IN THE COURT OF SHRI [ENTITY] PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII, DWARKA COURTS: NEW DELHI MACT No. 157/11/08 IN THE MATTER OF : [ENTITY], S/o Shri Ram Lakhan, R/o C/o Smt. Veena Lekhi, A1/78B, Chanakya Place, New Delhi - 110 059. Presently at: D3/34, Vashisht Park, Pankha Road, New Delhi - 110 046. Claimant Versus 1. [ENTITY], (Driver) S/o Shri Kajham Lal, R/o C/o KGIII/68, Vikas Puri, New Delhi. 2. [ENTITY], (Owner) S/o Shri D.P. Singh, R/o H. No. 1201, Adarsh Nagar, Nalairna Road, Ballabgarh, Distt. Faridabad, Haryana. 2 nd Address: KGIII/68, Vikas Puri, New Delhi. MACT No. 157/11/08 [ENTITY] Vs. [ENTITY] & Ors. Page 1 of 12 3. The [ENTITY], (Insurer) Oriental House, A25/27, Asaf Ali Road, New Delhi. Policy No. 211201/31/2007/2091 Valid from 14.12.2006 to 13.12.2007 Respondents Filed on : 15.11.2008 Reserved on : 13.09.2013 Decided on : 13.09.2013 J U D G M E N T:
1. This claim petition is filed under [SECTION] and [SECTION] of the [ACT] for grant of compensation.
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. It is stated in this claim petition that on 06.08.2007, claimant was a passenger in Bus No. UP84C9597 which was going from Khurja to Aligarh, U.P. At about 4:00 p.m., when the bus reached near Meerpur, U.P., a Truck bearing No. HR38H2856 came being driven in a rash and negligent manner and caused the accident resulting in fatal injuries to one of the passengers of the bus and grievous injuries to other passengers including the claimant.
4. Claimant has stated that he suffered injuries on right foot toe, fracture in heel of right foot, stitches on forehead, head and grievous injuries all over his body.
5. Claimant has stated that FIR No. 245/07 was registered under [SECTION] of [ACT] and [SECTION] of [ACT] at P.S. Khurja Nagar, Distt. Bullandshahar, U.P.
6. Claimant has stated that at the time of accident, he was 28 years of age and was a student of B.Tech and was also doing part time job at a salary of Rs. 6,000/ per month with M/s. Unidac Communication Services, Shakkarpur, Delhi.
7. Claimant has stated that he has spent Rs. 1,00,000/ on his treatment, special diet, conveyance charges etc. He has claimed a compensation of Rs. 5,00,000/ from the respondents with interest @ 18% per annum from the date of filing of this claim petition till its realization.
8. Respondent No. 1 and 2 were proceeded ex parte.
9. Insurance Company admitted that the offending vehicle was insured with it on the date of accident. However, it was also stated that if the driver was not having a valid driving license and if the vehicle was being plied on the road without valid permit, Insurance Company will have no liability to pay any compensation to the claimant.
10. From the pleadings of the parties, following issues were framed: i. Whether petitioner [ENTITY] had sustained injuries on his person in an accident which took place on 06/08/2007 due to negligent driving of Truck bearing registration no. HR38H2856 which was being driven in a negligent manner by R1, owned by R2 & insured with R3, the insurance company?
ii. In case, issue no. 1 is decided in favour of the petitioner, to what amount of compensation he is entitled to and from whom? OPP.
iii.Relief.
11. Only claimant entered in the witness box as PW1 and stated similar facts in his evidence by way of affidavit as were already stated by him in his claim petition. He stated that he was admitted in Government Hospital Khurja and thereafter he was referred to Safdarjang Hospital, Delhi for further treatment. Treatment record at BSMJ Hospital, Khurja, Bullandshahar was exhibited as Ex. PW1/1. As per this, claimant was advised XRay of right leg with a knee joint. Ex. PW1/2 is treatment record of claimant at Safdarjang Hospital on 08.08.2007 where it is noted that he had suffered road traffic accident on 06.08.2007. He was found to have suffered fracture of dislocation distal phalanx 1st toe right foot. K Wire fixation was done under digital block. Ex.PW1/3 shows that the claimant was attending Safdarjang Hospital till 28.11.2007 for treatment of his accidental injuries. FIR was exhibited as Ex. PW1/4. Registration Certificate of the offending vehicle was exhibited as Ex. PW1/5. Permit of the offending vehicle was exhibited as Ex. PW1/6. (There is no Ex. PW1/7.) Insurance Cover of the offending vehicle was proved as Ex. PW1/8 and bills for cost of treatment were proved as Ex. PW1/9A to 9I. Treatment record at Mata Chanan Devi Hospital was proved as Ex. PW1/9J and other receipts were proved as Ex. PW1/9K to M. Certificate given by the employer of the claimant was proved as Ex. PW1/DX.
12. In crossexamination, PW1 vividly explained sequence of events leading to the accident which showed negligence of Respondent No. 1 in causing the accident. Claimant denied suggestions given to him which were contrary to his case.
13. Certified copy of chargesheet of this case was filed on record on behalf of SHO of P.S. Khurja Nagar, Bulandshahar, U.P. Rest of the records from the Court trying criminal case against Respondent No. 1 could not be summoned as it was reported that the records are lost and file was being reconstructed.
14. No other witness was examined by the claimant and no witness was examined by any of the respondents.
15. On the basis of pleadings of parties, evidence on record and arguments addressed, 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 the [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. Claimant is an eye witness to the accident. He has stated that the offending truck being driven at a fast speed in a rash and negligent manner had hit the bus in which the claimant was travelling from driver's side. He denied a suggestion that the accident had taken place due to negligence of driver of the bus in which he was travelling.
20. Respondent No. 1 was proceeded ex parte. He was the best person to deny allegations of rash and negligence made against him.
21. Respondent No. 1 neither crossexamined the claimant nor entered in the witness box to prove 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 the Respondent No. 1 in driving the offending vehicle in a rash and negligent manner.
23. In [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."
24. In the case of [PRECEDENT]. [CASE NUMBER] 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]."
25. 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."
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. Injuries suffered by the claimant are "Fracture Distal Phalanx 1st toe right foot."
30. Therefore, for Pain and Suffering, he is awarded a compensation of Rs.25,000/.
31. There is no evidence of earnings of the claimant. He has not examined any witness from M/s. Unidac Communication Services to prove that his salary was Rs. 5,000/ per month. There is no evidence of educational qualifications of the claimant.
32. Therefore, reliance is placed on minimum wages payable to an unskilled workman which on the date of accident were Rs. 3,516/ per month. With the kind of injuries, claimant would have taken rest at least for a period of three months.
33. Therefore, for Loss of Wages, the claimant is awarded a compensation of Rs. 10,548/. i.e. Rs.3,516/ x 3.
34. 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.
35. 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)."
36. This judgment was again quoted with approval by the Hon'ble High Court of Delhi in the case of [PRECEDENT] dated 04.07.12.
37. Therefore, for Attendant's Charges, claimant is awarded a compensation of Rs. 5,000/ on lump sum basis.
38. Medical bills worth Rs.24,945/ are on record. Therefore, for Cost of Treatment, claimant is awarded a compensation of Rs. 25,000/.
39. Claimant is also awarded a compensation of Rs. 5,000/ for Special Diet and Rs. 5,000/ for Conveyance Charges.
40. Since there is an implant which would be required to be removed in future, claimant is also awarded a compensation of Rs. 5,000/ for Removal of Implant.
41. Therefore, total compensation payable to the claimant would be Rs.80,548/ which shall be payable with interest @ 7.5% per annum from the date of filing of this claim petition which is 15.11.2008 till its realization.
42. Insurance company has not proved any defence.
43. Therefore, the compensation shall be deposited by the Insurance Company which be deposited within 30 days from today under intimation to the claimant as well as to his counsel by Registered Post.
44. Address of the counsel of the claimant for effecting service of notice of deposit of compensation is as under: Shri [ENTITY], Advocate, Chamber No. 623, Western Wing, Tis Hazari Courts, Delhi - 110 054.
45. [ENTITY] of this Court will also send intimation of deposit of compensation to the claimant as well as to his counsel.
46. [ENTITY] will put up this file with report from [ENTITY] regarding deposit of compensation again on 17.12.2013.
47. Copy of award be given dasti to all the parties.
48. File be consigned to the Record Room. Announced in the Open Court On the 13th day of September, 2013 ([ENTITY]) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI