Delhi District Court
Khursed @ Jinda Hasan vs National Insurance Company Ltd. ... on 11 August, 2015
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTH-EAST DISTRICT : KKD COURTS : DELHI
MACT No. 93/13
Unique Case Identification No:- 02402C0093012013
KHURSED @ JINDA HASAN
S/o Sh. Md. Fulel
R/o H. No. 489, Block -B, Gokal Puri, Delhi 94,
Also at Village & P.O. Khekra, Distt. Baghpat, UP ....... Petitioner
Versus
1. NATIONAL INSURANCE COMPANY LTD. (Insurer)
RO -II, 2E/9, Jhandewalan Ext.
Karol Bagh, New Delhi.
2. SAVITRI SHIKSHA SADAN
R/o Village & PO - Katha, Distt. Baghpat, UP 250609
Through its Managing Director (Owner)
3. RAJPAL
S/o Sh. Kattar Singh
R/o Village &PO Saroorpur Kala
Distt. & PS Baghpat, UP (Driver)
......... Respondents
Through :
Mr. Munish Kumar Sharma, Advocate for petitioner. Mr. Kanwar Mohd. Rafi, Advocate for respondent no. 1.
i) Date of Institution of Claim Petition : 23.03.2013
ii) Date of Decision : 11.08.2015
MACT NO. 93/13 Kiran Bansal
P.O. MACT (NorthEast), Delhi
Page 1/10
APPLICATION U/S 166 & 140 M.V. ACT 1988
FOR GRANT OF COMPENSATION
AWARD
1. Petitioner/injured has filed the present claim petition under Sec. 166 & 140 of MV Act stating that occurred on 16.08.2012 when the injured alongwith his relative Mahbub was going to Baghpat from his house by the motorcycle bearing no. DL 5S AA 1604 as a pillion rider via Delhi to Saharanpur Road.
When petitioner reached near bus stop village katha, Baghpat in the meanwhile a bus bearing registration no. PB 08 AN 6051 came from Baghpat side, which was driven by respondent no. 3 in a rash and negligent manner and hit the petitioner. As a result of which, petitioner fell down on the road and sustained grievous injuries. Petitioner was taken to C. H. C., Baghpat , UP. Police Station Kotwali Baghpat, UP has registered the offence vide FIR No. 628/12 U/s 279/338/427/304-A IPC against the respondent no.3. It is further averred that petitioner was working as a kilen maker and earned Rs. 10,000/- p.m.
2. Summons were served on the respondents and Respondents no. 2 & 3 have filed their WS . In WS of respondent no. 3 it has not been specifically denied that FIR no. 628/12 was registered at PS Kotwali Baghpat, UP against respondent no. 1.
WS was also filed on behalf of respondent no. 1 stating that vehicle bearing no. PB 08AN 6051 was insured with the respondent no. 1 which is valid from 24.07.2012 to 23.07.2013.
3. After completion of the pleadings, following issues were framed :
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1. Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. PB 08 AN 6051 by respondent no. 3 on 16.08.2012 at about 8:00 am at Delhi to Saharanpur Road near Bus Stop village Katha, Baghpat within the jurisdiction of PS Kotwali, Baghpat, UP ?OPP
2. Whether petitioner is entitled to compensation? If so, what amount and from whom?
3. Relief
4. Petitioner has examined Smt. Momina and has tendered her affidavit Ex. PW 1/A and she also rely upon the documents i.e certified copy of criminal case record Ex. PW 1/1, refral slip is Ex. PW 1/ 2, copy of ration card Ex. PW 1/ 3 and election I card of Momina Ex. PW 1/ 4. petitioner has examined himself as PW 2 and has tendered his affidavit Ex. PW 2/A and has relied upon the documents i.e certified copy of criminal case record Ex. PW 1/1 , certified copy of MLC alongwith treatment record Ex. PW 2/ 1, disability certificate Ex. PW 2/3, medical bills Ex. PW 2/3, copy of election I card Ex. PW 2/ 4. Respondents have not led any evidence.
5. I have heard the counsels for both the parties and gone through the entire evidence on record carefully.
6. My issuewise findings are as below :
7. ISSUE NO.1 Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. PB 08 AN 6051 by respondent no. 3 on 16.08.2012 at about 8:00 am at Delhi to Saharanpur Road near Bus Stop village Katha, Baghpat within the jurisdiction of PS Kotwali, Baghpat, UP ?OPP
8. PW2, the petitioner has filed his chief affidavit reiterating the facts mentioned in the petition. Police Station Kotwali Baghpat, UP has registered the offence MACT NO. 93/13 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 3/10 vide FIR No. 628/12 U/s 279/338/427/304-A IPC against the respondent no.3. During cross examination PW 2 has deposed that he is eye witness of this accident and he met with an accident with school bus bearing no. PB 08AN 6051, when he was travelling with deceased by his motorcycle th motorcycle was at the speed of 30 km per hour.
9. The evidence of PW 2 is corroborated with copy of the charge sheet filed in the court and also the contents of FIR and PMR. It is also clear from the record that a charge-sheet is filed against respondent no.3 who is facing the criminal trial before the concerned judicial Magistrate. There is absolutely no evidence by respondents no.1 & 2 to disprove the version of PWs. After going through the entire material on record and the evidence of PW2, I am of the opinion that deceased Mehboob died in the accident caused by rash and negligent act of the driver of the offending vehicle bearing no. PB 08 AN 6051, respondent no.1.
To determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/337/304 A IPC or the certified copy of the FIR or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard.
Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on MACT NO. 93/13 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 4/10
the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
Further the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
" In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claiman were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
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10.Therefore, reading all the documents filed by the petitioner as a whole it is clear that respondent no. 1 was driving the vehicle in rash and negligent manner.11.ISSUE NO. 2
Whether petitioner is entitled to compensation? If so, to what amount and from whom?
12.It is stated by the petitioner in his statement as well as in chief affidavit that he has suffered grievous injuries. Petitioner was allowed to get examined by the GTB Hospital for the purpose of assessing disability and the disability certificate dated 25.06.2015 was issued. As per the contents of the disability certificate, petitioner suffers from the temporary disability of 24% of right lower limb and re-assessment was recommended after a period of six months. Again petitioner was allowed to get examined by the GTB hospital for the purpose of assessing disability and the disability certificate dated 12.01.2015 was issued. As per the contents of the disability certificate, petitioner suffers 24% permanent locomotor impairment in relation to right lower limb.
13. During cross examination PW 1 has deposed that he was working as a Kilen Maker and earned Rs. 10000/- per month. It is further deposed that he has filed medical bills of Rs. 55,907/- for grant of his medical expenses and he has not filed any bills regarding the expenditure incurred by him towards the conveyance and special diet and he has not filed any bills for having made payment to an attendant @ Rs. 4000/- per month. It is further deposed that there is no document to show that any attendant has been engaged for attending the daily routine work for the injured.
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14. As per the record available, the injured was initially admitted in C.H.C Baghpat, Up where the doctor operated his injuries due to TRA but due to the serious condition he was referred to GTB hospital . Taking into account the period the treatment of the patient and the nature of the injuries, he is entitled for loss of income for a period of 6 months.
15. As far as income of the petitioner is concerned, it is stated by petitioner in the claim petition as well as chief affidavit Ex. PW 2/A that he was working as a kilen maker any and was earning a sum of Rs. 10,000/- 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 in UP which on the date of the accident is @ Rs. 4527.59/- p.m. As per the MLC and disability certificate , petitioner at the time of accident was aged about 40 years. Applying the guidelines of the Hon'ble Supreme Court in the judgment reported as "Smt. Sarla Verma vs DTC 2009 AIR (SC) 3104", the multiplier applicable in the present case is 15, for the purpose of calculating future loss of income.
16.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 and occupation of the petitioner, and the fact that an important limb of the injured is almost rendered non-functional, I am of the opinion that 12% of disability can be considered in relation to whole body for the purpose of calculation of future loss of income.
17.The law has been well settled that the compensation has to be awarded in disability 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, MACT NO. 93/13 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 7/10 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.
18.Keeping in view the nature of injuries suffered by the Claimant i.e permanent disability of right lower limb 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 grievous injuries, it is deemed fit that a lump sum of Rs. 10,000/- 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. 5000/- is awarded for special diet and Rs. 5000/- towards conveyance charges. Medical bills of Rs. 55907/- has been filed. Petitioner is also entitled for the medical expenses to the tune of Rs. 55,907/- as per bills on record.
19. Accordingly, the loss of future income due to disability is calculated as below:
Rs. 4527.59 X 12 X 15= Rs. 8, 14,966/-
Rs. 8,14,966/- + Rs 4,07,483/- (50% future prospects) = Rs. 12,22,449 /- Rs. 12,22,449/- X 12% (disability) = Rs. 1,46,694/-
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20. Accordingly, compensation is calculated as below:
NON-PECUNIARY COMPENSATION Compensation towards pain and suffering Rs. 40,000/- Compensation towards amenities of life Rs. 10,000/- Compensation towards shortening of life span Rs. 10,000/- Total non-pecuniary compensation Rs. 60,000/-
PECUNIARY COMPENSATION Loss of Income for months(Rs. 4527.59 /- X 6 ) Rs. 27,166 /-(rounded off) Loss of future income due to permanent disability Rs. 1,46,694/-
Compensation towards salary of attendant Rs. 10,000/-
Compensation towards special diet Rs. 5,000/-
Compensation towards conveyance Rs. 5,000/- Medical bills Rs. 55,907/- Total Rs. 2,49,767/-
Thus, the total compensation amount is Rs. 3,09,767 /-.
21. Liability.
Respondent no. 1 is the insurance company which admittedly has issued a valid insurance policy of the offending vehicle. There is no evidence on behalf of respondent no. 1 to show that there was any violation of the rules and terms of policy by the respondents no. 2 & 3. Hence, I am of MACT NO. 93/13 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 9/10 the opinion that respondent no. 1 being insurance company is liable to pay the compensation on behalf of respondents no. 2 & 3.
25. Relief Award is passed directing Respondent no. 1 National Insurance Co. Ltd. to pay a sum of Rs.3,09,767/- to the petitioner along with interest @ 9% per annum from date of filing of the p8etition (23.03.2013). Payment is to be made by depositing cross cheque in favour of petitioner in the tribunal. The respondent no. 1 is directed to deposit the award amount along with interest in court within thirty days from today under written intimation to the petitioner. In case of default, further penal interest shall begin to accrue @ 12% p.a thereon, for each day default.
Attested copies of the award be furnished to the concerned parties from court for compliance.
Pronounced in Open Court on (KIRAN BANSAL)
11.08.2015 P.O. MACT(North-East)
KKD Delhi
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