Delhi District Court
Md. Ayyub vs Sikander Gazi (Driver) on 3 July, 2014
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTHEAST DISTRICT : KKD COURTS : DELHI
MACT No. 440/11
Unique Case Identification No: 02402C0345742011
MD. AYYUB
S/o Sh. Abdul Hamid
R/o E16B216, New Seelam Pur, Delhi. ....... Petitioner
Versus
1. SIKANDER GAZI (Driver)
S/o Late Sh. Saleem Gazi
R/o LD A78New A4, Gali no. 8,
Chauhan Banger, Seelam Pur, Delhi.
2. NATIONAL INSURANCE COMPANY LTD.
Hero Honda Vertical 101106, BMC House,
Cannaught Place, Delhi01.
......... Respondents
Through :
Mr. Manas Kumar, Advocate for petitioner Mr. S. K. Tyagi, Advocate for respondent.
i) Date of Institution of Claim Petition : 17.11.2011
ii) Date when fixed for Orders : 03.07.2014
iii) Date of Decision : 03.07.2014
APPLICATION U/S 166 & 140 M.V. ACT 1988
FOR GRANT OF COMPENSATION
MACT NO. 440/11 Kiran Bansal
P.O. MACT (NorthEast), Delhi
Page 1/13
A W A R D
1. Petitioner/injured has filed the present claim petition under Sec. 166 & 140 of MV Act stating that on 21.10.2011 at about 9.00 PM petitioner alongwith his son in law were coming to Seelam Pur Market when petitioner reached in front of Neelam Dawakhana, New Seelam Pur at the same time a motorcycle bearing no. DL 5SAG 5586 which was driven by respondent no. 1 in a rash and negligent manner, came at a very high speed came from Brahampuri side and hit the petitioner and one another person namely Wahid as a result of which petitioner fell down on the road and sustained grievous injuries i.e multiple fractures on his left and right leg and right hand and various other injuries on all over his body . Thereafter, petitioner/injured was taken to GTB Hospital, where the petitioner was medically examined and MLC was prepared. FIR No. 416/11 u/sec 279/338 IPC was also registered at PS Seelam Pur in this respect. It is further stated that petitioner was 40 years of age and driver by profession.
2. Summons of the petition were issued to the respondents. WS was filed on behalf on behalf of respondent no. 1 . It has not been specifically denied that FIR no. 416/11 was registered at PS Seelam Pur against respondent no. 1.
WS was also filed on behalf of respondent no. 3 stating that vehicle bearing no. DL 5 SAG 5586 was insured with the respondent no. 3 vide policy no. 351007/31/11/6201385140 which is valid from 15.09.2011 to 14.09.2012.
MACT NO. 440/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 2/13
3. After completion of the pleadings, following issues were framed :
1. Whether petitioner Ayyub sustained injuries in motor accident caused by rash and negligent driving of vehicle no. DL 5SAG 5586 by respondent no. 1 on 21.10.2011 at about 9 pm at in front of Neelam Dawakhana, New Seelam Pur, Delhi within the jurisdiction of PS Seelam Pur? OPP
2. Whether petitioner is entitled to compensation? If so, to what amount and from whom?
3. Relief
4. Petitioner has examined himself as PW1 and has tendered his affidavit Ex.
PW 1/X and relied upon the documents i.e identity proof Ex. Pw 1/A, original copies of treatment records Ex. Pw 1/B , original copies of medical bills Ex.PW 1/C and attested copies of criminal case records Ex. PW 1/D. Sh. Sikander Ghazi is examined as R1W1 and Sh. Ashok Kumar examined as R3W1.
5. I have heard ld. counsel for petitioner and ld. Counsel for respondent no.3 and gone through the entire evidence on record carefully. My issue wise findings are as below :
ISSUE NO. 1
6. Whether petitioner Ayyub sustained injuries in motor accident caused by rash and negligent driving of vehicle no. DL 5SAG 5586 by respondent no. 1 MACT NO. 440/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 3/13 on 21.10.2011 at about 9 pm at in front of Neelam Dawakhana, New Seelam Pur, Delhi within the jurisdiction of PS Seelam Pur? OPP
7. Petitioner has examined himself and deposed about the facts in his affidavit which is exhibited as Ex. PW1/X. Disability certificate is also filed . During cross examination PW 1 has deposed that he alongwith his son in law went to Neelam Dawakhana on the date of accident and he was on foot at the time of accident. It is further deposed that site of Neelam Dawakhana is having large crowd around it. It is further deposed that motorcycle no. DL 5SAG 5586 was coming from opposite side and he was standing to purchase vegetables when a motorcyclist came at a very high speed and had hit him. It is further deposed that he remained admitted in hospital for 2 days and he remained on bed in his home and took treatment from the hospital. It is further deposed that he has also not filed any document to show that he was doing sewing job or of his income. It is further deposed that he has not filed any document with regard to his expenses incurred on special diet and conveyance.
8. Sh. Sikander Ghazi has examined himself as R1W1 has deposed that no accident was caused by him as alleged in the claim petition. It is further depsoed that he was standing in front of Neelam Medical Store in Chauhan Bangar, New Seelam Pur market at about 8.008.30 PM alongwith his vehicle bearing no. DL 5SAG 5586. It is further deposed that public had caught him submitting that he had caused the accident it has perhaps in the month of MACT NO. 440/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 4/13 OctoberNovember,2011 and thereafter, police officials were called and they had taken him to the police station Seelam Pur. It is further deposed that the motorcycle was not involved in any accident and he has not caused any accident and he is not liable to pay compensation. During cross examination he admitted that his name is mentioned as driver of the offending vehicle and he has not made any complaint before any authority regarding his false implication in the present case. On the date of alleged accident he was having a learning license bearing no. DL 13/LL/12808/1112 valid from 05.09.2011 to 04.03.2012 and was not having a permanent driving license. It is further deposed that at the time he was driving the motorcycle none else was present with him while driving the motorcycle.
9. Though, the driver/respondent no. 1 has stated that no accident occurred due to his vehicle but the mechanical inspection report of the vehicle DL 5J AG 5586 conducted on 21.10.2011 shows that head light were scratched and left side leg guard was also scratched and both these damages to the vehicle were fresh. No explanation regarding these fresh damages to the offending vehicle has come forward in the testimony of respondent no. 1. Also, there is no allegation of any previous enimity between the injured and the respondent no. 1 and so, there were absolutely no reasons for falsely implicating the respondent no. 1 by the injured.
10.In a judgment reported as National Insurance Company Ltd. Vs. Pushpa MACT NO. 440/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 5/13 Rana and other, 2009 ACJ 287 the Hon'ble High Court of Delhi has held that certified copies of criminal court, such as FIR, recovery memo and mechanical inspection report of vehicle are sufficient proof to reach the conclusion that driver was negligent. Proceedings under M. V. Act are not akin to proceedings in a civil suit and hence, strict rules of evidence are not required to be followed in this regard.
11.Therefore , from the statements of the PW 1 Md. Ayyub and in view of the record of the criminal case regarding the accident, it is proved that injured Md. Ayyub sustained injuries in the accident which occurred on 21.10.2011 due to rash and negligent driving of offending vehicle bearing no. DL 5 SAG 5586 driven by its driver i.e Respondent no. 1. This issue is decided accordingly.
ISSUE NO. 2
12. Whether petitioner is entitled to compensation? If so, to what amount and from whom?
13. It is stated by the petitioner in his statement as well as in chief affidavit that he suffered grievous injuries. Petitioner was allowed to get examined by the GTB Hospital for the purpose of assessing disability and the disability certificate was issued, which shows that the petitioner suffered both lower limbs to the extent of 22%. Further, as per the temporary disability certificate, the condition of the petitioner is progressive and is likely to improve and can MACT NO. 440/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 6/13 be reviewed after two years. Petitioner has not filed any evidence to show that petitioner has gone for reassessment of disability after two years as advised in temporary disability certificate. It appears petitioner's condition has improved. Counsel for petitioner submits that the petitioner does not press for permanent disability certificate. The entire medical record shows that the petitioner has sustained grievous injuries.
14.Though, petitioner has stated that he could not work for at least six months, due to the injury resulting from the accident, however, no such documentary evidence available on record. But as he had suffered grievous injuries, he must have taken rest for 6 months. Therefore, he is entitled to the loss of income for a period of 6months.
As far as income of the petitioner is concerned it is stated by petitioner in the claim petition as well as chief affidavit Ex.PW1/X that he was doing private job and was earning a sum of Rs. 9,000/ p.m. However, no proof regarding the occupation & income of the petitioner has been filed. Therefore, the income of the petitioner is considered in terms of minimum wages as applicable which on the date of the accident is @ Rs. 6,656/ p.m. As per the MLC, petitioner at the time of accident was aged about 40 years.
15. It is difficult to ascertain in exact terms as to how much the disability in right lower limb has affected the whole body of the petitioner. Considering the age of the petitioner, I am of the opinion that 11% of disability can be considered MACT NO. 440/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 7/13 in relation to whole body for the purpose of calculation of future loss of income for a period of two years as the certificate shows that he suffered temporary disability and reassessment was recommended after two years.
The law has been well settled that the compensation has to be awarded in personal injury cases under following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, he is further entitled to non pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries (2) loss of prospects of marriage & (3) loss of expectation of life.
16.Keeping in view the nature of injuries suffered by the Claimant and the fact that he was under constant treatment, he would have definitely needed an Attendant to look after him and the claimant is therefore, entitled to attendant charges. Petitioner has not filed any record to show that he has received help of special attendant however, some family member must have been attending him. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of this Court held that a victim cannot be deprived of compensation towards gratuitous services rendered by some of the family members, for the benefit of the tortfeasor. In the circumstances, where the injured had suffered multiple fractures on his left and right leg and right hand MACT NO. 440/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 8/13 and various other injuries on all over her body, it is deemed fit that a lump sum of Rs. 15000/ be awarded as compensation towards Attendant charges. Petitioner has not shown anything for spending money on special diet and conveyance but he must have gone for follow up check ups and must have been given special diet for speedy recovery. Thus, Rs. 7,000/ is awarded for special diet and Rs. 7,000/ towards conveyance charges.
17. Accordingly, the loss of future income due to temporary disability is calculated as follows :
Annual Income : Rs.6,656 X12 (annual) X 2 Years(temporary disability) = 1,68,799 / As per the disability certificate petitioner suffered 22% of the disability of right lower limb which is assessed as 22% in relation to the whole body.
Loss of income for two years.
Rs. 168799/ X 22%(i.e. % of annual income) = Rs. 37135.78/ = Rs. 37,136/ (rounded off) Accordingly, petitioner is held entitled to compensation under the following heads:
1. Compensation for loss of earning capacity ( for a period of two years during temporary disability) Rs.37,136
2. Compensation for loss of wages for 6 months. Rs.39,936 MACT NO. 440/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 9/13
3. Compensation for pain and suffering Rs. 40,000.00
4. Attendant charges Rs. 15,000.00
5. Special Diet Rs. 7,000.00
6. Conveyance Charges Rs. 7,000.00
7. Medical Bills Rs. 2,486.80 _________________ Total Rs.1,48,558.80 ___________________ Total Rs. 1,48,558.80 = Rounded off Rs. 1,48,559/
18. Liability The insurance policy has been admitted by the respondent insurance company but as per the insurance company the driver was not holding any valid D/L for driving any vehicle on the date of the accident. Respondent no. 2 has examined Sh. Ashok Kumar, Assistant , National Insurance Co. is examined as R2W1 who deposed that as per the terms and conditions of the insurance policy the driver of the motorcycle has violated the rule 3 Centre Motor Vehicle Rule 1989 as he was driving alone and has not made any arrangement of a person who must sit behind him and should be having a valid driving license. It is submitted by ld. Counsel for respondent no. 2 that as the driver of the offending vehicle was only holding a learner's licence, so the owner of the vehicle has violated the terms and conditions of the insurance policy. Ld. counsel for respondent no. 2 has relied upon the judgment United India Insurance Co. Ltd. Vs. Sujata MACT NO. 440/11 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 10/13 Arora & Ors. 2013T.A.C 29(S. C.), in which no liability was fastened upon the insurance company and on the basis of the above said judgment, has argued that as the driver in the present case also was not holding a valid DL, the insurance company should be exonerated completely and the liability, if any, is of the drivercumowner i.e respondent no. 1. I have perused the above said judgment and on careful perusal of the judgment, it is revealed that the said judgment is not applicable to the facts of the present case. In the above said judgment, owner of the vehicle had already paid the amount to the claimants and therefore, the insurance company was completely exonerated, however in the present case, no payment has been made by the respondent no. 1 to the petitioner.
The Hon'ble Supreme Court, in a judgment reported as National Insurance Company Co. Ltd. Vs. Kusum Rani, 2006ACJ 1336 has observed that where the driver did not possess a valid license to drive a commercial vehicle, Insurance Company may recover the amount paid from the owner by initiating recovery proceedings before executing court.
Therefore, in view of the judgment 2006ACJ1336(Supra) only recovery rights can be granted to the insurance company and the respondent no. 3, insurance company is liable to pay the award amount to the claimant and thereafter, may recover the same from the respondents no. 2 being registered owner of the vehicle. In view of the findings on the issues above, a compensation of Rs.1,48,559/ is granted to the petitioner alongwith interest at the rate of 9% per annum from the date of filing of the petition.
MACT NO. 440/11 Kiran Bansal
P.O. MACT (NorthEast), Delhi
Page 11/13
19. RELIEF
Accordingly, award is passed directing Respondent no. 2 National
Insurance Company Ltd. to pay a sum of Rs. 1,48,559/ by way of depositing cheque in the tribunal along with interest @ 9% per annum from date of filing of the petition (17.11.2011). In default, respondents no.3 shall be liable to pay penal interest on the award amount @ 12% p.a. for the default period. It is further ordered that 40% of the award amount shall be released to petitioner and the balance shall be kept in FDR in the name of petitioner, in a nationalized bank for a period of five years, with a facility to withdraw monthly interest.
The Bank shall further comply with following directions :
(a) Withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card of petitioner to facilitate identity.
(b) No cheque book be issued to the petitioner without the permission of the court.
(c) The original fixed deposit receipt shall be retained by the bank in the safe custody. However, the original pass book shall be given to the petitioner along with photocopy of the FDR.
(d) The original fixed deposit receipt shall be handed over to the petitioner on the expiry of the period of the FDR.
(e) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipt without the permission of the court.
(f) Half yearly statement of account be filed by the bank in the court.
MACT NO. 440/11 Kiran Bansal
P.O. MACT (NorthEast), Delhi
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(g) The petitioners shall furnish all the relevant documents for
opening of the saving bank account and fixed deposit account to the concerned Bank.
Attested copies of the award be furnished to the concerned parties for compliance.
Pronounced in Open Court on (KIRAN BANSAL)
03.07.2014 P.O. MACT(NorthEast)
KKD Delhi
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