IN THE COURT OF SH. [ENTITY] PRESIDING OFFICER:MOTOR ACCIDENTS CLAIMS TRIBUNALII, DWARKA COURTS, NEW DELHI MACT NO. 220/11/10 IN THE MATTER OF : 1. Sh. [ENTITY] S/o Late Sh. Paramjeet Singh R/o A134, Vipin Garden Kakrola More New Delhi. Petitioner Versus 1. Sh. [ENTITY] (Driver) S/o Sh. Hira Lal Madan R/o V& PO Khera Dabur New Delhi110073. 2. Sh. [ENTITY] (Owner) S/o Sh. Swaroop Singh R/o 308, Khera Dabur Harijan Chaupal Gali New Delhi110073. 3. ICICI Lombard Insurance Co. Ltd. (Insurer) Zenith House, Keshavrao Khade Marg Mahalaxmi, Mumbai. Respondents
FILED ON : 29.10.2010 RESERVED ON : 03.09.2012 DECIDED ON : 03.09.2012 : J U D G M E N T :
1. This is a claim petition 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. The case of petitioner in this claim petition is that on 03.08.10, petitioner alongwith his friend Sh. [ENTITY] was going to fill up petrol in his motorcycle bearing registration no. DL9SP3869. The offending vehicle, Make WagonR bearing registration no. DL1YB7592, which was driven by respondent no. 1 in a rash and negligent manner came from the side of Sector16, Dwarka and hit the motorcycle of petitioner near National Law School University Chowk, Dwarka.
4. As a result of this, petitioner and his friend fell down on the road and petitioner sustained grievous injuries on his head, forehead, eyes and his left leg got fractured and he also sustained injuries on other parts of his body as well.
5. It is stated that Sh. [ENTITY] took petitioner to Ayushman Hospital. Petitioner was medically treated there and on the same day he was shifted to Deen Dayal Upadhyay Hospital and [CASE NUMBER] dated 03.08.10 was prepared. Thereafter, petitioner was treated at Kalra Hospital from 08.08.10 to 17.08.10.
6. It is stated that FIR No. 257/10 under [SECTION] of [ACT] was registered in P.S. Dwarka North against respondent no. 1.
7. It is stated that the petitioner was 19 years of age at the time of accident and was a student.
8. In these circumstances, petitioner has prayed for a compensation of Rs. 5 lacs with interest @ 18% p.a.
9. Respondent no. 1 has filed his written statement and has stated that the alleged vehicle was not involved in any accident on 03.08.10 at about 7.30 p.m and the present respondent was falsely implicated by the petitioner with ulterior motive and purpose.
10. It is stated that an unknown vehicle had caused the said accident on 03.08.10 which had fled away from the spot after hitting the petitioner and thereafter respondent no. 1, who was passing through and saw that the petitioner was lying on the road, being a good human being and following humanity norms, brought the petitioner to hospital.
11. It is stated that respondent no. 1 was shocked to know at a later stage that he has been falsely implicated in a totally false case as an after thought of petitioner, in collusion with the police, to extract money from the respondents.
12. It is stated that petitioner has concealed material facts and has not disclosed that the mother of the petitioner is a Govt. Servant and she is also holder of DGEHS and the petitioner being dependent on his mother, has taken reimbursement of all the money which was incurred on the treatment of the petitioner and therefore present petition is liable to be dismissed on this ground as well.
13. Rest of the contents of claim petition were also denied.
14. Respondent no. 2 has filed written statement which is almost similar as the written statement of Respondent No. 1.
15. Insurance company has also filed its written statement and has stated that it is taking all pleas under
[SECTION] of [ACT] available to it and petition be dismissed if it is found that there is contravention of the provisions of [SECTION] of the [ACT].
16. It is also stated that insurance company denies all responsibilities in case it is found that insured vehicle bearing no. DL1YB7592 was being driven by a person without holding a proper and valid driving license.
17. It is also stated that owner of the vehicle having knowledge about not having the driving license by the driver of the vehicle had willfully breached the terms and conditions of the policy and therefore petition is liable to be dismissed.
18. It is also stated that the driver was not having valid and effective driving license at the time of accident and the one produced by him before police authorities on verification was found to be a fake license. Therefore, it is stated that insurance company has no liability.
19. It is also stated that accident if any took place due to negligence of petitioner.
20. Rest of the contents of claim petition were denied but it was admitted that vehicle no. DL1YB7592 was insured in the name of Sh. [ENTITY] vide policy no. 3004/57512681/00/000 valid for the period from 23.08.09 to 22.08.10.
21. From the pleadings of parties, following issues were framed:
1) Whether [ENTITY], petitioner had sustained injuries on his person in an accident which took place on 03.08.2010 due to negligent driving of vehicle bearing registration no. DL1YB7592 being driven in a negligent manner by respondent no. 1, owned by respondent no. 2& insured with respondent no. 3? OPP
2) In case, issue no. 1 is decided in favour of petitioner, to what amount of compensation he is entitled to and from whom? OPP
3) Relief.
22. Petitioner himself 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. Secondary School Examination Marks statement was proved as Ex. PW1/1, discharge summary of Kalra Hospital was proved as Ex. PW1/3, cash receipt of Ayushman Hospital was proved as Ex. PW1/4, FIR was proved as Ex. PW1/5, bills for purchase of medicines from chemists were proved as Ex. PW1/6, R/C of offending vehicle was proved as Ex. PW1/7.
23. In cross examination, he stated that at the time of accident he was 10th class student and his mother is a teacher in a Govt. School. He denied a suggestion that vehicle bearing registration no. DL1YB7592 has not caused any accident or driver of the said vehicle had taken him to the hospital or he had falsely implicated him. He admitted that some of the expenses incurred by him on his treatment were reimbursed by the department of his mother. His own driving license was proved as Ex. PW1/1.
24. On behalf of insurance company, its Manager (Legal) entered in the witness box as R3W1 and deposed that a notice under [SECTION] of [ACT] was sent to the driver and owner of the offending vehicle. The same was exhibited as Ex. R3W1/1 and the postal receipts through which these notices were sent were proved as Ex. R3W1/2 and 3 respectively. A/D cards addressed to driver and owner were proved as Ex. R3W1/4 and 5, attested copy of insurance policy was proved as Ex. R3W1/6, complaint made to the police on 21.07.11 alongwith postal receipt was proved as Ex. R3W1/7.
25. It was stated that even in report filed by police (DAR), it is noted that driving license is fake and the report is based on notings of MLO, Faridabad, Haryana.
26. In cross examination, this witness stated that he is not having any personal knowledge regarding license of respondent no. 1 which according to the report of police is fake.
27. He denied a suggestion that MLO, Faridabad has given a false report that driving license is fake.
28. No witness was examined on behalf of respondent no. 1 and 2.
29. Arguments were addressed by Sh. [ENTITY], learned Counsel for petitioner, Sh. [ENTITY], learned Counsel for respondent no. 1 and 2 and Sh. [ENTITY], learned Counsel for insurance company.
30. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under:
31. Burden of proving this issue is on the petitioner.
32. 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 its driver.
33. This is sine qua non for getting the relief.
34. Petitioner himself is an eye witness. He has stated in claim petition as well as in his evidence by way of affidavit that on 03.08.10 he alongwith his friend Sh. [ENTITY] were going to fill up petrol in his motorcycle having registration no. DL9SB3869 and at that time offending vehicle Maruti WagonR bearing registration no. DL1YB7592 driven by respondent no. 1 in a rash and negligent manner came from the side of Sector19, Dwarka and hit the motorcycle of the petitioner near National Law School, resulting in grievous injuries on his head, forehead, eyes and his left leg got fractured and he sustained injuries all over his body.
35. Respondent no. 1 has denied that the accident was caused by him. He has stated that he had found petitioner fallen on the ground, hit by some other vehicle and on humanitarian ground he had taken the petitioner to a hospital but petitioner falsely implicated him in this case.
36. However, having taken this defence, respondent no. 1 and 2 failed to prove their defence inasmuch as no cross examination was conducted on behalf of respondent no. 1.
37. The best person to rebut allegations of rash and negligent driving or involvement of alleged offending vehicle in the accident was respondent no. 1 who for reasons best known to him did not put a single question to the petitioner.
38. Therefore, testimony of petitioner that the accident was caused by offending vehicle bearing registration no. DL1YB7592 and the allegations that this vehicle was being driven rashly and negligently has gone unrebutted.
39. There is no reason not to return a finding of rash and negligent driving against respondent no. 1 in this scenario.
40. Moreover, police after investigation in the matter has filed charge sheet against respondent no. 1 which is also evidence of rash and negligent driving by respondent no. 1.
41. It is settled law that the test of negligence in a claim petition is of preponderance of probabilities and not beyond all reasonable doubts as is in the case of a criminal trial.
42. 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 necessary 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]."
43. Therefore, this issue is decided in favour of petitioner and against the respondents. ISSUE NO. 2:
44. 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) 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.
45. As per MLC name of injuries is mentioned as 'opinion reserved'.
46. Petitioner has not filed on record discharge summary of DDU Hospital where he was treated but has filed discharge summary of Kalra Hospital. As per this, injuries suffered by petitioner are RTA with head injury on 03.08.10 non hemorrhagic contusion with survical injury and fracture of both bone left leg.
47. It is noted that cast B/K on left leg applied on 10.08.10.
48. Petitioner had remained admitted in the hospital from 08.08.10 till 17.08.10.
49. At the time of discharge, he was advised limb elevation and cast removal after six weeks.
50. Charge sheet is also filed under [SECTION] of [ACT]. Therefore, nature of injuries are grievous.
51. Considering the discharge summary of Kalra Hospital which is Ex. PW1/3, petitioner is given a compensation of Rs. 50,000/ for Pain and Suffering.
52. Petitioner has received reimbursement from the department where his mother is a Govt. Servant and only chemist bills which are totaling Rs. 3,501/ are unpaid. Therefore, for Cost of Treatment, petitioner is given a compensation of Rs. 3,500/.
53. Additionally, petitioner is given a compensation of Rs. 7,500/ for Special Diet and Rs. 7,500/ for Conveyance Charges.
54. As petitioner was confined to bed due to this accident, he would have needed assistance of an attendant. Even if the assistance was rendered by a family member, he cannot be denied compensation. Therefore, for Attendant Charges, a compensation of Rs. 10,000/ is awarded in favour of petitioner.
55. Petitioner was a student. Therefore, there is no question of loss of income during this period.
56. Petitioner has not suffered any permanent disability.
57. Therefore, total compensation payable to petitioner would be Rs. 78,500/ which will be paid with interest @ 9% p.a. from the date of filing of this claim petition which is 29.10.10 till its deposit in the Tribunal.
58. For granting interest @ 9% p.a. reliance can be placed on the judgment of Hon'ble High Court of Delhi in [PRECEDENT]. [CASE NUMBER] dated 19.03.12 where in para 72 and 73 the Hon'ble High Court has held as under:
72. In [PRECEDENT], the interest granted by the National Commission @ 9% was upheld by the Supreme Court. In [PRECEDENT], interest @ 9% per annum was awarded by the Hon'ble Supreme Court. In [PRECEDENT], the interest @ 9% p.a. awarded by the Claims Tribunal was approved. In [PRECEDENT], interest @ 9% p.a. was awarded on the enhanced amount of compensation.
73. In these circumstances, I would also follow the Bank rate of interest and would award interest @ 9% p.a. on the enhanced amount.
59. In the case of [PRECEDENT] dated 11.05.2012 the Hon'ble High Court has held as under: "7. The Claims Tribunal has awarded interest @ 6% per annum which is on a lower side. The Apex Court has awarded interest @ 9% per annum, in the recent case of [PRECEDENT]. Following the judgment of the Apex Court, the rate of interest is enhanced from 6% per annum to 9% per annum."
60. Next question is which of the respondents is liable to pay the compensation.
61. Police has filed D.A. Report which was served upon driver and owner. As per report, driving license is fake. For reporting that driving license is fake, Investigating Officer is relying upon report of MLO, Faridabad who has given a noting that driving license produced by the driver Sh. [ENTITY] was not issued by said Licensing Authority. Police has filed charge sheet against respondent no. 1 under [SECTION], [SECTION] of [ACT] and also under [SECTION] and [SECTION] of [ACT].
62. Respondent no. 3 has also served notice under [SECTION] of [ACT] upon the owner as well as driver to produce driving license to drive the said vehicle. Notices were duly served. A/D cards are on record. Insurance company has also filed complaint before Dy. Commissioner of Police against fake driving license of Sh. [ENTITY]. Said complaint is Ex. R3W1/7.
63. Notings of Investigating Officer in D.A. Report are to be presumed to be correct unless rebutted to the contrary. These are the directions of Hon'ble High Court of Delhi in the case of [PRECEDENT] dated 16.12.09.
64. Owner was all along aware that the allegations in D.A. Report are that the driving license is fake.
65. There is no pleading in the written statement that driver was having a valid and effective driving license to drive the vehicle.
66. Inspite of such an evidence on record against driver and owner, they chose not to enter in the witness box to produce any other valid and effective driving license or to show under which circumstances owner handed over the vehicle to the driver who was found to be having a fake driving license.
67. Therefore, the compensation would be payable by insurance company in the first instance with liberty to recover the same from driver and owner by filing execution petition before this Tribunal as per law.
68. Let compensation be deposited within 30 days from today under intimation to the petitioner.
69. Copy of award be given dasti to all the parties.
70. File be consigned to record room.
Announced in the Open Court.
On the 03rd day of September, 2012 ([ENTITY]) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.