IN THE COURT OF MS. [ENTITY] : PRESIDING OFFICER MACT : KARKARDOOMA COURTS (EAST) : DELHI. M.A.C. Petition No : 504FA/10 Unique Case ID No. : 02402C0309482010 Sh. [ENTITY] S/o Sh. Mahesh Chand R/o 113, Giridhar Enclave, Sahibabad, Ghaziabad, U.P. Petitioner VERSUS 1. [ENTITY] S/o Sh. Budha Ram R/o H. No. A141, Ambedkar Colony, Chattarpur, Delhi. Driver 2. Depot Manager DTC Kalkaji Depot, New Delhi. Owner 3. [ENTITY] Office at: Kanchanjunga Building, 8th Floor, Barakhamba Road, New Delhi. Insurer Respondents
Presented on : 29.10.2010 Reserved for Order on : 15.04.2014 Date of Award : 21.04.2014 [CASE NUMBER] Page : 1/15 A W A R D
1. This D.A. Report is filed by Investigating Officer in FIR no. 332/10 registered at PS Madhu Vihar (East) u/[SECTION] of [ACT] in which Sh. [ENTITY], the claimant had suffered grievous injuries in a road accident on 2.10.10.
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. The facts in brief are that the claimant stated that on 02.10.2010, he was going with his friend Mr. [ENTITY] as a pillion rider on motorcycle no. DL 5S AB 1439 towards his house. As he reached near EDM Mall, Anand Vihar, suddenly a DTC bus bearing no. DL 1PB 0769 driven by respondent no.1 rashly, negligently and at a very high speed, came from wrong direction and hit the motorcycle. Claimant states that due to forceful impact, he fell down and sustained serious injuries i.e. Fracture in left thigh, Fracture shaft Femur (L), Fracture neck Femur (L) besides injuries on head, left hand and abrasions all over the body. He was removed to LBS hospital with the help of public persons. On same day he was taken to Narender Mohan Hospital, Ghaziabad.
4. Written statement is filed by respondent no.1 & 2 stating that [CASE NUMBER] Page : 2/15 the DTC bus bearing no. DL 1PB 0769 was insured with the respondent no.3; that accident had not taken place due to rash and negligent driving of the respondent no.1 and injured was himself responsible for the accident as he hit the offending vehicle from front side without observing the traffic rules as the traffic was diverted by the police. The respondent no.1 & 2 denied almost all the material averments of the petition.
5. The respondent no.3/Insurance Co. filed written statement admitting that the offending vehicle bearing no. DL1PB0769 was insured vide policy no. 0411003110P000856789, valid for the period 1.9.10 to 31.08.11 in the name of Delhi Transport Corporation. It is stated that the insurance company is taking all the defences available under [SECTION] and [SECTION] of the [ACT].
6. On the basis of the pleadings following issues were framed :
1) Whether petitioner has suffered injuries in road side accident on 02.10.2010 involving vehicle i.e. DTC bus bearing no. DL1PB0769 being driven allegedly in a rash and negligent manner by R1?
2) To what amount of compensation, if any, the petitioner is entitled to and from whom?
3) Relief.
[CASE NUMBER]
7. The petitioner Sh. [ENTITY] has examined himself as PW1 and has filed his affidavit Ex.PW1/A stating therein all the facts which were stated by him in his petition. He also relied upon the documents i.e. medical bills amounting to Rs.40,095/ as Ex.PW1/1, Treatment Record as Ex.PW1/2, Salary Certificate as Ex.PW1/3, ITR for the assessment years 200708, 200809 and 200910 as Ex.PW1/4, secondary school certificate as Ex.PW1/5, Driving licence as Mark A, Pan Card as Ex.PW1/6, Aadhar card as Ex.PW1/7, Disability Certificate as Ex.PW1/8 and criminal record/DAR proceedings as Ex.PW1/9.
8. Petitioner also examined Dr. [ENTITY] as PW2 from GTB Hospital, who has proved disability certificate as Ex.PW2/A. PW3 [ENTITY] from Narinder Mohan Hospital has proved treatment record as Ex.PW3/1 and PW3/2 (colly.).
9. I have heard Ld. Counsel for the parties and gone through the material on record and my issuewise findings are as under :
ISSUE NO.1 :
Whether petitioner has suffered injuries in road side accident on 02.10.2010 involving vehicle i.e. DTC bus bearing no. DL1PB0769 being driven allegedly in a rash and negligent manner by R1?
10.Burden of proving this issue is on the petitioner. For succeeding [CASE NUMBER] in a claim petition filed under [SECTION] of the [ACT], it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
This is sine qua non for getting the relief. Petitioner stated that on 02.10.2010, he was going with his friend Mr. [ENTITY] as a pillion rider on motorcycle no. DL 5S AB 1439 towards his house. As he reached near EDM Mall, Anand Vihar, suddenly a DTC bus bearing no. DL 1PB 0769 driven by respondent no.1 rashly, negligently and at a very high speed, came from wrong direction and hit the motorcycle. He sustained injuries and was immediately taken to LBS Hospital.
11.The respondents did not lead any evidence. Police after investigation has filed chargesheet against respondent no.1 in case FIR No.332/10, P.S. Madhu Vihar under [SECTION] of [ACT] which is primafacie suggestive of negligence of respondent no.1 in driving the vehicle at the time of accident.
12.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 [CASE NUMBER] 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."
13.In 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 [CASE NUMBER] been applied."
14.The report in [ENTITY] (Supra) was relied on by the Hon'ble Supreme Court in its latest judgments in [PRECEDENT] and [PRECEDENT]."
15.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 respondents - claimants 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 FIR No.955 of 2004, 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 requires 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".
[CASE NUMBER]
16.This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh : 2009 (3) AD (Delhi) 310 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 petitioner had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case. The respondent no.1 failed to place an iota of evidence showing thereby that the accident has not taken place due to his rash and negligent act. The issue thus stands decided in favour of petitioner holding that the accident happened as a result of negligent driving by respondent no.1.
ISSUE NO.2
ii). To what amount of compensation, if any, the petitioner is entitled to and from whom?
17.PW1, petitioner stated that on 02.10.2010 he was admitted to Narender Mohan Hospital. He was operated upon as he had Fracture left thigh, Fracture shaft Femur (communuted), Fracture neck Femur (L) and he was discharged on 15.10.2010. He stated that an operation was done and external rods were [CASE NUMBER] fixed for stretching the leg. He continued visiting as outdoor patient for sometime. He sustained 52% of permanent disability of lower left limb.
18.Hon'ble Supreme Court has enumerated the principles for granting the compensation payable to road traffic accident victims. 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 [CASE NUMBER] (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.
19.The petitioner has suffered grievous injuries. He has proved the Disability Certificate Ex.PW2/A as per which, he suffered 52% permanent disability in relation to his left lower limb. Even today, the petitioner is battling with his injuries. As regards the quantum of compensation, petitioner has to be compensated for the actual expenses incurred by him and for the loss of income of his being rendered disabled. Besides non pecuniary losses are to be assessed on the basis of facts proved.
20.For pain and suffering of the petitioner, I assess Rs.50,000/ towards Pain and Suffering.
21.Petitioner has placed on record the medical bills of Rs.40,095/. The same are not disputed by respondents.
[CASE NUMBER] Page : 10/15
22.Petitioner has stated that he was employed as full time manager (sales) in M/s Virtual Homes from April, 2010 and was drawing total income of Rs.25,000/p.m. but no evidence has come up in respect thereof. However, from the ITRs Ex.PW1/4 his annual income is shown as Rs.1,61,470/. His monthly income thus is assessed as Rs.13,456/.
23.Relying upon the judgment of [PRECEDENT], the petitioner has become entitled for addition of 50% increase while assessing the future prospectus, which comes as Rs.13,456.00 + Rs.6,728.00 = Rs.20,184.00. The annual income comes at Rs.20,184.00 x 12 = 2,42,208.00.
24.On applying the multiplier of 18, the Future Loss of income comes to Rs.2,42,208.00 x 18 x 0.26 = Rs.11,33,533.00.
25.With the kind of injuries suffered by him, it can be safely assumed that he would have suffered loss of earning capacity at least for a period of three months. He is awarded an amount of Rs.40,368.00 (Rs.13,456.00 X 3) for Loss of Wages.
26.The petitioner is also awarded a compensation of Rs.7,500/ for Special Diet and Rs.7,500/ for Conveyance Charges.
27.With the kind of injuries, the petitioner would have needed help of an attendant. It is well settled that a victim of an accident has [CASE NUMBER] to be compensated in terms of money even if gratuitous services are rendered by a family member. In [PRECEDENT], the 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 has 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. ([PRECEDENT])."
28.This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of [PRECEDENT] 04.07.12.
29.Therefore, on a lump sum basis, the petitioner is awarded a compensation of Rs.15,000/ for three months as Attendant's Charges.
30.Keeping in view the facts and circumstances, I consider the [CASE NUMBER] following amount to be the just compensation to the petitioner: 1 Towards future loss of income Rs.11,33,533.00 2 Towards pain and sufferings Rs. 50,000.00 3 Towards servant/attendant for 3 months Rs. 15,000.00 4 Towards conveyance and special diet (without bills) Rs. 15,000.00 5 Towards medical bills Rs. 40,095.00 6 Towards loss of earning for 3 months Rs. 40,368.00 7 Towards loss of amenities and enjoyment of life Rs. 40,000.00 Total = Rs. 13,33,996.00 Therefore, in my opinion the petitioner is entitled to Rs. 13,33,996/ which shall be the just compensation to petitioner. LIABILITY :
31.Since Insurance company has admitted the policy as on date of accident therefore respondent no.3 is liable to pay the compensation amount. There being no evidence of violation of the policy condition and there being no evidence to support the permitted defence U/[SECTION] of the [ACT], I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
A W A R D
32.The petition stands allowed. The respondent No.3/Insurance company is liable to pay the compensation of Rs.13,33,996/.
[CASE NUMBER] Page : 13/15 However, the respondent No.3/insurance company having admitted the policy, is hereby directed to pay a compensation of Rs.13,33,996/, within one month. The respondent no. 3/insurance company shall also pay interest @ 7.5% per annum (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner.
33.The award amount alongwith interest be deposited by respondent no. 3/Insurance Company, within 30 days in the court. In case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the 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.10,000/.
34.Out of total award amount, let an amount of Rs.3,00,000/ be released in favour of the claimant forthwith. Rest of the amount shall be deposited in three FDRs of equal amount for a period from one to three years in any Nationalized Bank of the choice of claimant with directions to release monthly interest in his [CASE NUMBER] favour, if so desire.
35.The FDRs shall not be encashed before their maturity date without leave of this court.
36.The respondent no.3 is directed to give notice regarding the deposit of the amount to the petitioner at the address mentioned in the memo of parties and will also sent copy of notice to the counsel for petitioner at the address mentioned in the Vakalatnama.
37.List for reporting compliance on 02.06.2014. The respondent no. 3 is directed to place on record the proof of deposit of the award amount, notice of the deposit and calculation of interest on the next date of hearing.
Announced in the open court Dated : 21st April, 2014 (MS. [ENTITY]) PRERSIDING OFFICER MACT (EAST) KARKARDOOMA COURTS, DELHI.
[CASE NUMBER] 21.04.2014 Present : Ld. Counsel for petitioner. Ld. Counsel for R3/insurance co.
Vide separate order, an Award is passed in favour of petitioner and against respondent no.3, as per which the respondent No.3/Insurance company having admitted policy is liable to pay the compensation of Rs.13,33,996/, within one month. The respondent no.3/insurance company shall also pay interest @ 7.5% per annum (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner.
The award amount alongwith interest be deposited by respondent no. 3/Insurance Company, within 30 days in the court. In case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the 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.10,000/.
Out of total award amount, let an amount of Rs.3,00,000/ be released in favour of the claimant forthwith. Rest of the amount shall be deposited in three FDRs of equal amount for a period from one to three years in any Nationalized Bank of the choice of claimant with directions to release monthly interest in his favour, if so desire.
The FDRs shall not be encashed before their maturity date without leave of this court.
The respondent no.3 is directed to give notice regarding the deposit of the amount to the petitioner at the address mentioned in the memo of parties and will also sent copy of notice to the counsel for [CASE NUMBER] petitioner at the address mentioned in the Vakalatnama.
List for reporting compliance on 02.06.2014. The respondent no. 3 is directed to place on record the proof of deposit of the award amount, notice of the deposit and calculation of interest on the next date of hearing.
(MS. [ENTITY]) P.O.MACT (EAST)/KKD./DELHI/21.04.2014 [CASE NUMBER] Page : 17/15