[ENTITY].ManishGoyal&ors. IN THE COURT OF SH. [ENTITY], JUDGE, MACT-1 (CENTRAL), DELHI. Suit No. 735/11 MACT No. 357029/16 Unique Case ID No. DLCT01-000077-2009 1. Sh. [ENTITY] S/o Sh. Bansarsi Lal R/o 2361, Main Patel Road, New Delhi-110008. Petitioner VERSUS 1. Sh. [ENTITY] S/o Sh. Vijay Goyal R/o 1062/70, Deva Ram Park, Tri Nagar, Delhi-110035. Respondent No.1
(Driver)
2. [ENTITY]
Connaught Place/Moti Nagar, New Delhi.
Respondent No.2 (Insurer) [CASE NUMBER] PageNo.1of21 [ENTITY].ManishGoyal&ors.
3. Sh. [ENTITY] S/o Sh. Kundan Lal Goyal R/o 1062/70, Deva Ram Park, Tri Nagar, Delhi-110035.
Respondent No.3 (Owner) Date of filing of Claim Petition : 20.01.2009 Arguments heard on : 04.01.2018 Date of passing of Award : 16.01.2018 Present: Sh. [ENTITY], Advocate, Legal Aid counsel for petitioner.
Sh. [ENTITY], Advocate, counsel Sh. [ENTITY], Advocate, counsel for respondent No.3 AWARD:
1. Present claim suit has been preferred by the petitioner under [SECTION] & [SECTION] of the [ACT] (in short MV Act) claiming compensation of ` 5 lac in respect of grievous injury caused to the petitioner in a motor vehicular accident that had taken place on September 06, 2008 within jurisdiction of this Tribunal.
[CASE NUMBER] PageNo.2of21 [ENTITY].ManishGoyal&ors.
2. Facts in brief as emerged from the claim petition are that on September 06, 2008, petitioner [ENTITY] was going on foot from his residence at main Patel Nagar to Shadipur and at about 8:45 AM when he reached near Metro Pillar No. 225, Patel Nagar Road, New Delhi, a motor cycle bearing registration No. DL-4SB-H-2444 came at high speed in a rash and negligent manner and hit the petitioner. Consequently, he fell down and sustained injuries including severe internal head injury, due to which, he became unconscious. Injured was removed to Ram Manohar Lohia Hospital where he remained admitted till September 11, 2008. It was alleged that due to accident, petitioner sustained permanent disability and he is unable to speak and walk properly. In this regard, an FIR under [SECTION] [ACT] was got registered at PS Patel Nagar.
(i). It was alleged that offending vehicle was being driven by respondent no. 1 whereas it was registered in the name of respondent no. 3 and insured with respondent no.
3. Claim suit is contested by all the respondents.
(i) Respondent No.1 in the written statement took the plea that he was driving the motor cycle very carefully at the speed of 35-45 km/h but petitioner came in a very [CASE NUMBER] PageNo.3of21 [ENTITY].ManishGoyal&ors.
hurried manner without giving attention to the horn blown by him and hit in his motor cycle. Accordingly, it was alleged that the accident had taken place due to negligence of petitioner himself.
(ii) Respondent No.3 in the written statement took the plea that though the accident had taken place due to the negligence of petitioner himself, but police had lodged a false case with the collusion of petitioner. He further submitted that since the vehicle was insured with respondent No. 2, respondent no.2 is liable to pay compensation, if any.
(iii) Respondent No.2 in the written statement took the plea that the offending vehicle was not insured with it at the time of accident. It was submitted that Cover Note filed by owner/insured is a false and fabricated as it has only 7 numerical digits whereas insurance company always issues cover note with 10 numerical digits. Accordingly, it was alleged that respondent no.2 is not liable to indemnify the liability of owner of the vehicle.
4. On the basis of pleadings of parties, vide order dated September 05, 2009, following issues were framed:-
(i) Whether the petitioner had suffered grievous injuries in road traffic accident on 06.09.2008 due to rash and negligent driving of the vehicle bearing [CASE NUMBER] PageNo.4of21 [ENTITY].ManishGoyal&ors.
No. DL-4SB-H-2444 by respondent no.
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(iii) Relief.
5. In order to prove his claim, petitioner examined following witnesses:-
PW1 : Sh. [ENTITY], injured PW2 : Dr. [ENTITY], RML Hospital, proved the medical record of injured PW3 : Sh. [ENTITY], eye witness (i) In rebuttal, respondent No. 1 examined Sh.
[ENTITY] as R1W1 whereas respondent No.2 examined Sh. [ENTITY], Dy. Manager as R2W1.
6. On completion of evidence led by both the parties, statement of petitioner was recorded on September 20, 2017 in compliance of clause 26 of [CASE NUMBER] titled [PRECEDENT]. decided by Hon`ble High Court of Delhi on December 12, 2014.
7. I have heard rival submissions advanced by counsel for petitioner and respondents, perused the record [CASE NUMBER] PageNo.5of21 [ENTITY].ManishGoyal&ors.
carefully and gave my thoughtful consideration to their contentions.
8. My issue-wise findings are as under:-
Issue No. 1:
Whether the petitioner had suffered grievous injuries in road traffic accident on 06.09.2008 due to rash and negligent driving of the vehicle bearing No. DL-4SB-H-2444 by respondent no. 1?
FINDING:-
9. Learned counsel appearing for the petitioner contended that the accident had taken place due to rashness and negligence of respondent No.1 as he was driving his motor cycle at high speed.
(i) Per contra, counsel appearing for respondents contended that the accident had taken place due to the negligence of petitioner himself.
(ii) In order to establish rashness or negligence, counsel has have placed reliance on the testimony of PW1 & PW3. But the testimony of PW3 is not helpful to the petitioner as in his cross-examination, he testified that he had not [CASE NUMBER] PageNo.6of21 [ENTITY].ManishGoyal&ors.
witnessed the accident and reached the spot after the accident and found that petitioner was lying unconscious.
(iii) However, testimony of PW1 is relevant. In his examination in chief, PW1 testified that on September 06, 2008, he was going on foot from his residence to Shadipur and at about 8:45 AM when he reached near Metro Pillar No. 225, Patel Nagar Road, New Delhi, a motor cycle bearing registration No. DL-4SB-H-2444, which was being driven by respondent No.1, came at high speed in a rash and negligent manner and hit him. Consequently, he fell down and sustained injuries including severe internal head injury, due to which, he became unconscious.
(iv) Though PW1 was cross- examined, yet nothing could be extracted which shows that accident had not taken place due to rash and negligent driving of the offending motor cycle. Accordingly, Issue no. 1 is decided in favour of claimant/petitioner and against the respondents.
10. Issue No. 2:
Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
11. In this regard, the testimony of PW2 Dr. [ENTITY], Head of Department (Neuro Surgery) & Consultant, [CASE NUMBER] PageNo.7of21 [ENTITY].ManishGoyal&ors.
RML Hospital is relevant. He testified that petitioner was got admitted in the hospital on September 06, 2008 with the alleged history of road traffic accident. At the time of admission, he was unconscious. Since, he sustained head injury, he was transferred to Neuro Surgery Department. CT Scan of the head was done, which did not show any intracrainal (internal brain) injury. He was managed conservatively (without any operation) and was discharged on September 11, 2008. He visited the hospital as outdoor patient till December 15, 2009. He further testified that on September 19, 2011, patient got admitted in Neurology Department under Dr. [ENTITY] and was discharged on September 26, 2011. Petitioner was diagnosed as Pseudobulbar state (difficulty in speaking, swallowing, nasal regurgitation and difficulty in balancing in walking). He further testified that the possibility of above could be due to the injuries caused to him in the road traffic accident. The discharge summary dated September 11, 2008 is Ex. PW2/1 whereas discharge summary dated September 26, 2011 is Ex. PW2/2 and the medical documents are collectively Ex. PW2/3. Though PW2 was cross-examined by the counsel for respondents, but nothing could be extracted, which may cast any dent in the testimony of PW2.
(i) From the testimony of PW2, it can safely be culled out that due to the injuries caused to him in the accident, claimant remained admitted initially for six days and thereafter, he visited the hospital as outdoor patient till December 15, 2009. Further, it also becomes clear that due to the injuries [CASE NUMBER] PageNo.8of21 [ENTITY].ManishGoyal&ors.
caused to him in the accident, he had to remain admitted in the hospital for 8 days in September, 2011 and due to the said injuries, he was facing difficulty in speaking, swallowing, nasal regurgitation and difficulty in balancing in walking. But there is nothing on record, which may show that he had sustained any permanent disability.
(a). INCOME OF THE PETITIONER:
(i) During inquiry, petitioner has placed his ITR for the AY 2007-2008, showing that his total income was ` 1,06,150/- and the same is Ex. PW1/2. Accordingly, his monthly income is assessed at ` 8,846/- (` 1,06,150 12).
It is pertinent to state that he had not paid any tax as his income was not taxable at that time.
LOSS OF INCOME:
(i) As already stated that due to injuries, he had to remain admitted initially for six days and thereafter, for eight days in September, 2011 and he attended the hospital regularly as outdoor patient till December 15, 2009. Thus, it can safely be culled out that petitioner was not in a position to join his work effectively atleast till December 2009. Accordingly, 16 months loss of income is awarded to him @ ` 8,846/-, in total a sum of ` 1,41,536/- is awarded to him towards loss of income.
[CASE NUMBER] PageNo.9of21 [ENTITY].ManishGoyal&ors.
(b) Expenditure on Medical Treatment:
(i) Though petitioner has claimed that he had spent ` 50,000/- on his treatment, yet counsel fairly conceded that during inquiry, petitioner has only placed bills to the sum of ` 48,406/-. Since during inquiry, the bills produced by the petitioner are not challenged and no contrary evidence has been adduced to disprove the same, accordingly, a sum of ` 48,406/-is awarded to him towards medical expenses.
(c) CONVEYANCE CHARGES: (i) Though counsel has claimed ` 20,000/-
towards conveyance charges, yet he fairly conceded that claimant has no documentary evidence in this regard.
Admittedly, petitioner is the resident of Patel Nagar and he got treatment from RML Hospital. As already discussed that he attended the hospital regularly till December 2009 and thereafter, he remained admitted for 8 days in September 2011. Considering the number of visits paid to the hospital and distance between his residence and hospital, a sum of ` 5,000/- is awarded to him towards conveyance charges.
(d) SPECIAL DIET: (i) Though counsel has claimed ` 40,000/- under
this head, yet fairly conceded that petitioner has no [CASE NUMBER] PageNo.10of21 [ENTITY].ManishGoyal&ors.
documentary evidence in this regard. Though perusal of discharge summary reveals that no special diet was advised to the petitioner, yet considering the facts and circumstances of the case, it can safely be culled out that he must have taken some special diet for the purpose of fast recovery. Accordingly, a sum of ` 7,000/- is awarded to him under this head.
(e) NURSING/ATTENDANT CHARGES: (i) Though counsel claimed ` 8,000/- towards
attendant charges, yet fairly conceded that petitioner has no documentary evidence in this regard. Admittedly, petitioner had remained admitted in the hospital twice. Accordingly, it can safely be culled out that he must be attendant either by a family member or some paid attendant. Accordingly, a sum of ` 5,000/- is awarded to him under this head.
(f) COMPENSATION UNDER NON-PECUNIARY HEADS:-
Mental and Physical Shock
(i) Counsel has claimed ` 5 lac under this head.
As already discussed that petitioner met with an accident all of sudden without any fault and due to the accident, he not only sustained injuries, but had to remain admitted in the hospital twice and he also faced difficulty in speaking, swallowing, nasal regurgitation and balancing in walking. Though it is difficult to quantify the loss of mental and physical shock in [CASE NUMBER] PageNo.11of21 [ENTITY].ManishGoyal&ors.
monetary terms, yet considering the facts and circumstances of the case, a sum of ` 50,000/- is awarded to him under this head.
Pain and Suffering:
(i) Counsel has claimed ` 2 lac under this head.
From the above discussion, it can safely be presumed that petitioner must have suffered acute pain and suffering not only at the time of accident, but even during his treatment and even thereafter as in 2011, he was facing difficulty in speaking, swallowing, nasal regurgitation and balancing in walking. Though it is difficult to quantify the loss of pain and suffering in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 1 lac is awarded to him under this head.
Loss of amenities of life:
(i) Counsel has claimed ` 2 lac under this head.
But during inquiry, he failed to produce any cogent evidence in this regard. As already discussed that due to head injury, petitioner faced difficulty in speaking, swallowing, nasal regurgitation and balancing in walking. Thus, it can safely be presumed that he must have deprived from some amenities of life. Though it is difficult to quantify the loss of amenities of life in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 25,000/- is awarded [CASE NUMBER] PageNo.12of21 [ENTITY].ManishGoyal&ors.
under this head.
Loss of Disfiguration:
(i) Counsel has claimed ` 1 lac under this head.
But during inquiry, he failed to produce any documentary evidence to show that he had suffered any disfiguration due to injuries caused to him in the accident. In the absence of any cogent evidence, I am of the view that petitioner is not entitled to get any compensation under this head.
Loss of inconvenience/hardship/disappointment/mental stress etc:
(i) As already discussed that due to head injury, even in the year 2011, petitioner faced difficulty in speaking, swallowing, nasal regurgitation and balancing in walking. Thus, it can safely be presumed that he must have faced lot of inconvenience, hardship and mental stress. Though it is difficult to quantify such loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 1 lac is awarded to him under this head.
Loss of Earning Capacity due to Disability:
(i) Counsel has claimed 50% loss of earning capacity due to disability, yet he fairly conceded that there is no medical evidence on record to show that he had sustained [CASE NUMBER] PageNo.13of21 [ENTITY].ManishGoyal&ors.
any permanent disability. In the absence of any Disability certificate, I am of the view that petitioner is not entitled to get any compensation under this head.
12. As discussed above, the overall compensation is tabulated as under:
NAME OF HEAD AMOUNT (In ` ) Loss of Income 1,41,536 Medical Expenses 48,406 Conveyance charges 5,000 Special Diet 7,000 Nursing/Attendant Charges 5,000 Mental & physical shock 50,000 Pain & suffering 1,00,000 Loss of life amenities 25,000 Loss of inconvenience/hardship/ 1,00,000 disappointment/mental stress Total 4,81,942 Round off :- ` 4,82,000/-
(Rupees Four Lac Eighty Two Thousands Only)
(i) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of the petition i.e. January 20, 2009 till realization.
[CASE NUMBER] PageNo.14of21 [ENTITY].ManishGoyal&ors.
13. DISBURSEMENT:-
(i) Petitioner's statement was recorded on September 20, 2017 regarding his financial status, in terms of clause 26 of [PRECEDENT] decided by Hon`ble High Court of Delhi on December 12, 2014 wherein he deposed that he needs about ` 15,000/- per month for his household expenses.
(ii) In view of his statement, on realization, a sum of ` 1,82,000/- with entire interest shall be released to him forthwith and in terms of the directions contained in FAO No. 842/2003 dated December 15, 2017, balance amount of ` 3,00,000/- shall be put in 6 fixed deposits in the name of petitioner/claimant in a nationalized bank of equal amount ` 50,000/- each for a period of six months, one year, one & a half year, two years and so on in his name. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank near the place of his residence without the facility of cheque book and ATM. It is clarified that the amount shall be released to the petitioner only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM has been issued or if has been issued, same has been withdrawn and same shall [CASE NUMBER] PageNo.15of21 [ENTITY].ManishGoyal&ors.
not be issued without the prior permission of this Tribunal.
14. The above FDRs shall be prepared with the following conditions as enumerated by the Hon`ble High Court in [CASE NUMBER], titled [PRECEDENT] decided on December 15, 2017:-
(i) The bank shall not permit any joint name(s) to be added in the saving account or fixed deposit account of the victim i.e. saving bank account(s) of the claimant shall be individual saving bank account and shall 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 the bank to the claimant.
(iii) The monthly interest be credited by Electronic Clearing System(ECS) in the saving bank account of the claimant near the place of his residence.
(iv) The maturity amount of the FDR be credited by the ECS in the saving bank account of the claimant near the place of his residence.
(v) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(vi) The concerned bank shall not issue any cheque [CASE NUMBER] PageNo.16of21 [ENTITY].ManishGoyal&ors.
book and/or debit card to claimant. However, in case the debit card and/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 claimant so that no debit card be issued in respect of the account of claimant from any other branch of the bank. The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant shall produce the passbook with the necessary endorsement before the Tribunal for compliance.
LIABILITY TO PAY:-
15. Counsel for insurance company vigorously argued that since the Policy filed by respondent No.1 and 3 is fake, insurance company is not liable to indemnify the liability of insured. It was contended that the Cover Notes issued by the insurance company always bear 10 digits and the sample of such Cover Note is Mark R2W1/1 whereas Cover Note filed by respondent No.1 & 3 was having only 7 digits. Accordingly, it was urged that since Cover Note did not belong to insurance company, insurance company is not liable to indemnify the liability of insured.
(i) Per contra, counsel appearing for respondent No.1 & 3 contended that the Cover Note is of respondent no.2 and being layman, respondent no.1 & 3 had no reason to believe that since the Cover Note was having only 7 digits, it was not issued by the insurance company or it was fake one. It was contended that respondent No.1 & 3 had purchased the [CASE NUMBER] PageNo.17of21 [ENTITY].ManishGoyal&ors.
said Policy in the presence of R1W1 [ENTITY].
(ii) In this regard, the testimony of R1W1 & R2W1 are relevant.
(iii) R1W1 is the employer of respondent No.1 [ENTITY], who is son of respondent No.3. R1W1 in his examination-in-chief testified that respondent No.1 was working at his shop as a saleman and he used to come on his motor cycle bearing registration No. DL-4S-BH-2444, which was registered in the name of his father i.e respondent No.3. He further testified that respondent No.1 got insured the vehicle at his shop on May 7, 2008 at about 2:30 PM and paid a premium of ` 998/- in his presence in cash to the agent of insurance company i.e. [ENTITY] Though during his cross-examination, an attempt was made to show that R1W1 was not running any shop and respondent No.1 was not employed with him, but nothing could be extracted, which may show that respondent No.1 was not working with R1W1. Similarly, an attempt was made to show that R1W1 is not a trustworthy witness as he could not tell the name of agent and also failed to disclose who called him. But, to my mind, same is not sufficient to discard the testimony of the witness as the Cover Note available on record corroborates his version. During cross-examination, R2W1 admitted that the insurance company appointed its agents to collect premium and to issue Policy, but quickly added that such agents have general instructions to accept the [CASE NUMBER] PageNo.18of21 [ENTITY].ManishGoyal&ors.
premium by way of cheque, but he did not deny that agents were debarred to accept premium in cash. No doubt, the Cover Note produced by respondent No.1 & 3 is having 7 digits i.e. PC 0610682 whereas the Cover note produced by the insurance company is having 10 digits i.e PC 0611125502. But this is a technical distinction and this Tribunal cannot expect from general public to come to the conclusion by just seeing the number of digits appearing on the Cover Note that same is fake or genuine. Admittedly, till date insurance company has not taken any action against the alleged agent who sold the said Policy to respondent No.1 & 3.
(iv) From the Cover Note produced by respondent No.1 & 3, it is clear that same was issued on May 7, 2008 at 2:30 PM as deposed by R1W1 and the Policy was valid from May 7, 2008 to May 6, 2009. Admittedly, the accident had taken place on September 6, 2008. This establishes that respondent No.1 & 3 had purchased the said Policy much prior to the accident. Accordingly, it can not be said that respondent No.1 & 3 had fabricated this document after occurrence of the accident. If some agent of the insurance company had cheated respondent No.1 & 3 by selling fake Policy, I am of the view that insurance company cannot escape from its liability especially when insurance company failed to take any legal action against the agent, who sold the said Policy to respondent No. 1 & 3. Accordingly, I am of the view that insurance company is bound to indemnify the liability of insured.
[CASE NUMBER] PageNo.19of21 [ENTITY].ManishGoyal&ors.
(v) Since the offending vehicle belonged to respondent no.3 ([ENTITY]) and it was being driven by respondent No.1 ([ENTITY]) whereas same was insured with respondent no.2 ([ENTITY]), all are jointly and severally liable to pay compensation. Accordingly, Issue No.2 is decided in favour of petitioner and against the respondents.
RELIEF:
16. Since, the offending vehicle was duly insured with respondent no.2 ([ENTITY]), respondent No.2 is directed to deposit a sum of ` 4,82,000/- with interest @ 9 % per annum from the date of filing of petition i.e. January 20, 2009 till realization with [ENTITY] of this Tribunal within 30 days under intimation to the petitioner failing which the Insurance Company shall be liable to pay interest @ 12 % per annum for the period of delay beyond 30 days.
17. Insurance company, driver and owner of the offending vehicle are 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 from today.
[CASE NUMBER] PageNo.20of21 [ENTITY].ManishGoyal&ors.
(i) A copy of this judgment be sent to Respondent No.2 (Bajaj Allianz General Insurance
Company Ltd.), for compliance within the time granted.
(ii) [ENTITY] is directed to place a report on record on February 21, 2018 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iii) In terms of clause 31 & 32 of the judgment titled [PRECEDENT]. 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.
(iv) File be consigned to Record Room. Announced in open court on this 16th day of January, 2018 ([ENTITY]) Judge, MACT-1 (Central), THC, Delhi/sv [CASE NUMBER] PageNo.21of21