Delhi District Court
Badshah S/O Sh. Ram Lautan vs Mohd. Afzal Khan S/O Mohd. Akhtar Khan on 6 May, 2015
IN THE COURT OF MS. RAVINDER BEDI : PRESIDING
OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL :
KARKARDOOMA COURTS : EAST DISTRICT : DELHI
MAC PETITION NO. 245/12
UNIQUE I.D. NO.02402C0 298982012
Badshah S/o Sh. Ram Lautan
R/o H.No. 37, Village Somrahi,
Distt. Gonda, U.P.
Also at : A342, South Ganesh Nagar, Delhi. ... PETITIONER
VERSUS
1. Mohd. Afzal Khan S/o Mohd. Akhtar Khan
R/o H. No. D - 487, West Vinod Nagar,
Delhi - 110 092. ... DRIVER
2. Mohd. Akhtar Khan S/o Mohd. Ishaq Khan
R/o D - 466, West Vinod Nagar,
Delhi - 110 092. ... OWNER
3. Tata AIG Insurance Co. Ltd.
Off. At 8A, 4th Floor, Milap Niketan,
Bahadur Shah Zafar Marg,
New Delhi - 110 002. ... INSURER
... RESPONDENTS
Represented by: Ms. Pooja Goel, Counsel for petitioner.
Respondents no.1 and 2 are exparte.
Mr. V. K. Gupta, Counsel for Respondent no. 3.
MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 1/14
Presented on : 26.09.2012
Reserved on : 02.05.2015
Date of Decision : 06.05.2015
A W A R D
1. The petitioner has filed the present claim petition under section 166 & 140 of M.V. Act claiming compensation of Rs.15,00,000/ for the injuries suffered by him in a road traffic accident on 24.08.2012.
2. The facts sans unnecessary details are that on 24.08.2012 at about 5.00 am, the petitioner was going on his cycle and as he reached near Ashirwad Enclave, I.P. Extension, a vehicle i.e. Hyundai I10 Car bearing no. DL7CL1496 (hereinafter referred to as the offending vehicle), driven by respondent no. 1 at a high speed and negligent manner, hit him. As a result the petitioner fell down and sustained Grievous injuries. He was taken to LBS Hospital. A case FIR No. 262/12, u/sec. 279/338 IPC was registered at Police Station Madhu Vihar, against respondent no.1.
3. It is stated that the respondent no.1 is the Driver, respondent no. 2 is the Owner and respondent no. 3 is the Insurer of the offending vehicle, therefore, they all are jointly and severally liable to pay the compensation to the petitioner.
MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 2/14
4. It is pertinent to mention here that respondents have not filed their Written Statement despite opportunity. However, from proceedings, it seems that the insurance company has not denied the factum of the offending vehicle insured with Tata AIG Insurance Company for the relevant period.
5. On the basis of pleadings, following issues were framed :
i) Whether petitioner has suffered injuries in road side accident on 24.08.2012 involving vehicle i.e. Hyundai Car I10 bearing registration No. DL7CL1496 being driven allegedly in a rash and negligent manner by R1?
ii) To what amount of compensation, if any, the petitioner is entitled to and from whom?
iii) Relief.
6. The petitioner examined himself as PW1 and filed his affidavit Ex.PW1/A wherein all the facts which were stated in the petition were reiterated. He relied upon documents i.e. DAR as Ex. PW1/1, medical bills as Ex.PW1/2, Voter I Card as Ex.PW1/4 and Photographs of injuries as Ex.PW1/5. Sh. Shekhranand, UDC, from GTB Hospital was examined as PW2, who has proved the documents i.e. Treatment Record and discharge Summary of the petitioner as Ex. PW2/1 (colly.). PW3 Sh. Randhir Singh, Clerk from CMO Office, Gonda, U.P. has proved the Disability MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 3/14 Certificate of petitioner identifying signatures of the doctors as Ex. PW3/1 and Entry Register as Ex.PW3/2. PW4 Dr. Vimal Kumar Baiswar, Sr. Consultant from District Hospital, Gonda, U.P. has proved the Disability Certificate as Ex.PW4/1.
7. This court has carefully heard Ld. Counsels for parties in the light of relevant statutory provisions of law. On the basis of submissions advanced and the evidence adduced, my observations on the issues are as follows :
ISSUE NO.1 :
Whether petitioner has suffered injuries in road side accident on 24.08.2012 involving vehicle i.e. Hyundai Car I10 bearing registration No. DL7CL1496 being driven allegedly in a rash and negligent manner by R1?
8. For succeeding in a claim filed under Section 166 of the M.V. Act, it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver. PW1 testified that while he was peddling his cycle at Madhu Vihar was hit by a Hyundai i10 Car bearing no. DL7CL1496, which was driven by respondent no. 1, at a high speed and rash manner. He testified that he suffered Grievous injuries and was taken to LBS Hospital. A case FIR No. 262/12, u/sec. 279/338 IPC was registered at Police Station Madhu Vihar, against respondent no.1. MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 4/14
9. This Court has considered the criminal proceedings including the FIR and the site plan. The FIR was registered on DD No. 10A and the police after investigation has filed Chargesheet against respondent no.1 under Sections 279/338 IPC in case FIR No. 262/12 Police Station Madhu Vihar, which is primafacie suggestive of negligence of respondent no.1 in driving the vehicle at the time of accident. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Hon'ble Supreme Court held :
"8. .... In a petition under Section 166 of the Act, the Petitioners were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder :
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the Petitioners. The Petitioners 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."
10.The report in Bimla Devi (Supra) was relied on by the Hon'ble Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 5/14 SCC 646."
11.In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors. : 2009 ACJ 287, the Hon'ble High Court of Delhi has held :
"..... On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under Sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not requires to be followed in this regard.
Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver".
12.In a recent judgment of Hon'ble Delhi High Court in United India Insurance Company Ltd. Vs. Deepak Goel & Ors., 2014 (2), T.A.C. 846 (Del.), it was held that in a case, where FIR is lodged, chargesheet is filed, then the documents mentioned above are sufficient to establish the fact that the driver of the offending vehicle was negligent in causing the accident particularly when MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 6/14 there was no defence available from his side. In case of Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh :
2009 (3) AD (Delhi) 310, an adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there was nothing on record to show that the petitioner had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case.
13.The issue thus stands decided in favour of petitioner holding that the accident happened as a result of negligent driving by respondent no.1, in which petitioner received grievous injuries. ISSUE NO.2 :
To what amount of compensation, if any, the Petitioner is entitled to and from whom?
14.PW1 testified that he was taken to LBS Hospital and from there he was shifted to GTB Hospital where he remained admitted from 24.08.2012 to 14.09.2012. He testified that he was advised by the doctors of G.B. Pant Hospital on 20.9.2013 to be referred to IHBAS for his neuro assessment. He suffered Contusion cerebri, a form of traumatic brain injuries, parietal contusion with subdural hematoma on the left side of brain. He underwent many surgeries. MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 7/14 The discharge summary shows the head injuries and the unstable condition in which, he was brought to the hospital. He was examined by the Medical Board, Distt. Hospital, Gonda, U.P.
15.In the case of Raj Kumar v. Ajay Kumar & Anr., MANU/SC/1018/2010, Civil Appeal No. 8981/2010 decided on 18.10.2010, following principles were laid down by the Hon'ble Supreme Court for determining compensation payable to road traffic accident victims :
i) The compensation payable to the claimant who is a victim of road accident should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equatable manner.
ii) Compensation payable in injury cases is payable under two heads. They are pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) (a) Loss of earning (and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future medical expenses. Nonpecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities and/or loss of prospects of marriage) and (vi) MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 8/14 loss of expectation of life (shortening of normal longevity).
iii) In routine personal injury cases compensation is awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation is granted under any of the heads (ii) (b),
(iii) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.
16.PW4 Dr. Vimal Kumar Baiswar, was examined to ascertain the nature of injuries, the disabilities suffered and its impact on the whole body of the patient. PW4 stated that though, he was one of the members of the Board who had prepared the disability certificate on the day on which, the petitioner was examined but could not tell as to which portion of the body, patient had suffered such impairment. PW4 was not able to tell as to the percentage of the permanent impairment caused to the patient either in relation to the whole body or to particular portion. He was unable to tell the non filling of the blanks inserted in the Disability Certificate Ex.PW4/1, nor could he tell whether patient's condition was likely to improve or whether it was non progressive in nature. He was unable to tell if the patient needed reassessment as the Disability Certificate is completely silent about it. Perusal of the Disability Certificate Ex.PW4/1 shows that it contains many blanks. It does MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 9/14 not have the full signatures / designation of the doctors, who were the members of such Board. Moreover, the Certificate is issued by CMO, Gonda and not by the designated Medical Disability Board. PW4 admitted candidly that he did not bring the examination report of patient nor could he tell anything about his disabilities. PW4 is a Senior Consultant at Hospital in Department of Orthopaedics, but the Certificate contains only initials of three members who are Physician, Eye Surgeon and Orthopaedic Surgeon respectively. The column in respect of whether the disability was permanent or temporary is left blank. The column in respect of whether patient required reassessment further is also left blank. Except for the address of patient, Ex.PW4/1 is a mere blank proforma. Clearly it seems to be a procured one, which cannot be considered for assessing the nature or extent of patient's disabilities and has to be simply ignored from consideration.
17.This court had personally examined the petitioner who stated that he was selling vegetables and earning about Rs.15,000/ p.m. He stated that he could not walk properly and his right hand was also not working. The record shows that the injuries have resulted in hampering considerably the mobility on the right side of the body. The injuries have resulted in many neuro cognitive symptoms in MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 10/14 the patient. Claimant is entitled for the compensation on account of loss due to the injuries. Considering these injuries, the period of treatment undergone by him and having looked into overall circumstances, he is awarded a compensation of Rs.60,000/ under the head pain and sufferings.
18.The petitioner has filed the medical bills of Rs.4,800/. He is thus awarded a compensation of Rs.4,800/ for Cost of Treatment.
19.The petitioner states that he was earning around Rs.15,000/ p.m. However, in the absence of any record in respect of his work, he is entitled to the salary as applicable to a unskilled workman as per minimum wages Chart, which is Rs.7,020/ as on the date of accident. Considering his period of treatment, he is awarded compensation for four months i.e. Rs.28,080/ (Rs.7,020.00 x 4) for Loss of Wages.
20.In Delhi Transport Corporation and Anr. v. Lalita, AIR 1981 Delhi 558, the Hon'ble High Court of Delhi has held that there cannot be any deduction if domestic help is obtained from a family member. This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP.No.762/11 dated 04.07.12. Therefore, on a lumpsum basis, the petitioner is awarded a compensation of Rs. MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 11/14 20,000/ for four months as Attendant's Charges.
21.The petitioner is also awarded compensation of Rs.15,000/ towards Special Diet and Rs.15,000/ for Conveyance Charges. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the petitioner :
1 Towards pain and sufferings Rs. 60,000.00 2 Towards servant/attendant for 3 months Rs. 20,000.00 3 Towards conveyance and special diet Rs. 30,000.00 4 Towards medical bills Rs. 4,800.00 5 Towards loss of earning for 3 months Rs. 28,080.00 Total = Rs.1,42,880.00 Therefore, in my opinion the petitioner is entitled to Rs.
1,42,880/ which shall be the just compensation to him.
LIABILITY
22.Since Insurance company has not denied the policy as on date of accident, therefore it is liable to pay the compensation amount. There being no evidence of violation of the policy conditions and there being nothing to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. It is the insurance company, which shall make good the compensation in terms of the accepted policy.
MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 12/14 A W A R D
23.Resultantly, the petition stands allowed. The Insurance Company is hereby directed to pay the compensation of Rs.1,42,880/ within one month to the petitioner with UCO Bank, Karkardooma Courts Complex, Delhi and the same be transferred to the petitioner's bank on moving application. Following the judgment of Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, the Insurance Company shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioner.
24.Out of total award amount, let an amount of Rs.42,880/ in favour of the Petitioner be released forthwith and remaining amount shall be deposited in his name in the form of One FDR for a period of three years with release of monthly periodical interest to him.
25.The interest on the aforesaid Fixed Deposit shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioner.
26.Withdrawal from the said Account shall be permitted to petitioner after due verification and Bank shall issue Photo Identity Card to petitioner to facilitate Identity.
27.The original Fixed Deposit Receipt shall be retained by the Bank in MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 13/14 safe custody. However, original Passbook shall be given to the petitioner with photocopy of FDR. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
28.No loan, advance, withdrawal shall be allowed on the said FDR without permission of this court.
29.Half yearly statement of account be filed by the Bank in this court.
30.On request of petitioner, Bank shall transfer the Savings Account to any other branch.
31.The award amount alongwith interest be deposited by Insurance Company, within 30 days in the court. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of The 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.10,000/.
File be consigned to record room.
Announced in the open Court
Dated : 6th May, 2015 (MS. RAVINDER BEDI)
PRESIDING OFFICER MACT (EAST)
KKD. COURTS, DELHI.
MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 14/14
Suit No. : 245/12
06.05.2015
Present: Proxy Counsel for the parties.
Vide separate order announced in the open Court today, the petition stands allowed. The Insurance Company is hereby directed to pay the compensation of Rs.1,42,880/ within one month to the petitioner with UCO Bank, Karkardooma Courts Complex, Delhi and the same be transferred to the petitioner's bank on moving application. Following the judgment of Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, the Insurance Company shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioner.
Out of total award amount, let an amount of Rs.42,880/ in favour of the Petitioner be released forthwith and remaining amount shall be deposited in his name in the form of One FDR for a period of three years with release of monthly periodical interest to him.
The interest on the aforesaid Fixed Deposit shall be paid monthly by Automatic Credit of Interest in the Savings Account of petitioner.
Withdrawal from the said Account shall be permitted to petitioner after due verification and Bank shall issue Photo Identity Card to petitioner to facilitate Identity.
The original Fixed Deposit Receipt shall be retained by the Bank in safe custody. However, original Passbook shall be given to the petitioner with photocopy of FDR. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary.
No loan, advance, withdrawal shall be allowed on the said FDR without permission of this court.
MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 15/14 Half yearly statement of account be filed by the Bank in this court.
On request of petitioner, Bank shall transfer the Savings Account to any other branch.
The award amount alongwith interest be deposited by Insurance Company, within 30 days in the court. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of The 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.10,000/.
List for reporting compliance on 01.07.2015.
(MS. RAVINDER BEDI) PO MACT (EAST)/DELHI/06.05.2015 MAC No.: 245/12 BADSHAH Vs. AFZAL KHAN & ORS. Page : 16/14