IN THE COURT OF SH. [ENTITY] PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII, DWARKA COURTS: NEW DELHI 254/DAR/12 IN THE MATTER OF : 1. Shri [ENTITY] S/o Shri Ram Balak, R/o H. No. 280, Darshan Vihar, Burari, Delhi. Petitioner Versus 1. Shri [ENTITY] S/o Shri Soleman Joseph, R/o H. No. 152/9, Railway Colony, Shankar Market, New Delhi. 2. Shri [ENTITY] S/o Shri Sube Singh, R/o B88, Rama Public School Area, Dhansa Marg, Gopal Nagar, New Delhi. 3. [ENTITY]. Respondents Filed on : 13.08.2012 Reserved on : 12.12.2012 Decided on : 21.12.2012 J U D G M E N T:
1. This report of Investigating Police Officer (DAR) was filed in this Tribunal with regard to FIR No. 226/11 under [SECTION] of [ACT] and under [SECTION] of [ACT] registered at P.S. Kapashera, New Delhi pertaining to simple injuries suffered by Shri [ENTITY] in a Road Traffic Accident.
2. Respondent No. 1 is the Driver, Respondent No. 2 is the Owner and Respondent No. 3 is the Insurer of the Offending Vehicle.
3. Perusal of chargesheet, which is part of this report, reveals that on 26.12.2011, at about 8: p.m., petitioner was on duty at Dwarka under pass picket and was checking the traffic going towards Dwarka by putting barricades and blinker lights.
4. Around 4:00 a.m., one Tata 407 bearing No. HR555974, was passing through the barricades at a slow speed. At that time, one Maruti Indica Car bearing No. DL9TC0314, white colour, being driven by its driver in a rash and negligent manner, came and hit Tata 407 bearing No. HR555974 from behind as a result of which Tata 407 hit the barricades which fell on the claimant who suffered injuries and damage to his rifle.
5. In the car, there were four occupants who appeared under influence of liquor.
6. PCR was called at the site who took the occupants of offending vehicle to a hospital.
7. Claimant stated, as per chargesheet, that he suffered injuries due to rash and negligent driving of Respondent No. 1.
8. Notice of this D.A. Report was issued to all the parties i.e. Claimant, Driver, Owner and Insurer of the offending vehicle.
9. Only insurance company filed its written statement and stated that as the chargesheet filed by the police is under [SECTION] and [SECTION] of the [ACT], it shows that the driver of the offending vehicle was not holding a valid and effective Driving License and was under influence of liquor. Therefore, insurance company is not liable to pay any compensation to the petitioner.
10. However, it was admitted that Vehicle bearing No. DL1YC6362 (Passenger Carrying) Chassis No. MAT600434BPB181863 and Engine No. 1.4CRAIL08BYYW04129 is insured with the insurance company vide Policy No. 253310 for a period from 28.10.2011 to 27.10.2012 in the name of Shri [ENTITY] which covers the date of accident.
11. From the pleadings of the parties, following issues were: i. Whether the petitioner received injuries in an accident on 27.12.2011 caused by Respondent No. 1, while driving vehicle bearing No. DL 1YC 6362 rashly and negligently, owned by Respondent No. 2 and insured with Respondent No. 3? OPP ii. If yes, what is the amount of compensation which the claimant is entitled to receive and from which respondent? OPP iii. Relief.
12. Only petitioner entered in the witness box and stated that he was initially treated at Safdarjung Hospital and he was advised rest for one week.
13. He further stated that later on, he was treated at Lotus Hospital and Maternity Centre. Thereafter, he was treated at Jaipur Golden Hospital.
14. He stated that he has spent a sum of Rs. 30,000/ on his medical treatment, Rs. 15,000/ on conveyance and Rs. 10,000/ on special diet.
15. Petitioner deposed that he could not attend his duty for three months.
16. In the evidence of PW1, bills for purchase of medicines and treatment were proved as Ex.PW1/1 and salary slip was proved as Ex. PW1/2.
17. No other witness was examined by any other party.
18. Arguments were addressed by Shri [ENTITY], learned counsel for the petitioner and Shri [ENTITY], learned counsel for the insurance company.
19. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1:
20. Burden of proving this issue is on the petitioner.
21. For succeeding in a claim petition under [ACT], it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
22. This is sine qua non for getting the relief.
23. Petitioner himself is an Eye Witness to the accident. He has stated in his evidence by way of affidavit that on 27.12.2011, at about 4:00 a.m., he was on duty at Dwarka under pass picket and was checking vehicles on barricades and blinker lights.
24. At that time, offending vehicle had hit another vehicle from behind as a result of which barricades fell done on the petitioner resulting in injuries.
25. Respondent No. 1 and 2 have not crossexamined the petitioner and his testimony has gone unchallenged.
26. In the case of [PRECEDENT], the Hon'ble Gawhati High Court has observed as under: "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society"
27. This case was noticed by Hon'ble High Court of Delhi in the case titled as [PRECEDENT] where 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 is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
28. In the case of [PRECEDENT] dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In [ENTITY] and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under [SECTION] of the Act, the Claimants 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 [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 claimants. The claimants 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."
9. The report in [ENTITY] (Supra) was relied on by the Supreme Court in its latest judgments in [PRECEDENT] and [PRECEDENT]."
29. In the case of [PRECEDENT], the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in [PRECEDENT] (Supra). 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 [CASE NUMBER], pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of chargesheet under [SECTION], [ACT] 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 [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. 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."
30. Therefore, this issue is decided in favour of the petitioner and against the respondents. ISSUE NO. 2:
31. In the case of [PRECEDENT], 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. Non pecuniary 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) 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.
32. As injuries suffered by the petitioner are simple in nature, for Pain and Suffering, petitioner is granted a compensation of Rs. 7,500/.
33. There is no bill for purchase of medicines or payments given to the treating doctors, except for a bill of Rs. 468/ which is a receipt of chemist for purchase of medicines.
34. Therefore, for purchase of medicines, petitioner is awarded a compensation of Rs. 468/.
35. As per case sheet of Safdarjung Hospital, this petitioner was advised for bed rest for one week but petitioner has not produced any leave record to show that he has availed leave due to this accident.
36. Therefore, no compensation can be given to the petitioner for Loss of Wages.
37. However, petitioner is entitled to receive a compensation of Rs. 5000/ for Special Diet and Rs. 5000/ for Conveyance Charges.
38. Therefore, total compensation payable to petitioner would be Rs. 17,968/ which will be paid with interest @ 7.5% per annum (this is the rate of interest which is being awarded by Hon'ble High Court of Delhi at present) from the date of filing of this claim petition which is 13.08.2012 till its deposit in the Tribunal.
39. Next question is which respondent is liable to pay this compensation to the petitioner.
40. Police has filed chargesheet under [SECTION] and [SECTION] of [ACT].
41. D.A. Report filed by Investigating Officer has presumptive value.
42. Respondent No.1 and 2 have not led any evidence to rebut the presumption that Respondent No. 1 was not having any driving license at the time of accident.
43. Resultantly, compensation will be paid by the insurance company in the first instance with liberty to recover the same from Drive as well as Owner of the offending vehicle as per law by filing execution petition before this Tribunal.
44. Let compensation be deposited by insurance company within 30 days from today under intimation to the petitioner by registered post.
45. Copy of award be given dasti to all the parties.
46. File be consigned to the Record Room.
Announced in the Open Court On the 21st day of December, 2012 ([ENTITY]) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.