IN THE COURT OF SHRI [ENTITY] PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII, DWARKA COURTS: NEW DELHI 69/DAR/13 IN THE MATTER OF : Shri [ENTITY], S/o Shri Majid, R/o H. No. 234, Jhuggi Basti, Near Masjid, Goyala Dairy, New Delhi. Permanent R/o: H. No. 23, VPO Jitwarpur, Distt. Katiyar, Bihar. Claimant Versus 1. Shri [ENTITY], (Driver) S/o Shri Chander Bhan, R/o VPO Bamnoli, New Delhi. 2. Smt. [ENTITY], (Owner) W/o Shri Rishi Tanwar, R/o H. No. 9, V.P.O. Bamnoli, New Delhi. 3. Tata AIG Insurance Company Limited (Insurer) Respondents 69/DAR/13 Shri [ENTITY] Vs. Shri [ENTITY] & Ors. Page 1 of 15 Filed on : 13.02.2013 Heard on : 09.12.2013 Decided on : 09.12.2013 J U D G M E N T:
1. This report of the Investigating Police Officer (DAR) is filed in FIR No. 81/12, registered at P.S. Dwarka Sector23, under [SECTION] of [ACT] and 185 of [ACT] against Respondent No. 1 regarding an accident in which the claimant Shri [ENTITY] had suffered grievous injuries on 27.05.2012.
2. Perusal of the chargesheet shows that the police machinery was set in motion when Ct. [ENTITY] had stated before the Investigating Officer that on 27.05.2012, while he was patrolling at around 9:15 p.m., near Pochanpur T Point, he saw the offending vehicle bearing No. DL9CAA2345 being driven by its driver in a rash and negligent manner hitting motorcycle bearing No. DL9SK7452 and injuring its motorcyclist. He also stated that the driver of the offending vehicle tried to run away but he chased the offending vehicle on his motorcycle and apprehended the driver. In the meanwhile, the injured was removed to hospital in a private vehicle.
3. Notice of this report was issued to all the parties.
4. Respondent No. 1 and 2 did not file any reply.
5. On behalf of Insurance Company, a legal offer of Rs. 32,020/ was given. But attributing contributory negligence to the claimant also, 25% was sought to be deducted and therefore, the legal offer was reduced to Rs. 24,015/.
6. Since the claimant had suffered permanent disability which was not taken into account by the Insurance Company and as the claimant was not ready to accept contributory negligence on his part, this offer was not accepted by him.
7. Therefore, to decide the compensation payable to the claimant, following issues were framed: i. Whether the petitioner received injuries in an accident on 27.05.2012 caused by respondent no. 1, while driving vehicle bearing No. DL9C AA2345 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?
iii.Relief.
8. Claimant entered in the witness box as PW1 and stated in his evidence by way of affidavit that on 27.05.2012, at about 9:15 p.m., he had met with an accident when he was going to his house on his motorcycle bearing No. DL9SK7452. He stated that near Pochanpur TPoint towards Goyla Dairy, the offending vehicle bearing No. DL9CAA2345 being driven in a rash and negligent manner had hit his motorcycle forcefully resulting in grievous injuries to him. He stated that he was removed to Ayushman Hospital by a private car and remained admitted there from 27.05.2012 to 03.06.2012 and [CASE NUMBER] was also prepared in that hospital. He stated that he has spent more than Rs. 2,00,000/ on his treatment and some payments for his treatment were given by Respondent No. 1 and those bills are in custody of Respondent No. 1. He stated that his wife, who was earning Rs. 8,000/ per month by doing a private job, had to leave that job to attend him and he was earning Rs. 15,000/ per month as a "Raj Mistri" but now due to his permanent disability, he will not be able to perform day to day work. He proved his treatment record at Ayushman Hospital as Ex. PW1/1 and his photographs after the accident as Ex. PW1/2.
9. In crossexamination by counsel for the Insurance Company, he stated that he had a driving license but it was lost at the time of accident. Other standard suggestions contrary to his case were also denied by him.
10. No other witness was examined by the claimant.
11. Respondent No. 1 had entered in the witness box but restricted his statement only to bills of treatment paid by him. These bills worth Rs. 1,09,720/ were proved as Ex. R1W1/1 collectively.
12. On the directions of this Tribunal, MS of DDU Hospital had convened a Medical Board to examine the claimant and assess physical disability, if any, suffered by him due to accidental injuries.
13. The said Board has opined that the claimant has suffered Scarring Calcanlum with Permanent Physical Disability of 50% in relation to Right Lower Limb.
14. Since this certificate was received directly by this Tribunal from the DDU Hospital, the same would be taken into consideration for assessing compensation payable to the claimant.
15. On the basis of pleadings of parties, issuewise findings are as under: ISSUE NO. 1:
16. Burden of proving this issue is on the claimant.
17. For succeeding in a claim petition filed under [SECTION] of [ACT], it is for the claimant to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
18. This is sine qua non for getting the relief.
19. FIR was registered on the complaint of a public servant that too a constable of Delhi Police. Ct. [ENTITY] had stated before the Investigating Officer that while he was patrolling, he had seen the offending vehicle driven in a rash and negligent manner by Respondent No. 1 hitting the motorcycle driven by the claimant resulting in grievous injuries to the accident. After the accident, the driver of the offending vehicle tried to run away from the place of accident but he chased and stopped the driver from running away.
20. Claimant himself is also an eye witness to the accident and he has also stated that the offending vehicle being driven in a rash and negligent manner by Respondent No. 1 had hit his motorcycle.
21. The driver did not file any reply to this report. When the claimant entered in the witness box, he was not cross examined by the driver. When Respondent No. 1 entered in the witness box, he confined his statement only with regard to bills of treatment paid by him and did not say anything about his innocence.
22. Police after investigation in the matter has filed charge sheet against Respondent No. 1 under [SECTION] of [ACT] which is also prima facie suggestive of negligence of Respondent No. 1.
23. 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]."
24. 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."
25. 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."
26. 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.
27. Therefore, this issue is decided in favour of claimant and against the respondents.
ISSUE NO. 2:
28. In the case of [PRECEDENT] [CASE NUMBER] 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) 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.
29. Claimant had remained admitted in Ayushman Hospital from 27.05.2012 to 03.06.2012 as a case of Fracture Calcancus with Loss of Tissue ORIF Calccancus + Reverse Soul Flap. He had undergone operation for Fixation of Calcancus with Flap Reverse Soul under Spinal Anesthesia on 28.05.2012 and Reinserting of Flap with Redistribution of Graft on 02.06.2012.
30. Therefore, claimant is awarded a compensation of Rs. 30,000/ for Pain and Suffering.
31. Claimant is also awarded a compensation of Rs. 7,500/ for Special Diet and Rs. 7,500/ for Conveyance Charges.
32. With kind of injuries suffered by the claimant, he would have needed the help of an attendant at least for a period of 3 months.
33. It is well settled that a victim of road traffic accident has to be compensated in terms of money even if gratuitous services are rendered by his family members.
34. In Delhi Transport Corporation and Anr. v. Lalita:
AIR 1981 Delhi 558, Hon'ble High Court of Delhi has held that there cannot be any deduction if domestic help is obtained from a family member. The Hon'ble High Court had observed as under: " A wrong doer cannot take advantage of this 'domestic element'. If the mother renders service to her, instead of a nurse, it is right and just that she should recover compensation for the value of the services that the mother has rendered to her. Mother's services were necessitated by the wrong doing and the injured should be compensated for it. ([PRECEDENT]) The services of a wife and mother are worth more than those of a housekeeper because she is in constant attendance and does many more things than a housekeeper. (Regan v. Williamson (1976) 2 All E.R.
241)."
35. This judgment was again quoted with approval by the Hon'ble High Court of Delhi in the case of [PRECEDENT] dated 04.07.12.
36. Therefore, on a lump sum basis, the claimant is awarded a compensation of Rs. 15,000/ (e.g. Rs. 5,000/ x 3) for Attendant's Charges.
37. The claimant has suffered Permanent Physical Disability to an extent of 50% in relation to Right Lower Limb.
38. With the kind of injuries suffered by the claimant, it can be assumed that at least 25% earning capacity of the claimant would be lost due to permanent disability.
39. In the absence of any income proof or educational qualifications of the claimant, he would be treated as an unskilled workman. On the date of accident, minimum wages of an unskilled workman were Rs. 7,020/ per month.
40. Relying on the judgment passed by the Hon'ble High Court of Delhi in the case of [PRECEDENT], dated 30.09.2012, claimant is given benefit of loss of future prospects to an extent of 50% as he was less than 40 years of age at the time of accident.
41. Once Rs. 3,510/ is added to Rs. 7,020/, the assumed income of the claimant would be Rs. 10,530/ per month and 25% thereof would Rs. 2,632/.
42. Therefore, the financial loss for the claimant due to this disability will be Rs. 2,632.50/ per month or Rs. 31,590/ per annum.
43. As per Voter Card of the claimant, his year of birth is 1986. Therefore, he was 27 years of age at the time of accident.
44. As per [PRECEDENT], applying a multiplier of 17, the financial loss for the claimant due to his accidental injuries will be Rs. 5,37,030/.
45. Therefore, claimant is awarded a compensation of Rs. 5,37,030/ (i.e. Rs.31,590/x 17) towards loss of earning capacity due to this accident.
46. Cost of treatment of the claimant was given by the Respondent No. 1. This was in fact responsibility of the Insurance Company. Owners of the offending vehicles should be encouraged to help a road traffic accident victim in his treatment in good quality hospitals by directing Insurance Company to pay the insured cost of treatment of injured while awarding compensation in favour of injured. If Respondent No. 1 had not helped the claimant, the claimant could not have afforded his treatment in Ayushman Hospital where Respondent No. 1 had spent Rs. 1,09,720/ as per original bills placed on record by Respondent No. 1.
47. Therefore, Insurance Company will deposit a sum of Rs. 1,09,720/ towards cost of treatment in favour of Respondent No. 1.
48. This direction is not without any precedent. When Red Line Buses were playing havoc on the roads of Delhi, the Hon'ble High Court of Delhi had passed directions that a vehicle involved in the accident will be released on Superdari only after its owner deposited a fixed amount before Ld. M.M. to be given to the injured. Whenever an award was passed by the Claims Tribunal in favour of injured, payment given by the owner to the injured was deducted from the award and was given to the owner.
49. Therefore, in this case also, the Insurance Company will pay a sum of Rs. 1,09,720/ to the insured.
50. There are few receipts available with claimant also towards cost of treatment totaling Rs. 670/. Therefore, he is awarded a compensation of Rs. 1,000/ for Cost of Treatment.
51. Therefore, total compensation payable to the claimant will be Rs. 5,98,030/ which shall be deposited with interest @ 7.5% per annum from the date of filing of this D.A. Report which is 13.02.2013 till its realization.
52. Additionally, a sum of Rs. 1,09,720/ shall be given to the owner of the vehicle with interest @ 7.5% from the date of filing of this D.A. Report till its realization.
53. As claimant has already incurred expenses on his treatment (i.e. Rs. 1,000/), special diet (i.e. Rs. 7,500/) , conveyance (i.e. Rs. 7,500/) and for attendant's charges (i.e. Rs. 15,000/), a sum of Rs. 31,000/ shall be released in his favour immediately without any precondition of FDR.
54. However, the remaining amount with proportionate interest shall be deposited in 17 FDRs of equal amount for a period of 1 to 17 years in any nationalised bank of the choice of the claimant with directions to release monthly interest on these deposits in his favour regularly, if so desired.
55. Insurance Company has only taken an objection of contributory negligence. For proving contributory negligence, Insurance Company has not examined any witness. So much so, even Respondent No. 1 has not entered in the witness box to depose that there was a contributory negligence on the part of the claimant also. Therefore, without any deduction for contributory negligence, the entire compensation shall be paid by the Insurance Company within 30 days from today under intimation to the claimant as well as to his counsel by Registered Post. Intimation of deposit shall also be given to the insured as well as to his counsel.
56. In case, even after passing of 90 days, the Insurance Company fails to deposit this compensation, it shall be recovered by attaching its bank account with a cost of Rs. 5,000/ as per directions of the Hon'ble High Court of Delhi in the case of [PRECEDENT].
57. Address of the counsel of the claimant for effecting service of notice of deposit of compensation is as under: Shri [ENTITY] Advocate, [CASE NUMBER], New Delhi.
58. Address of counsel for the insured for effecting service of notice of deposit of compensation is as under: [ENTITY] & Associates Advocates, Chamber No. 811, Dwarka Courts Complex, New Delhi - 110 075.
59. [ENTITY] of this Court will also send intimation of deposit of compensation to the claimant, insured and their counsels.
60. [ENTITY] will put up this file with a report from [ENTITY] regarding deposit of compensation again on 19.03.2014.
61. Copy of award be given dasti to all the parties.
62. File be consigned to the Record Room. Announced in the Open Court On the 9th day of December, 2013.
([ENTITY]) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI