IN THE COURT OF SH. M. K. NAGPAL PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL PATIALA HOUSE COURTS, NEW DELHI IN THE MATTER OF: GAUTAM CHAUDHARY VS. V. HARIHARAN & ORS. DAR NO.01/2016 Sh. [ENTITY] S/o. Sh. Dashrath Prasad, R/o. Village Mallah Chakiya, PS Mufsil, District Baksar, Bihar. Injured Versus 1. Sh. [ENTITY], (DRIVER) S/o. Sh. Venkata Raman 2. Ms. [ENTITY], (OWNER) W/o. Sh. [ENTITY] Both R/o. 172, Block-L, (Even & Odd) Sarojini Nagar, New Delhi. 3. [ENTITY] (INSURER) Block 4-7th Floor, DLF Tower, 15, Shivaji Marg, New Delhi. Respondents
Date of institution : 05.01.2016 Date of framing of issues : 28.03.2016 Date of hearing arguments : 11.08.2017 Date of decision : 11.08.2017 AWARD/JUDGMENT
1. The claim for compensation in the present Detailed Accident Report (DAR) relates to the accident which had taken place on 20.06.2015 at about 10am in front of G. B. S. Ashoka Road Near [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.1 of 19 Subway, New Delhi between the motorcycle bearing registration no. DL-7SBD-3012 of the petitioner and the car bearing bearing registration no. DL-12CE-5257 being driven by R-1, owned by R-2 and insured with R-3.
2. As per the allegations made, the petitioner was going on his above motorcycle towards Noida when the above offending car being driven by R-1 had hit his motorcycle on its right backside and it resulted into fall of the petitioner on road. The petitioner claims to have received injuries on his right leg due to the said fall and further that he was taken to Dr. RML Hospital by R-1 and one other occupant of the said car. However, the petitioner did not get himself medically examined on that day and he got his MLC prepared from the said hospital and got registered the FIR only on 26.06.2016. He also claims that the above accident was caused due to rash and negligent driving of R-1.
3. The present DAR was presented before this Tribunal on 05.01.2016 and on being issued notices, appearances as well as WS/replies have been filed by all the three respondents.
4. R-1 & R-2 in their joint reply/WS have admitted the said accident and also the factum of taking the petitioner to hospital, but they have denied the allegation that the said accident took place due to rash and negligent driving of R-1. They also claimed that R- 1 possessed a valid driving licence and the offending car was duly insured with R-3 on the date of accident.
5. R-3/Insurance Co. in its reply has also admitted the factum of insurance of the said car, though it is claimed that the driving licence of R-1 was not valid and further that the accident was [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.2 of 19 caused due to rash and negligent driving of the petitioner himself.
6. I have heard the arguments advanced Sh.[ENTITY], Ld.Counsel for the petitioner and Ms.[ENTITY], Ld. Counsel for R-3 and have also perused the entire material available on record. However, none has turned up on behalf of R-1 & R-2 to address any arguments. My issue-wise findings are as under:-
"Whether the injured sustained injuries in the accident which occurred on 20.06.2015 at about 10.00pm, infront of GBS Ashoka Road Near Subway, New Delhi caused by rash and negligent driving of vehicle No. DL 12CE 5257 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
7. Petitioner in support of his case has filed on record his examination in chief by way of his affidavit Ex.PW1/A. In the said affidavit, he has specifically deposed about the above said accident having taken place in the above said manner and the same having been caused due to rash and negligent driving of R-
1. He has specifically deposed in the said affidavit that on the above day of accident, the offending car driven by R-1 had hit against his motorcycle on its backside with great force and the said car was being driven at a high speed and in a rash and negligent manner. He further deposed that he fell on the ground due to the said accident and sustained grievous injuries on his body, including fracture of right tibia. He further stated that he was first taken to Dr. RML Hospital after the accident and his MLC was prepared there and though he was admitted in the said hospital on [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.3 of 19 that day, but he was discharged on the same day. He also deposed that he was admitted in Kukreja Hospital, Mayur Vihar, Delhi for further treatment and remained hospitalized there from 26.06.2015 to 30.06.2015 and at the time of discharge, he was adviced by the doctors to attend the hospital from time to time and to take rich and high protein diet for early recovery. He further tendered on record, inter alia, his discharge summary as Ex.PW1/1, his other medical/treatment record as Ex.PW1/2 and his original medical bills as Ex.PW1/3 (colly.).
8. During his cross-examination conducted on behalf of R-1 & R-2, though he was suggested that he had consumed alcohol and was drunk at the time of accident, but these suggestions were specifically denied by him to be wrong. Even otherwise, there is no documentary document or material on record to draw such an inference regarding the petitioner being under the influence of alcohol at the time of above accident.
9. Nothing material could be extracted out by Ld. Counsel for the respondents during his cross-examination to challenge or controvert his above depositions made regarding the manner of accident or that the same has not taken place due to the rash and negligent act of R-1 in driving the above offending car. Even no suggestions are found to have been given to the petitioner by Ld. Counsel representing R-1 & R-2 that the said accident did not take place due to rashness and negligence of R-1 or that it took place due to fault of the petitioner himself. Though there is some discrepancy in the evidence led on record with regard to the claim made by the petitioner in his above affidavit about taking treatment [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.4 of 19 from RML hospital on the day of accident, but the same is not found sufficient to draw such an inference about the petitioner being under influence of liquor at the time of accident. The refusal of petitioner could well have been generated by the good gesture of R-1 and his companion in taking him to hospital and giving their mobile number, as stated in the DAR. Moreover, R-1 has even not stepped into the witness box to substantiate his version of the accident and due to this lapse, an adverse inference is also required to be drawn against him in view of the judgment in the case of [PRECEDENT]
10. Besides above, the petitioner has also relied upon the DAR filed in the present matter as Ex.PW1/5 (colly.), which includes and consists of a copy of the charge-sheet filed against R-1 for commission of offence punishable under [SECTION] [ACT] in respect of the said accident, arrest memo of R-1 and mechanical inspection reports of both the above vehicles etc. The damages observed in the said mechanical inspection reports of these two vehicles are found to be as per the depositions made by the petitioner with regard to the manner of accident. All these documents also duly substantiate the version of the accident, as narrated by the petitioner.
11. Therefore, in view of above discussions, it is held that the oral evidence led by the petitioner on record is duly substantiated by the documentary evidence and the same is sufficient to hold that the above accident resulting into grievous injuries on the person of the petitioner was caused by the above offending car [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.5 of 19 bearing no. DL-12CE-5257 being driven by R-1, in a rash and negligent manner. The issue no.1 is accordingly decided in favour of the petitioner and against the respondents no.1 to 3. ISSUE NO.2 "Whether the injured is entitled for compensation? If so, to what amount and from whom? OPP
12. As the issue no.1 has been proved in affirmative and in favour of the petitioner, the petitioner has become entitled to be compensated for the injuries suffered in the above accident, but the computation of compensation and liability to pay the same are still required to be decided.
13. In terms of provisions contained in [SECTION] of the [ACT] the compensation which is to be awarded by this tribunal is required to be 'just'. In the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as non- pecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non-pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses incurred by the claimant towards his treatment, special diet, conveyance, cost of nursing/attendant, loss of income/earning capacity etc. and the non-pecuniary damages generally include the compensation for the mental or physical [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.6 of 19 shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or compensation can put the injured/claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work in calculating the different amounts which the claimant may be entitled under the different heads of compensation.
14. Here, it would be necessary to record some of the important judgments on the subject. In case of [PRECEDENT] Pest Control(India) Pvt. Ltd., AIR 1995, SC 755 the Hon'ble Supreme Court has observed as under:
"Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money;
[ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.7 of 19 whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. Pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning or profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury, the claimant may not be able to walk or run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
15. In [PRECEDENT], the Hon'ble Supreme Court dealt with the case of disability of an engineering student. The Hon'ble Supreme Court observed that while awarding compensation in personal injury cases, an attempt should be made to put the injured in the same position as he was as far as money is concerned. In para 9 of the report, the Hon'ble Supreme Court held as under:
[ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.8 of 19 "9. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can.
Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered"
16. In [PRECEDENT] also, Hon'ble Supreme Court has held as under :
"4 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 equitable manner. The court or tribunal have to assess the damages objectively and exclude from consideration any speculation or fancy,though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.9 of 19 compensated for his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as mush as he used to earn or could have earned as much as he used to earn or could have earned".
17. In light of the above legal propositions, the amount of compensation which can be considered to be 'just' in the opinion of this tribunal shall be as under:-
i) Medical or Treatment Expenses As per the depositions made by the petitioner in his affidavit Ex.PW1/A, he remained hospitalized in Kukreja Hospital, Mayur Vihar, Delhi during the period from 26.06.2015 to 30.06.2015 and at the time of discharge, he was advised by the doctors to continue his treatment. He claims to have spent more than Rs.3,00,000/- on his medicines and treatment. He has also tendered on record his treatment record as Ex.PW1/2 (colly.) and medical bills as Ex.PW1/3 (colly.).
However, as per the medical bills summary filed on record by Ld. counsel for petitioner himself, the same are found only to the extent of Rs.1,27,748/- and this summary of medical bills is even not disputed by the Ld. counsel for R-3. Medical bills mentioned in detail in the above said summary and the medicines or treatment taken by the petitioner are found to be corresponding to his record filed on record and hence, the petitioner is held entitled to the above amount of Rs.1,27,748/- towards his treatment and medical expenses under this head.
[ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.10 of 19 ii) Loss of actual earnings
The petitioner in his above affidavit Ex.PW1/A has claimed that he is a skilled worker of aluminum and glass on contract basis and at the time of accident, he was earning more than Rs.20,000/- per month. He has also claimed that due to the above said accident, he is enable to do his job work till date and has thus, suffered huge financial losses as a result of the above injuries.
However, there is no documentary evidence on record to substantiate the claim being made by the petitioner regarding the nature of his work or the alleged earnings therefrom or even to show that he was doing or engaged in any kind of skill work. Though during his examination, he also claimed himself to be a matriculate, but he has not filed on record any document even to substantiate his this claim. In the absence of that, his loss of earnings is required to be calculated only on the basis of minimum wages for an unskilled worker in force at the relevant time of accident.
Though, the petitioner has remained hospitalized only for a period of 5 days, but his medical treatment record brought in evidence spreads over mainly the months of June and July, 2016, except one or two OPD consultation slips of the subsequent period. However, still keeping in view the nature of injuries suffered by the petitioner and the part of body on which the same have been suffered, it can be legitimately presumed that he might not have been in a position to attend his work or job for a period of around three months. Hence, the petitioner under this head is held entitled for loss of earnings to the extent of minimum wages for an [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.11 of 19 unskilled worker @ Rs.9,048/- for a period of three months, i.e. Rs. 27,144/- in total (Rs.9048 x 3).
(iii) Mental or Physical Shock, Pain and Sufferings As already stated above that the petitioner has suffered fracture of his right proximal tibia, besides the other injuries, and he had been under treatment for the said injuries for a considerable time, besides his above hospitalization for a period of around five days in the Kukreja Hospital, Mayur Vihar, New Delhi. He has specifically deposed in his affidavit Ex. PW1/A not only about the injuries suffered by him, but also about the treatment taken by him for the said injuries. He further stated that due to said injuries, he is unable to walk properly and he can not even run, drive, squat etc. and also that he suffered a lot of physical and mental pain because of the said injuries, besides social and financial losses. Though, it is not possible to compensate him for the pain and sufferings which he might have actually undergone because of the said injuries, but as already discussed above, an effort has to be made to compensate him for the same with a just amount of compensation. It is necessary to mention here that though the examination of petitioner by the Medical Board of RML Hospital for determination of his disability was also directed by this Tribunal on his application, but the petitioner did not report for the same and the only inference which can be drawn therefrom is that he has not suffered any permanent mental or physical disability out of the above said injuries. Therefore, considering the nature of injuries suffered by the petitioner and the treatment taken by him, an amount of Rs.30,000/- is being awarded to the [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.12 of 19 petitioner towards pain and sufferings suffered by him because of the above injuries and also towards the physical and mental shock caused by the same.
(iv) Conveyance and Special Diet & Loss of Amenities In his affidavit Ex.PW1/A, the petitioner has also claimed that at the time of his discharge from the hospital, he was advised, inter-alia, to take rich and high protein diet for early recovery. Though, he claims to have spent more than Rs.300/- per day on special diet for more than one year and further an amount of Rs.20,000/- on his conveyance, but he has not filed on record any document even to substantiate his these claims. Still, keeping in view the nature of injuries suffered by him and the duration of his treatment, the requirement of special diet and conveyance is felt necessary and the petitioner is held entitled to an amount of Rs.10,000/- each towards these requirements. Besides, he is also being granted another amount of Rs.10,000/- towards the loss of amenities during the above period of his immobility caused by the above said injuries. The petitioner is thus held entitled to an amount of Rs.30,000/- under this head.
(v) Attendant charges Though, the petitioner also claims in his above affidavit to have engaged an attendant to look after him during his above period of injuries on a monthly payment of Rs.6,000/- per month and for a duration of six months, but here also he has not brought on record any documentary or other oral evidence to substantiate this claim. However, still keeping in view the fact that he might have required the services of an attendant during the period of his [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.13 of 19 immobility for around three months because of the said injuries and he might have availed the gratuitous services of any of his family members in doing his day to day activities. He is also being awarded an amount of Rs.15,000/- under this head.
IN VIEW OF THE ABOVE THE PETITIONER IS HELD ENTITLED TO THE FOLLOWING AMOUNTS OF COMPENSATION.
Sr.No. Heads Amount awarded (i) Expenditure on treatment Rs.1,27,748/- (ii) Loss of actual earnings Rs. 27,144/-
(iii) Mental or Physical Shock, Pain and Rs. 30,000/-
Sufferings
(iv) Conveyance, special diet & loss of Rs. 30,000/-
amenities (v) Attendant Rs. 15,000/- Total Compensation Rs. 2,29,892/-(Rs. Two Lacs Twenty Nine Thousand Eight Hundred Ninety Two only) Interest There is nothing on record to withhold the interest. Hence the petitioner is awarded interest @ 9% per annum with effect from the date of filing of DAR i.e.05.01.2016 till realization.
The petitioner is thus awarded a sum of Rs. 2,29,892/- (Rs. Two Lacs Twenty Nine Thousand Eight Hundred Ninety [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.14 of 19 Two only) with interest @ 9% per annum from the date of filing of DAR i.e. 05.01.2016till notice of deposit is given to the petitioner, alongwith a copy thereof to his counsel. The award amount shall also include the amount of interim award, if any, already passed in his favour.
RELEASE Entire amount with interest be released to petitioner. LIABILITY R-3 has not proved any violation of the terms and conditions of insurance policy. Hence, R-3 is directed to deposit the above award amount, alongwith interest @ 9% per annum, by way of crossed cheque/DD in name of the petitioner within 30 days from today failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, R-3 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court of Delhi in the case of [PRECEDENT], this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5000/-.
R-3 shall inform the injured and his counsel through registered post that the cheques of the awarded amount are being deposited so as to facilitate him to collect his cheques.
A copy of this award be given to the parties free of cost. Further Nazir is directed to maintain the record as per the directions given by the Hon'ble Delhi High Court in the judgment titled as [PRECEDENT]. passed in FAO [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.15 of 19 no.842/2003 dated 12.12.2014 which has been circulated vide [CASE NUMBER] dated 14.01.2015.
The particulars of Form-IV of the Modified Claims Tribunal Agreed Procedure as under:
1. Date of Accident : 20.06.2015
2. Date of intimation of the accident by :
the Investigation Officer to the 21.06.2015 Claims Tribunal.
3. Date of intimation of the accident by :
the Investigating Officer to the Not Available Insurance company.
4. Date of filing of Report under :
[SECTION] [ACT] before the Not Available Metropolitan Magistrate.
5. Date of filing of Details Accident :
Report (DAR) by the Investigating 05.01.2016 Officer before Claims Tribunal.
6. Date of service of DAR on the :
05.01.2016 Insurance Company.
7. Date of service of DAR on the :
05.01.2016 claimant(s).
8. Whether DAR was complete in all :
Yes respects?
9. If not, state deficiencies in the DAR :
10. Whether the police has verified the :
Yes documents file with DAR?
11. Whether there was any delay or :
DAR has been filed after deficiencies on the part of the around five months of Investigating Officer? If so, whether accident.
any action/direction warranted?
12. Date of appointment of the :
Designated Officer by the Insurance Details not provided Company.
[ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.16 of 19
13. Name, address and contact number :
of the Designated Officer of the Details not provided. Insurance Company.
14. Whether the Designated Officer of :
the Insurance Company submitted Within time.
his report within 30 days of the DAR?
15. Whether the Insurance Company :
admitted the liability? If so, whether the Designated Officer of the No statutory defence but Insurance Company fairly computed offer not filed. the compensation in accordance with law.
16. Whether there was any delay or :
deficiencies on the part of the Designated Officer of the Insurance No Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) :
of the offer of the Insurance Offer not made Company.
18. Date of the award : 11.08.2017
19. Whether the award was passed with :
No the consent of the parties?
20. Whether the claimant(s) examined :
at the time of passing of the award No to ascertain his/their financial condition?
21. Whether the photographs, :
specimen signatures, proof of residence and particulars of bank Dispensed with as entire account of the injured/legal heirs of amount released the deceased taken at the time of passing of award?
22. Mode of disbursement of the award :
Entire amount released.
amount to the claimant(s).
[ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.17 of 19
23. Next date for compliance of the :
14.11.2017 award.
File be consigned to Records after necessary formalities. A separate file be prepared for compliance report and be put up on 14.11.2017.
Announced in the open court. ([ENTITY]) on 11.08.2017 PO/MACT, New Delhi. [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.18 of 19 DAR No.D-01/16
[ENTITY] Vs. [ENTITY] & Ors.
11.08.2017 Present: Ld.counsel for petitioner.
Clarifications sought and same have been addressed. Be put up for consideration/order after lunch.
([ENTITY]) Judge/MACT, New Delhi 11.08.2017 After lunch Present: None.
Vide separate order an award for a sum of Rs. 2,29,892/- (Rs. Two Lacs Twenty Nine Thousand Eight Hundred Ninety Two only) alongwith interest, as directed therein and also including the amount of interim award, if any, already passed, has been passed today in favour of petitioner.
R-3/insurance company has been directed to comply with the award.
The main file be consigned to Records after completing the requisite formalities.
The separate file prepared in terms of directions contained in the award, be put up on 14.11.2017 for reporting compliance.
([ENTITY]) Judge/MACT, New Delhi 11.08.2017 [ENTITY] Vs. [ENTITY] & Ors. [CASE NUMBER] Page no.19 of 19