. It is also averred that the vehicle of the respondents was duly Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.3 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:12:06 +0530 insured with the respondent no.3 at the time of alleged accident and the respondent no.1 was having valid driving license, at the time of the alleged accident, therefore the respondents are not liable to compensate the petitioner in any manner whatsoever.
(6) A detailed written statement / reply has been filed on behalf of the respondent no.3 M/s. Go Digit General Insurance Co. Ltd. wherein it is pleaded all the material allegations made in the present petition are false and the petition is not maintainable either on facts or in law against the respondent no.3. Without admitting the factum of the accident and liability, it is pleaded that the liability of the respondent no.3 if any is as per the terms and conditions and exceptions of the valid Insurance Policy and as per the compliance of the provisions of the M.V. Act and Insurance Act as well as the terms and conditions of the Insurance Policy. The respondent no.3 has relied upon all defences provided under Sections 147, 149, 157 and 170 of the Motor Vehicle Act. It is pleaded that the respondent no.3 is entitled to take all the defences available under Section 170 of the Motor Vehicle Act if it is held that the owner / Insured of the insured Vehicle No. DL10CA9244 is not contesting the case and is in collusion with the petitioner. It is also pleaded that without prejudice to the other objections, the respondent no.3 shall have no liability to indemnify the respondent no.2 or to pay any amount of compensation to the petitioners in case it is held that the respondent no.1 was not holding a valid and effective driving license authorizing him to drive the insured vehicle and the respondent no.2 has fundamentally violated the terms and conditions of the Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.4 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:12:17 +0530 Insurance Policy by allowing the respondent no.1 to drive the insured vehicle without a valid and effective driving license. It is further submitted that the petition of the petitioner is bad for nonjoinder of necessary parties since the owner and Insurer of the scooty bearing registration No. UP70T3855 are also the necessary parties to the proceedings. It is further pleaded that without prejudice the petitioner had sustained grievous injuries due to his own negligence.
ISSUES FRAMED:
(7) On the basis of the pleading of the parties, vide order dated 14.01.2020, the following issues were settled by this court:
i. Whether the claim petition of the petitioners is bad for non joinder of necessary parties as the owner and insurer of the scooty No. UP70T3855 have not been made parties?
(OPR3) ii. Whether the deceased Smt. Rashmi had expired on account of the injuries sustained in the road accident which took place on 26.08.2018 at about 2.40 PM at Bahad Rakba Kulasi Moor, Village Kanonda, Haryana due to rash and negligent driving of the vehicle bearing No. DL10CA9244 by the respondent no.1 Shahid? (OPP) iii. Whether the petitioners are entitled to any compensation? If yes, as to what extent and from whom? (OPP) iv. Relief.
Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.5 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:12:25 +0530 (8) Here, I may note that there is a typographical error in Issue No.2 which is hereby reframed, to which the Ld. Counsels for the parties have no objection. The Issue No.2 shall now be read as under:
Whether the petitioner Himanshu had sustained Grievous Injuries in the road accident which took place on 26.08.2018 at about 2.40 PM at Bahad Rakba Kulasi Moor, Village Kanonda, Haryana due to rash and negligent driving of the vehicle bearing No. DL10CA 9244 by the respondent no.1 Shahid? (OPP) EVIDENCE:
(9) In order to prove his case, the petitioner Himanshu has examined himself as PW1 as his sole witness whereas the respondent no.1 Shahid has examined himself as R1W1. In so far as the respondent no.3 Insurance company is concerned, they have not examined any witness despite opportunity in this regard. For the sake of convenience, the testimonies of all the witnesses are put in a tabulated form as under:
S. Witness Deposition
No.
Petitioner / Injured
1. Sh. Himanshu PW1 Sh. Himanshu is the petitioner who in his
(PW1) examinationinchief by way of affidavit Ex.PW1/A has
corroborated what he has been stated earlier in the claim petition. He has placed his reliance on the following documents.:
1. His medical treatment record are Ex.PW1/1 (Colly, running into 9 pages).
2. Medical bills are Ex.PW1/2 (Colly, running into 18 Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.6 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:12:33 +0530 pages).
3. Photocopy of his Aadhar Card is Ex.PW1/3 (OSR).
4. Photocopy of his driving license is Ex.PW1/4.
5. Photocopy of his education certificate is Ex.PW1/5.
In his cross examination by the Ld. Counsel for the respondents, the witness has deposed as under: That the witness has denied the suggestion that no accident had taken place involving the Car bearing registration No. DL10CA9244.
That the witness denied the suggestion that respondent no.1 has been falsely implicated by the police in the present case.
That the witness also denied the suggestion that he and his mother has sustained the injuries due to his own negligence while driving the scooty in a rash and negligence manner.
That the witness has further denied the suggestion that his father was not accompanying them on his separate scooty.
That he alongwith his parents are the permanent resident of Village Gopalpur, Sonipat, Haryana. That at the time of accident, he was studying in the first year of B.Sc. Nursing at Sonipat, Haryana as a regular student.
That the timings of his classes was from 9:00 am to 3:00 pm. That presently, he is studying in 3rd year of BSC Nursing.
That he does not have any documents to show that at the time of accident, he was earning Rs.10,000/ to Rs.15,000/ per month.
That he does not have any certificate of permanent disability.
That he does not have any documents to show the amount spent by him towards special diet, conveyance and attendant charges as stated by him in his affidavit.
That the witness has denied the suggestion that he has not incurred the amount as stated by him in his affidavit.
That he denied the suggestion that he himself and his mother was not wearing the helmets at the time of Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.7 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:12:40 +0530 accident.
That they had started from Nizampur, Delhi after meeting his maternal uncle.
That he was going ahead of his father who was following them in his separate scooty.
That at the time of accident, the speed of the scooty driven by him was about 20 to 25 KMPH.
That the distance between his scooty and his father's scooty was about 2/3 kila.
That the position of his scooty was on the left side of the road.
That he could not see the offending vehicle prior to the accident clearly.
That the offending car hit his right leg.
That the offending vehicle stopped at the place after the accident.
That the registration number of the offending vehicle was noted down by his father.
That he cannot say whether the helmets which he and his mother wearing fell down on the road or not.
That he cannot tell the make of said helmets.
That he does not know who removed him to the hospital, however, his father must have removed them to the hospital.
That he is not aware whether any police officials met him in the hospital or ever recorded his statement. Respondents witness:
2. Shahid (R1W1) R1W1 Shahid is the respondent no.1/ Driver of the offending vehicle, who in his examinationinchief by way of affidavit Ex.R1W1/A has corroborated what he has earlier stated in his written statement/ reply to the claim petition.
He has placed his reliance upon his Driving License which is Ex.R1W1/1 (mentioned as Ex.DW1/2 in the affidavit of evidence).
In his cross examination by the Ld. Counsel for the petitioner, the witness has deposed as under: That he is facing trial in the criminal case registered by the police after the accident in question on 26.08.2018.
That he is on bail in the said criminal case.
Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.8 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:12:48 +0530
That he has not filed any complaint against his false involvement to the police authority or Court. That when he was driving the vehicle i.e. car both the injured and the deceased who were on a two wheeler scooter, were not wearing helmet.
That he had left the spot of accident immediately after the accident.
That the witness has denied the suggestion that soon after the accident he did not notice whether the injured and deceased were wearing helmet.
That the police did not seize any helmet from the place of accident.
FINDINGS & OBSERVATIONS:
(10) I have heard the arguments advanced before me by the Ld. Counsels for the parties. I have also gone through the written memorandum of arguments filed on behalf of the petitioners and the respondent no.3 and gave my thoughtful consideration to their contentions. My findings on the various issues are under:
Issue No.1: Whether the claim petition of the petitioners is bad for nonjoinder of necessary parties as the owner and insurer of the scooty No. UP70T3855 have not been made parties?
(11) Onus of proving this issue was upon the respondent no.3 i.e. Go Digit General Insurance Co. Ltd. In its reply/ written statement the respondent no.3 has taken a preliminary objection that the petition is bad for nonjoinder of necessary parties since the owner and insurer of scooty bearing No. UP70T3855 are also the necessary parties to the proceedings who have not been made parties to the present petition.
Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.9 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:12:54 +0530 (12) In order to discharge the onus upon them, the Insurance Company has not examined any witness to prove the same. It has not been mentioned in the Written Statement of respondent no.3 Insurance Company as to who is the owner of the scooty bearing No. UP70T 3855 and who is the Insurer of the same and how they are the necessary parties to the present claim petition. In fact, perusal of the record shows that the accidental scooty has the registration no. DL8SBH8333. It appears that the respondent no.3 Insurance Company has abandoned the issue which is accordingly Disposed Off as not pressed.
Issue No.2: Whether the petitioner Himanshu had sustained Grievous Injuries in the road accident which took place on 26.08.2018 at about 2.40 PM at Bahad Rakba Kulasi Moor, Village Kanonda, Haryana due to rash and negligent driving of the vehicle bearing No. DL10CA 9244 by the respondent no.1 Shahid?
(13) Onus of proving the above issue was upon the petitioner. The case of the petitioner Himanshu is that on 26.08.2018 at around 2.40 PM, he along with his mother Smt. Rashmi was coming to his house by Scooty bearing registration No. UP70T3855 which was being driven by him at a normal speed and on the correct side of the road. When they reached near Bahad Rakba Kulasi Moor, Village Kanoda Haryana, a Car bearing registration No. DL10CA9244, which was being driven by its driver i.e. respondent no.1 at a very high speed, rashly, negligently, in a zigzag manner, without taking proper lookouts, violating the traffic rules and without blowing any horn, came from village Ladrawan side Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.10 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:13:02 +0530 and hit the Scooty bearing registration No. UP70T3855, with a great force. As a result of the impact Smt. Rashmi and Himanshu fell down on the road and sustained Grievous injuries.
(14) In so far as the respondent no.1 Shahid (Driver) and respondent no.2 (Rajan Dabla) are concerned, they have denied that the accident was caused due to rash and negligent driving on the part of the respondent no.1. According to the respondents no.1 and 2, their vehicle was duly insured with the respondent no.3 at the time of alleged accident and the respondent no.1 was having valid driving license, at the time of the alleged accident.
(15) The respondent no.3 M/s. Go Digit General Insurance Co. Ltd. concedes that the alleged offending vehicle bearing No. DL10CA 9244 was insured in the name of the respondent no.2 Rajan Dabla vide policy No. D000488186 issued for the period 12.06.2018 to 11.06.2019. The Insurance Company has taken all the statutory defence available to them and it is alleged that the deceased had sustained fatal injuries due to negligence on the part of his son while driving the scooty on which the deceased was travelling as pillion rider. (16) I have gone through the testimonies of the various witnesses and the records of the case including the certified copy of the charge sheet. It is evident from the certified copy of the chargesheet filed in the connected case bearing MACT No.281/2019 under the title Raj Narayan & Ors. Vs. Shahid & Ors. 6 that pursuant to the accident in question, an FIR bearing No. 589/2018 was registered at Police Station Sadar Bahadurgarh under Sections 279,337,338,304A IPC which Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.11 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:13:11 +0530 was registered on the basis of statement of Raj Narayan father of the injured Himanshu and husband of the deceased Rashmi. (17) In so far as the identity of the respondent no.1 Shahid as the Driver of the offending vehicle i.e. car bearing No. DL10CA9244 is concerned, the same is not disputed. In his statement under Section 165 of Evidence Act the respondent no.1 Shahid has admitted that he was the driver of the offending vehicle i.e. car bearing No. DL10CA9244 which was involved in the accident on 26.08.2018. According to him, the accident did not occur due to his rash and negligent driving as all of a sudden a scooter came in front of his car since there was a blind curve. The respondent no.1 has not denied his presence at the spot of accident. It is an admitted case of the respondent no.1 that he had left the spot immediately after the accident. I hereby hold that the identity of the respondent no.1 Shahid as driver of car bearing No. DL10CA9244 stands established.
(18) Coming next to the aspect of injuries caused to the injured Himanshu, the certified copy of the MLC of the injured has been placed on record according to which the injured Himanshu was brought to Brahm Shakti Sanjivani Hospital, Bahadurgarh on 26.08.2018 with alleged history of Road Traffic Accident at Kulasi MoorNahra Nahri Road, Bahadurgarh. As per the MLC there were following injuries on the body of the injured Himanshu:
1. Lacerated wound over right eyebrow approx. 3 x 0.5 cm.
2. Lacerated wound over middle forehead approx. 3 x 0.5 cm.
3. Lacerated wound over right side of face approx. 4 x 0.5 cm.
Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.12 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:13:19 +0530
4. Lacerated wound over chin 5 x 0.5 cm with active bleeding.
5. Lacerated wound on right shoulder approx. 8 x 4 x 0.5 cm.
6. Lacerated wound over scalp-occipital region 5 x 0.5 cm with active bleeding.
7. Swelling and tenderness and deformity over right thigh and lacerated wound over right hight anterior aspect approx. 4 x 2 cm with active bleeding.
8. Multiple deep abrasions over both side of chest.
9. Amputation right foot 4th toe and lacerated wound over right foot sole approx. 3 x 1 cm with active bleeding.
(19) Further, the perusal of Discharge Summary of JPN Apex Trauma Center, AIIMS, Delhi which is Ex.PW1/1 show that there was a fracture of left condylar; fracture of parasymphusis mandible and fracture of right femur. Further, there were parietal Dot Contusions and High Parietal Left (Parasaggital SAH). The medical record of the petitioner also reveals that the petitioner was operated and and implants were fixed in his femur bone. It is also evident that the petitioner was admitted in the hospital on 26.08.2018 and was discharged on 14.09.2018 and thereafter the petitioner received treatment as and OPD patient. Though it has not been specifically mentioned anywhere that the nature of injuries were Grievous, yet keeping in view the medical record of the petitioner and the parts of body where he sustained injuries, I hereby hold that the nature of injuries suffered by the petitioner are Grievous in nature.
Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.13 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:13:27 +0530 (20) Now coming to the aspect of Rashness and Negligence so attributed to the respondent no.1 Shahid, in order to prove his case the petitioner no.1 Himanshu has examined himself as PW1 wherein he has placed his reliance upon the following documents:
1. His medical treatment record which are Ex.PW1/1 (Colly, running into 9 pages).
2. Medical bills which are Ex.PW1/2 (Colly, running into 18 pages).
3. Photocopy of his Aadhar Card which is Ex.PW1/3 (OSR).
4. Photocopy of his driving license which is Ex.PW1/4.
5. Photocopy of his education certificate which is Ex.PW1/5.
(21) The petitioner Himanshu (PW1) has specifically explained that he was going ahead of his father who was following them on a separate scooty. According to him, at the time of accident the speed of scooty driven by him was about 2025 KMPH. He has specifically stated in his affidavit of evidence that the car bearing registration No. DL10CA 9244 was being driven by the respondent no.1 at a very high speed, rashly, negligently, in a zigzag manner, without taking necessary precautions, without proper lookouts, violating the traffic rules and without blowing any horn and hit the scooty in which accident Smt. Rashmi had expired and Himanshu had sustained Grievous Injuries.
Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.14 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:13:36 +0530 (22) The Mechanical Inspection Reports of both the vehicles
confirm that in so far as the offending vehicle i.e. DL10CA9244 is concerned, its Right side bumper, Head light and front glass were broken; front bonnet, front wheel guard & glass frame were bent and the front tyre & tube were cracked. Further, as per the Mechanical Inspection Report of accidental scooty bearing No. DL8SBH8333 its Right side front chasis, front wheel mudguard and side cover were bent. The manner in which the front tyre and tube of the offending vehicle were found cracked, speaks for itself and corroborates the version of Himanshu (PW1). The impact was so huge that Smt. Rashmi had expired in the accident whereas Himanshu had sustained Grievous Injuries.
(23) As a general rule, the petitioner is required to prove negligence but in certain cases where the injured is only able to prove the accident but is unable to prove the origin of negligence due to his physical disability, then under the given circumstances the principle of res ipsa loquitur if found applicable, can always be considered. Sir William Erle in the case of Scott vs. London & St. Katherine Docks Co. reported in (1865) 3 HC 596 applied the said principle and observed as under:
".....Where the thing is shown is under the management of the defendant or his servants and the accident is such, as in the ordinary course of things does not happen, if those who have the management use proper care. Then in the absence of any explanation by the defendant, it can be presumed that the accident arose for want of care. In such cases mere happening of the accident affords a reasonable Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.15 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:13:52 +0530 evidence in the absence of any explanation by the defendant that it was due to the negligence of the defendant......"
(24) This doctrine of res ipsa loquitur squarely applies to the facts of the present case as no evidence to the contrary has come on record. (25) Ld. Counsel for the Insurance Company has vehemently argued that the injured was not wearing any helmet at the time of the accident since the MLC of the injured shows that he had sustained injuries on his head region and hence, 25% of the compensation amount be deducted from the total amount of compensation towards contributory negligence. Reliance has been placed upon the testimony of respondent no.1 Shahid who in his crossexamination stated that both the injured and the deceased were not wearing helmets.
(26) I have considered the arguments raised before me. No doubt, as per the postmortem report, the deceased had sustained head injuries, yet there is nothing on record to show that there was any negligence on the part of the driver of the scooty namely Himanshu. I may also note that neither the photographs of the site have been placed on record nor there is anything in the chargesheet that police have lifted the helmets from the spot and none of the police officials who are the part of investigations have claimed that they recovered any helmets. I also note that even if this plea is taken as correct, then the contributory negligence on the part of Smt. Rashmi and Himanshu was only 10%. I hereby hold that out of the total compensation amount, there shall be a deduction of 10% towards Contributory Negligence.
Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.16 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:14:01 +0530 (27) In the light of the above, I hereby hold that the petitioner
Himanshu had sustained Grievous Injuries in the road accident which took place on 26.08.2018 at about 2.40 PM at Bahad Rakba Kulasi Moor, Village Kanonda, Haryana due to rash and negligent driving of the vehicle bearing No. DL10CA9244 by the respondent no.1 Shahid. (28) Issue is accordingly decided in favour of the petitioners and against the respondents.
Issue No.3: Whether the petitioner is entitled to any compensation?
If yes, as to what extent and from whom?
(29) Onus of proving this issue was upon the petitioner. In so far as the aspect of compensation is concerned, the petitioner is claiming a total compensation to the tune of Rs.15,00,000/ (Rupees Fifteen Lacs) whereas the respondent no.3 Insurance Company has not offered any amount.
(30) I have gone through the testimonies of the various witnesses examined by the parties and the documents on record. Coming first the to the medical expenses incurred by the injured Himanshu, he has placed on record the original medical bills which are collectively Ex.PW1/3, details of which are as under:
Sr. Details of Bill Date Exhibit No. Page No. Amount in No. Rs.
1 Tax Invoice of Implant 31.01.2020 Ex.PW1/2 1 60000 Nobel (Noble implant with all components with Bone Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.17 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:14:10 +0530 Sr. Details of Bill Date Exhibit No. Page No. Amount in No. Rs.
2 Medicines bill of Bhutani 25.01.2020 Ex.PW1/2 2 480 International Medicos 3 Cash Receipt of AIIMS 01.10.2020 Ex.PW1/2 3 60 for the Xray of Tooth 4 Cash Receipt of AIIMS 07.01.2020 Ex.PW1/2 4 30 for the Xray of Tooth 5 Medicine bill of Aastha 06.10.2018 Ex.PW1/2 5 506 Pharma 6 Medicine Bill of Durga 18.09.2018 Ex.PW1/2 6 515 Medical Hall 7 Delivery Challan of K.S. 04.10.2018 Ex.PW1/2 7 700 Enterprises 8 Cash receipt of Jai 03.10.2018 Ex.PW1/2 8 30 Prakash Narayan Apex Trauma Centre 9 Cash receipt of Jai 04.10.2018 Ex.PW1/2 9 60 Prakash Narayan Apex Trauma Centre 10 Cash receipt of Jai 03.10.2018 Ex.PW1/2 10 60 Prakash Narayan Apex Trauma Centre for Xray 11 Cash receipt of Jai 14.09.2018 Ex.PW1/2 11 725 Prakash Narayan Apex Trauma Centre 12 Cash receipt of Jai 13.09.2018 Ex.PW1/2 12 200 Prakash Narayan Apex Trauma Centre 13 Medicine bill of Asastha 09.09.2018 Ex.PW1/2 13 30 Pharma 14 Medicine bill of Astha 09.09.2018 Ex.PW1/2 14 108 Pharma 15 Final Bill of Brahm 26.08.2018 Ex.PW1/2 15 29030 Shakti Sanjivani Super Speciality Hospital Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.18 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:14:18 +0530 Sr. Details of Bill Date Exhibit No. Page No. Amount in No. Rs.
16 Tax Invoice of Speciality 30.08.2018 Ex.PW1/2 17 57564
Pharma
17 Tax Invoice of Curemed 06.10.2018 Ex.PW1/2 18 18700
Total 1,68,798/
(31) The respondents have not disputed the aforesaid bills nor they
have lead any evidence to the contrary. Therefore, I hereby hold that the petitioner Himanshu is entitled to the medical expenses to the tune of Rs.1,68,798/.
(32) Now coming to the Income of the injured Himanshu, the case of the petitioner is that he was a student of B.Sc. Nursing first year at the time of accident and was running a tution center under the name and style of Himanshu Tution Center and was earning Rs.10,000/ to Rs.15,000/ per month. In this regard, I may note that no document has been filed by the petitioner to show that he was running a Tution Center and was earning from the same. Though in his affidavit of evidence Ex.PW1/A the petitioner has claimed that he was running a Tution Center, yet when his financial statement was recorded he has specifically stated that his father is taking care of all his expenses and he was not earning. This being the background, there being no document or evidence to show that the petitioner was running a Tution Center, I hold that the petitioner has not been able to prove that he was earning Rs.10,000/ to Rs.15,000/ at the time of accident.
Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.19 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:14:26 +0530 (33) In so far as the aspect of Disfiguration is concerned, I may
note that the petitioner Himanshu in his Financial Statement has specifically stated that he had suffered serious injuries on his face and jaw and all his teeth had broken. According to him, an implant was also made in his femur bone and one finger (second finger) of his light leg had to be amputated. He has further stated that the doctors have advised him implanting of tooth and after 23 years he has to be operated for removal of the implant. According to the petitioner, the estimated expenses for tooth implant are around Rs.60,000/ and the remaining payment has to be made for the surgery for removal of implant. I may note that there is no document on record to show the above estimated expenses as claimed by the petitioner. However, it has been observed by this Court from the physical appearance of the petitioner when he appeared for recording his Financial Statement, that there is a disfiguration of his jaw and further treatment of jaw and teeth is required by way of implant. As per the OPD Card of AIIMS, New Delhi the X Ray was done wherein fracture of mandible was diagnosed after which his tooth have been removed which require implants but due to lock down on account of Covid19 Pandemic, it could not be done. I hereby hold the petitioner Himanshu entitled to Rs.50,000/ for disfiguration and Rs.1,00,000/ for future treatment.
(34) Coming next to the Disability of the injured, I note that though the petitioner Himanshu in his affidavit of evidence Ex.PW1/A has affirmed that he has sustained permanent disability, yet there is nothing on record to show that the petitioner Himanshu had Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.20 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:14:34 +0530 suffered any permanent functional disability. However, as per the medical record of the petitioner Himanshu, amputation of right foot 4 th toe was done, which fact has not been disputed. Though the extent of disability has not been proved but when the petitioner Himanshu had appeared before this Court for recording his Financial Statement, the only disability observed at present is regarding the disfiguration of jaw and breaking of teeth.
(35) In so far as the Special Diet expenses, Conveyance Charges and Attendant Charges are concerned, I may note that the petitioner has not placed on record any document showing any expenses incurred towards the same.
(36) 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 1,68,798/ Expenditure on Conveyance 10,000/ Expenditure on Special Diet 10,000/ Cost of Nursing Attendant 10,000/ Future Treatment 1,00,000/ Mental, Physical Shock, Pain & Sufferings 50,000/ Disfiguration 50,000/ Total 3,98,798/ Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.21 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:14:44 +0530 Contributory Negligence @ 10% 10% of 3,98,798 = 39,879/ Total Compensation 3,98,798 minus 39,879 = 3,58,919/ Round off: 3,58,920/ (37) Since, 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), it is held that the petitioner shall be entitled to interest @ 9% per annum from the date of Claim Petition i.e. from 09.04.2019 till realization of the amount.
Disbursement:
(38) The Financial Statement of the petitioner Himanshu was recorded on 19.02.2021 according to which the monthly expenses of his family are about Rs.30,000/.
(39) Keeping in view the above, I hereby direct that on realization of the award amount, a sum of Rs.58,920/ plus entire interest amount be released to the petitioner Himanshu and the balance amount of Rs.3,00,000/ (Rupees Three Lacs only) shall be put in Thirty 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 30 months respectively, with cumulative interest, in terms of the directions contained in FAO No. 842/2003 dated December 07, 2018. Besides the above said amount, amount of FDRs Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.22 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:14:51 +0530 on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank 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 with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal.
However, the petitioner Himanshu shall have liberty to seek the release of Rs.58,920/ plus entire interest amount from the bank located within the jurisdiction of this Tribunal itself. (40) The above FDRs shall be prepared with the following conditions as enumerated by the Hon'ble Delhi High Court in FAO No. 842/2003 under the title Rajesh Tyagi & Ors. Vs. Jaivir Singh & Ors. decided on December 07, 2018:
(i) The bank shall not permit any joint name to be added in the saving account or fixed deposit accounts of the claimants i.e. saving bank accounts of the claimants shall be an individual saving bank account and not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimants.
(iii) The maturity amount of the FDRs be credited by the ECS in the saving bank account of the claimant near the place of their residence.
Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.23 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:14:57 +0530
(iv) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(v) The concerned bank shall not issue any cheque book and/or debit card to claimants. However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank.
(vi) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque books and/or debit card have been issued and shall not be issued without the permission of the Court and the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
(41) In compliance of the directions given by Hon'ble High court in FAO No. 842/2003 dated December 07, 2018, Summary of the Award in the prescribed FormatIV B is as under: SUMMARY OF AWARD:
1. Date of Accident: 26.08.2018
2. Name of the Injured: Himanshu
3. Age of the Injured: 19 Years
4. Occupation of the Injured: Student
5. Income of the Injured: Not Applicable
6. Nature of Injury: Grievous Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.24 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:15:05 +0530
7. Medical Treatment taken by JPN Trauma Center, AIIMS the injured:
8. Period of Hospitalization: 26.08.2018 to 14.09.2018
9. Whether any permanent No disability? If yes, give details:
10. COMPUTATION OF COMPENSATION Sr. Heads Awarded by the claims No. Tribunal
11. Pecuniary Loss:
(i) Expenditure on Treatment 1,68,798/
(ii) Expenditure on Conveyance 10,000/
(iii) Expenditure on Special Diet 10,000/
(iv) Cost of Nursing/ attendant 10,000/
(v) Loss of Income Nil
(vi) Cost of artificial limb (if applicable) Nil
(vii) Any other loss which may require any 1,00,000/
special treatment or aid to the injured for the rest of his life
12. Non Pecuniary Loss
(i) Compensation for mental and physical shock 50,000/
(ii) Pain and Sufferings
(iii) Loss of amenities of life Nil
(iv) Disfiguration 50,000/
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, hardships, Nil disappointment, frustration, mental stress, dejectment and unhappiness in future life etc. Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.25 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:15:13 +0530
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and nature Nil of disability as permanent or temporary
(ii) Loss of amenities or loss of expectation of Nil life span on account of disability
(iii) Percentage of loss of earning capacity in Nil relation to disability
(iv) Loss of future income - (income x % earning Nil capacity x Multiplier)
14. TOTAL 3,98,798/ Contributory Negligence @ 10% 10% of 3,98,798 = 39,879/ TOTAL COMPENSATION 3,98,798 minus 39,879 = 3,58,919/ Round off: 3,58,920/
15. INTEREST AWARDED 9%
16. Interest amount upto the date of award 61,588/ (1 year, 10 Months and 27 days)
17. Total amount including interest 4,20,508/
18. Award amount released As per paragraph no.39
19. Award amount kept in FDRs As per paragraph no.39
20. Mode of disbursement of the award amount As per paragraph of the claimant(s) no.39
21. Next date for compliance of the award 09.04.2021 Liability to Pay:
(42) Since the offending vehicle was being driven by respondent no.1 Shahid, respondent no.2 Rajan Dabla is the registered owner and Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.26 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:15:21 +0530 the offending vehicle was insured with respondent no.3 Go Digit General Insurance Co., they all shall be jointly and severally liable to pay compensation to the petitioners but since the vehicle was duly insured with respondent no.3 i.e. Go Digit General Insurance Co. as on the day of accident, it is respondent no.3 i.e. Go Digit General Insurance Co. who is ultimately held liable to indemnify the insurance and to pay the compensation amount to the petitioners under the statutory liability.
RELIEF:
(43) Since the offending vehicle was insured with the respondent no.3 Go Digit General Insurance Co. therefore, the respondent no.3 is directed to deposit a sum of Rs.3,58,920/ with interest @ 9% per annum from the date of filing of Claim Petition i.e. 09.04.2019 till realization with the Civil Nazir of this Tribunal within 30 days under intimation to the petitioners failing which insurance company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
(44) The Insurer of the offending vehicle is 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 complete detail in respect of calculation of interest etc. within 30 days. (45) A copy of this judgment be sent to the respondent No.3 i.e. Go Digit General Insurance Co. for compliance within the time granted.
Himanshu Vs. Shahid & Ors., MACT No. 282/2019, Award dated 06.03.2021 Page No.27 of 28 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:15:27 +0530 Respondent No.3 i.e. Go Digit General Insurance Co. is further directed to give intimation of deposit of the compensation amount to the claimants and shall file a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount within 15 days of the deposit with upto date interest with a copy to the counsel for claimant namely Sh. P.K. Mishra Advocate, Chamber No.K56, Tis Hazari Courts, Delhi, Mobile No. 9871465730.
(46) Civil Nazir is directed to place a report on record on 09.04.2021 in the event of nonreceipt/deposit of the compensation amount within the time granted.
(47) 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.
(48) File be consigned to Record Room. Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.03.06 17:16:09 +0530 Announced in the open court (Dr. KAMINI LAU) Dated: 06.03.2021 PO, MACT01 (Central), Tis Hazari Courts, Delhi
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