-1- IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI (MACT No. 19/11) 1) [ENTITY] (Through his natural guardian) Sh. [ENTITY] S/o. Sh. Ved Prakash Jindal R/o. 1-6/2, 3rd Floor, Sector-16, Rohini, Delhi Petitioner Versus 1) Sh. [ENTITY] S/o. Sh. Kewal Kishan R/o. 22/93, Sector-7, Rohini, Delhi 2) ICICI Lombard General Insurance Co. Ltd. Office At : 3rd Floor, Nariman Manzil, Barakhambha Road, New Delhi-110 001. Respondents Date of institution 17.01.2011 Date of decision 17.05.2012 (Application u/s 166 and 140 of Motor Vehicles Act for grant of compensation) JUDGMENT:
1. Petitioner who is aged about 5 years who filed the present claim petition through his father Sh. [ENTITY] claimed a compensation of Rs. 13,51,262/- alongwith interest @ 18% on the ground that on 18.09.2010 at about 4.00 p.m. in front of Park of Sector-7, Rohini, Delhi he, who is already handicap, i.e. deaf from both ears, got injured when he was coming back to home from park with his father at about 4.00 p.m. and when they were waiting at the gate of the park for crossing the road then a motorcycle bearing registration no. DL-8SAK-6696 make Bajaj Pulser hit the petitioner. Further stated that vehicle was rashly negligently driven by R-1 who was driving the vehicle on very high speed, carelessly without obeying the traffic rules, without blowing horn and without having control over the brakes of the vehicles in question. Further stated that the vehicle directly hit and run over the petitioner from the right side, as a result the petitioner (Parth) fell down and kept on dragging with the running vehicle for a long distance from place of accident and that had the respondent no. 1 stopped the vehicle and not tried to run away after hitting the innocent petitioner, the petitioner would never had got such serious nature of injuries after felling down on the road, the petitioner who being deaf/handicap was wearing a very costly "cochlear" implant (hearing aid/machine) which got lost in the accident. The accident was seen by the father of the petitioner, while holding the finger of the petitioner. Thereafter master [ENTITY] was immediately brought to Jaipur Golden Hospital, Rohini, Delhi but there was heavy rush father of the petitioner took him to Max Hospital as he was under lot of pain and his various body parts were bleeding regularly. Further stated that the petitioner got special and immediate medical treatment in the said hospital as he was injured with several injuries at his head, face, ears, left leg, elbow, shoulder teeth and jaw and thereafter [CASE NUMBER] was prepared by the hospital. Thereafter also petitioner ( [ENTITY]) was taken to hospital for further treatment. A criminal case under [SECTION] [ACT] was registered against respondent no.1 vide FIR No. 240/10 in police station Narela.
2. Father of the injured [ENTITY] alleged that prior to accident of his son he was earning more than Rs. 33,437/- per month and after the accident of his son he lost his work and became almost unemployed. Further alleged that due to loss of earning machine of injured and wounds of accident he became unable to understand anything properly and he is in urgent need of cochlear implant because he is deaf from both the ears and cannot listen without his cochlear implant and cost of one cochlear implant is Rs. 9,48,000/- and has incurred losses of Rs. 13,51,262/-. He claimed sum of Rs. 13,51,262/- alongwith interest as compensation from the respondents being driver-cum-owner and insurance company under various pecuniary and non pecuniary heads.
3. Respondents no. 1 filed his written statement submitting therein that the accident did not take place due to his rash and negligent hence petitioner is not liable to any compensation to petitioner. Respondent no. 2/insurance company admitted that offending was insured with it but it tried to avoid its liability on some routine technical grounds.
4. On the basis of pleadings of the parties, following issues were framed on 06.06.2011 by my Ld. Predecessor:
1. Whether [ENTITY] S/o Sh. [ENTITY] suffered injuries due to road accident on 18.09.2010 at about 4:00 p.m. in front of Park, Sector-7, Rohini, Delhi within the jurisdiction of PS: North Rohini due to rash and negligent driving of vehicle No. DL-8SAK-6695 being driven by respondent no.1.? OPP
2. Whether the petitioner is entitled to compensation, if so, to what an extent and from which of the respondents? OPP
3. Relief
5. Petitioner in support of his claim examined his father Sh. [ENTITY] as PW1 and relied upon certain documents, i.e. permanent disability certificate Ex.PW1/1, copy of FIR Ex.PW1/2, MLC report Ex.PW1/3, copy of cochlear implant machine bill Ex.PW1/4, habilitation and mapping bill Ex.PW1/5, impedance charges Ex.PW1/6, medical bills (colly) Ex.PW1/7 to Ex.PW1/15, bills of other expenses Ex.PW1/16 and certificate from the mediclaim insurance company regarding receipt of Rs. 8159/- as Mark-X. Apart from that he stated that petitioner was confined to be and in future he will be not able to walk without any aid thus this accident has made him permanent disable. Though respondents did not examine any witness in support of their defence.
6. I have heard counsel for parties and gone through the record. My decision on the above mentioned issues is as under:
Issue no.1:-
7. The proof required in MACT claim petition are less than the proof required to criminal offence or a civil case. The principles to be followed in the case of motor accident claims has been laid down by the Hon'ble High Court of Guwahati in case cited as [PRECEDENT] wherein it is held that:
"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 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.
In [PRECEDENT], Hon'ble Supreme Court has observed as under:-
"Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
8. The police has prosecuted the R-1 for causing the accident due to rash and negligent driving of the offending motorcycle by filing the charge sheet. PW1/father of petitioner himself in his statement specifically narrated the way and manner in which the accident took place by way of affidavit. Witness has clearly stated that the accident took place due to rash and negligent driving of offending motorcycle. It is the case of the R-1 that the accident did not take place due to his rash and negligent driving of the vehicle. No complaint has been lodged against driver and owner of the offending vehicle before any higher authority regarding the fact that R-1 has been falsely implicated in this case at the instance of injured or IO. It is not the case of R-1 that injured or IO of the case nursed grudge or enmity with owner of the vehicle or they are known to each other. No evidence is led on behalf of R-1 and R-2 in support of contention of R-1 that accident did not take place due to rash and negligent driving of the vehicle driven by R-1. Hence adverse inference has to be drawn against them. Nothing has come in cross-examination by insurance company that accident did not take place due to rash and negligent driving of R-1. Testimony of PW1 is trustworthy and unimpeachable who deposed that accident took place due to rash and negligent driving of R-1 due to which they sustained serious and grievous injuries as mentioned above. Hence this issue is decided in favour of petitioner and against the respondents.
Issue no.2:-
9. Petitioner was taken to the hospital on 18.09.2010 after sustaining injuries i.e. oozing of blood from left side of forehead, abrasion on left side of face and elbow and left leg. Further it is stated that petitioner who being deaf/handicap was wearing a very costly cochlear implant (hearing aid/machine) which got lost in the accident. Further it is stated that father of the petitioner lost all his work and has become almost unemployed and is under huge dept due to spending a huge amount over the treatment.
Medical expenses
10. The petitioner has stated that he has lost a very costly instrument i.e. cochlear implant the cost of which was Rs. 9,48,000/- and also filed bills in support of his plea. Apart from that PW1 stated that he incurred loses total amounting Rs. 13,51,262/-. Further PW1 stated that he is unable to run his business/profession properly like previously and has also under a huge debt due to spending a huge amount over treatment of his son. In support of his plea petitioner examined PW2 Dr. [ENTITY] who inserted the first cochlear implant to injured. As such he is granted a sum of Rs. 13,51,262/- against medical expenses. However, it is the plea taken by PW1 in his affidavit that his son lost the cochlear implant cost of which was Rs. 9,48,000/- in the said accident but also admitted in his cross- examination that he has not mentioned the cost of cochlear implant in his statement made to the police or the FIR. Further admitted that they have not filed original receipts on record regarding mode of payment. As such amount of Rs. 9.48,000/- spent on the cochlear implant lost by injured at the time of his accident is not granted to the petitioner.
11. Petitioner was deaf/handicap and in the accident he lost his cochlear implant and treated after the accident Max Hospital. Further he may require some more medical treatment to overcome the injury suffered by him in the said accident. Further stated that there are permanent scratch marks on the face of the petitioner which will always be visible on his face. It is nowhere mentioned that the petitioner was studying somewhere and even there is no evidence on record to point out that due to absence from school if studying, he failed in examination or could not be promoted to next class but he must have suffered loss of studies due to absence from school for about one year. Accordingly, in such situation and keeping in view the standard in which he was studying, I treat his notional income at Rs. 15,000/- p.a. and he is granted loss of income i.e. notional income of Rs. 3,500/- for three months.
Pain, suffering, shock, temporary loss of amenities, frustration and inconvenience etc.
12. As per the case of [ENTITY] it is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person suffered permanent disability as a result of accident. Even if the victim of accident gets out of grievous injuries, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the Appellant was a minor child of 5 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, ends of justice will be met by awarding him a sum of Rs. 1,50,000/- in lieu of Pain, suffering, temporary loss of amenities, frustration and inconvenience etc. caused due to injuries suffered in accident.
13. In view of the above discussions, this issue is decided in favour of petitioner by holding that he is entitled to get the following total compensation from the respondent/insurance company only:
A) Pecuniary damages (Special damages):
a) Medical bills Rs.13,51,262/-
b) Notional income Rs. 3,500/-
B) Non-pecuniary damages (General damages):
a) Pain, suffering, shock, temporary loss of amenities, frustration and inconvenience etc. Rs.1,50,000/-
Total Rs.15,04,762/- Issue no.3 (Relief):-
14. On the basis of findings given above, present petition is disposed off and respondent no. 3 insurance company is directed to pay sum of Rs. Rs.15,04,762/- to the petitioner, as insurance company has no statutory defence, alongwith interest at the rate of 9% p.a. from the date of filing of DAR i.e. 18.11.2010 till this amount is fully paid in view of judgment of Hon'ble Supreme Court in case titled as [PRECEDENT]. Reported as [CASE NUMBER].
Copy of this judgment be given to petitioner and counsel for respondent no.3 Insurance Company and file be consigned to record room.
Announced in the open (D.K. MALHOTRA) Court on 17.05.2012 JUDGE, MACT (OUTER-II) DELHI