IN THE COURT OF SHRI [ENTITY] PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII, DWARKA COURTS: NEW DELHI [CASE NUMBER] IN THE MATTER OF : Shri [ENTITY], S/o Shri [ENTITY] Singh, R/o RZC2/170, Mahaveer Enclave, Part I, Dwarka, New Delhi. Petitioner Versus 1. Shri [ENTITY] (Driver/Owner) S/o Shri Lalit Mohan Dass, R/o B59, Sahpur Jat, Hauz Khas, Delhi. 2. ICICI Lombard General Insurance Co. Ltd. (Insurer) 23rd Narain Manzil, 3rd Floor, Barakhamba Road, Connaught Place, New Delhi - 110 001. Respondents Filed on : 05.04.2011 Reserved on : 05.12.2012 Decided on : 14.12.2012 [CASE NUMBER] Shri [ENTITY] Vs. Shri [ENTITY] & Anr. Page No. 1 of 11 J U D G M E N T:
1. This is a claim petition filed under [SECTION] and [SECTION] of the [ACT].
2. Respondent No. 1 is the DrivercumOwner and Respondent No. 2 is the insurer of the offending vehicle.
3. It is stated in this claim petition that on 23.12.2009, at about 11:15 A.M., petitioner had picked up passenger from Dwarka in his TSR bearing No. DL1RH2689 and was going to Tuglakabad.
4. At that time, when he had reached at Munirka Fly Over, suddenly a Maruti Alto bearing Registration No. DL9CL3314, driven by Respondent No. 1 in a rash and negligent manner came at a high speed from back side and overtook the TSR of the petitioner from right side and suddenly turned the car to his left side and hit the TSR of the petitioner from right side.
5. It is stated that due to this impact, TSR of petitioner overturned as a result of which the petitioner and the passenger fell down and the petitioner suffered grievous injuries and vehicle was also badly damaged.
6. It is stated that the petitioner was rushed to Safdarjung Hospital by the passenger of the TSR with the help of one passerby namely, Shri [ENTITY] and petitioner was admitted in the hospital vide [CASE NUMBER].
7. It is stated that due to impact of accident, petitioner suffered compound injuries on his right knee, forehead and on other body parts.
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8. It is stated that as the petitioner continued to suffer pain and swelling, he was again taken to DDU Hospital on 26.12.2009 where his treatment continued up till 29.03.2010, when plaster for three months was applied at ankle of the petitioner.
9. It is stated that the treatment of the petitioner is still going on. He is not able to drive his TSR and he has incurred a sum of Rs. 1,00,000/ on his treatment so far.
10. In these circumstances, petitioner has claimed a compensation of Rs. 7,00,000/ with interest @ 18% per annum from the date of claim petition till its realisation.
11. No written statement was filed by Respondent No. 1.
12. Respondent No. 2 stated in its written statement that it is taking all the pleas under [SECTION] of [ACT]. Without prejudice, involvement of vehicle bearing No. DL 9CL 3314 was specifically denied. Alternatively, it was also submitted that the accident took place due to sole negligence on the part of petitioner himself while driving TSR bearing No. DL 1RH 2689 and petition is bad for non joinder of necessary parties as owner and insurer of the TSR bearing No. DL 1RH 2689 were not impleaded as parties.
13. Rest of the contents of claim petition were denied but it was admitted that Vehicle bearing No. DL 9CL 3314 was insured with answering respondent vide [CASE NUMBER] in the name of Shri [ENTITY] valid for the period from 30.12.2008 to 29.12.2009.
14. From the pleadings of the parties, following issues [CASE NUMBER] Shri [ENTITY] Vs. Shri [ENTITY] & Anr. Page No. 3 of 11 were framed: i. Whether Sh. [ENTITY] S/o Shri [ENTITY] had sustained (injuries) on his person in an accident which took place on 23.12.99 due to negligent driving of vehicle bearing registration No. DL 9CL 3314 being driven in a negligent manner by respondent no. 1, owned by respondent no. 1 and insured with respondent no. 2? OPP ii. In case, issue no. 1 is decided in favour of petitioner, to what amount of compensation he is entitled to and from whom.
OPP iii. Relief.
15. Petitioner entered in the witness box as PW1 and stated similar facts in his evidence by way of affidavit as were already stated in his claim petition.
16. Petitioner proved his Election Identity Card as Ex. PW1/A, FIR as Ex. PW1/B, MLC as Ex. PW1/C, Driving License of driver of offending vehicle as Ex. PW1/D, RC of offending vehicle as Ex. PW1/E, CertificatecumPolicy Schedule as Ex. PW1/F, Driving License of the petitioner authorising him to drive Taxi and Auto as Ex. PW1/G and Driving License authorising petitioner to drive L.M.V. like three WheelerTSR as Ex. PW1/H, Mechanical Inspection Report of the offending vehicle as well as vehicle which was being driven by the petitioner at the time of accident as Ex. PW1/IJ, treatment record of petitioner at Safdarjung Hospital as Ex. PW1/K, treatment record of petitioner at DDU Hospital as Ex. PW1/LM and receipts for purchase of medicines as Ex. PW1/N. [CASE NUMBER] Shri [ENTITY] Vs. Shri [ENTITY] & Anr. Page No. 4 of 11
17. In crossexamination, he deposed that he has not taken any claim from his insurance company. He denied a suggestion that three wheeler had hit rear door of the offending vehicle. He deposed that the offending vehicle had hit his three wheeler from right side and his vehicle was overturned as a result of this accident.
18. No other witness was examined by any party.
19. Arguments were addressed by Shri [ENTITY], learned counsel for the petitioner and Shri [ENTITY], learned counsel for the insurance company.
20. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO.1:
21. Burden of proving this issue is on the petitioner.
22. For succeeding in a claim petition under [ACT], it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by Respondent No. 1.
23. This is sine qua non for getting the relief.
24. Petitioner himself is an eye witness. He has clearly stated that the offending vehicle had turned left, all of a sudden, as a result of which had hit the TSR of the petitioner from right side and TSR driven by the petitioner overturned resulting injuries to him.
25. Respondent No. 1 neither filed written statement nor crossexamined the petitioner nor entered in the witness box to prove his defence.
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26. Perusal of Mechanical Inspection Report of the offending vehicle shows that its left side second door was dented/pressed and left side rear quarter panel was dented.
27. Mechanical Inspection Report of TSR driven by the petitioner shows that its front side was dented/pressed/scratched, its front wind screen glass was broken, its right side corner side was broken, its right side body was dented / pressed / scratched, hood cloth was damaged and pipe frame was pressed.
28. Perusal of two Mechanical Inspection Reports also draw inference that the offending vehicle had turned to the left side, all of a sudden, that is why its left part was damaged and right portion of TSR was also damaged.
29. 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 [CASE NUMBER] Shri [ENTITY] Vs. Shri [ENTITY] & Anr. Page No. 6 of 11 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]."
30. 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."
31. 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 [CASE NUMBER] Shri [ENTITY] Vs. Shri [ENTITY] & Anr. Page No. 7 of 11 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.
32. Therefore, this issue is decided in favour of petitioner and against the respondents. ISSUE NO. 2:
33. In the case of [PRECEDENT], 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) [CASE NUMBER] Shri [ENTITY] Vs. Shri [ENTITY] & Anr. Page No. 8 of 11 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.
34. As per MLC, petitioner has suffered fracture right clavicle. He had abrasion on knee and forehead. He had also CLW at left foot.
35. Petitioner was initially treated at Safdarjung Hospital. There the wound was sutured over left foot. XRay showed fracture right clavicle and fracture base of fourth metatarsal.
36. At the time of discharge, he was advised limb elevation, active finger / toe movement, to look for increase in swelling and to report in emergency in such an event.
37. Thereafter, petitioner was treated in DDU Hospital. He was treated there till 26.03.2010 when plaster was applied for three months at Ankle.
38. Therefore, for Pain and Suffering, petitioner is [CASE NUMBER] Shri [ENTITY] Vs. Shri [ENTITY] & Anr. Page No. 9 of 11 granted a compensation of Rs. 45,000/.
39. Petitioner has spent Rs. 3,386/ on purchase of medicines. He is entitled to receive this amount as Cost of Treatment.
40. Petitioner is also entitled to a sum of Rs. 7,500/ for Special Diet and a sum of Rs. 7,500/ for Conveyance Charges.
41. Treatment of petitioner has continued from 23.12.2009 till June, 2010 because as on 26.03.2010 paster was applied for three months.
42. Therefore, he is entitled to loss of income for a period of six months. Petitioner had a Driving License to drive TSR. Minimum wages payable to a skilled workman on the date of accident were Rs. 4,377/ per month.
43. Therefore, for Loss of Wages, petitioner is entitled to a compensation of Rs. 26,262/ i.e. Rs. 4,377/ x 6.
44. Petitioner is entitled to a sum Rs. 5,000/ for Physiotherapy and a sum of Rs. 5,000/ for Attendance's Charges on lump sum basis.
45. Resultantly, total compensation payable to petitioner would be Rs. 99,648/ which will be paid with interest @ 7.5% per annum (this is the rate of interest which is being awarded by Hon'ble High Court of Delhi at present) from the date of filing of this claim petition which is 04.05.2011 till its deposit in the Tribunal.
46. Insurance company has not proved any defence.
47. Therefore, compensation shall be deposited by insurance company within 30 days from today under intimation to [CASE NUMBER] Shri [ENTITY] Vs. Shri [ENTITY] & Anr. Page No. 10 of 11 the petitioner by registered post.
48. Copy of award be given dasti to all the parties.
49. File be consigned to the Record Room.
Announced in the open Court On the 14th Day of December, 2012.
([ENTITY]) PRESIDING OFFICER MOTOR ACCIDENTS CLAIMS TRIBUNALII DWARKA COURTS: NEW DELHI [CASE NUMBER] Shri [ENTITY] Vs. Shri [ENTITY] & Anr. Page No. 11 of 11