IN THE COURT OF SHRI [ENTITY] ADDITIONAL DISTRICT & SESSIONS JUDGE, JUDGE, MACT-2, (CENTRAL), DELHI. SUIT NO. 357408-16 Shri [ENTITY] S/O Mahaveer R/o Village Chichaha, Chhadami Ka Pura Pinht Dehat, District- Agra (U.P) PETITIONER Versus 1. Sh [ENTITY] S/O Sh Krishan Lal R/O - A-187, Block -A Nehru Vihar, New Delhi Driver cum Owner 2. IFFCO Tokio General Insurance Co, Ltd 4th & 5th Floors, Plot No.3, Sector-29, Gurgaon, Haryana. (Insurer) RESPONDENTS Date of filing of DAR : 08.05.2015 Arguments heard on : 28.02.2017 Judgment pronounced on 25.03.2017 [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page1of16 JUDGMENT-CUM-AWARD: INFORMATIONINTERMSOFPROVISIONSOFTHE MODIFIED CLAIMTRIBUNALAGREEDPROCEDURE(MCTAP) 1 DateofAccident 28.01.2015 2 Date of intimation of the accident by the 30.01.2015 Investigation Officer to the Claims Tribunal (Clasuse2) 3 Dateofintimationoftheaccidentbythe 08.05.2015 Investigation Officer to the Insurance Company(Clause2) 4 DateoffilingoftheReportundersection173 01.09.2015 [ACT] before the Metropolitan Magistrate (Clause10) 5 DateoffilingofDetailedAccidentInformation 08.05.2015 Report(DAR) by the Investigation Officer beforeClaimsTribunal(Clause) 6 Date of service of DAR on the Insurance 08.05.2015 Company(clause11) 7 Date of service of DAR on the claimant(s) 08.05.2015 (Clause11) 8 WhetherDARwascompleteinallrespects?( Yes Clause11) 9 IfnotstatedeficienciesintheDAR 10 Whether the police has verified the Yes documentsfiledwithDAR?(clause4) 11 Whethertherewasanydelayordeficiencyon NO the part of the Investigation Officer? If so, whetheranyaction/directionwarranted? 12 DateofappointmentoftheDesignatedOfficer 11.09.2015 bytheInsuranceCompany 13 Name , address and contact number of the Notmentioned [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page2of16 Designated Officer of the Insurance Company(Clause19) 14 Whether the Designated officer of the No insurance Company submitted his report within30daysoftheDAR?(Clause21) 15 WhethertheInsuranceCompanyadmittedthe Notadmitted liability?Ifso,whethertheDesignatedOfficer oftheInsuranceCompanyfairlycomputedthe compensation in accordance with law. (Clause22) 16 Whethertherewasanydelayordeficiencyon No the part of the Designated officer of the Insurance Company? If so whether any action/directionwarranted? 17 Date of response of the claimant(s) to the NA offeroftheInsuranceCompany?(Clause23) 18 DateofAward 25.03.2017 19 Whether the award was passed with the No consentoftheparties?(Clause22) 20 Whether the claimants(s) examined at the Yes timeofpassingoftheawardtoascertainhis/ theirfinancialcondition?(Clause26) 21 Whether the photographs, specimen Yes signatures,proofofresidenceandparticulars ofbankaccountoftheinjured/legalheirsof thedeceasedtakenatthetimeofpassingof theaward?(Clause26) 22 Modeofdisbursementoftheawardamountto Mentionedintheaward theclaimant(s)(Clause28) 23 Next Date of compliance of the 25.05.2017 award(Clause30) [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page3of16 PART-A BRIEF FACTS OF ACCIDENT 1. Present claim Petition has been preferred under [SECTION] and [SECTION] of [ACT] (hereinafter referred to as 'the Act') claiming compensation for a sum of Rs. 5,00,000/-/- (Rupees Five Lakh Only) in respect of grevious injuries sustained by him in a motor vehicular accident. 2. Brief facts of the case giving rise to the claim Petition are that on 28.01.2015 the petitioner along with other persons was travelling in a Maruti Van as a passanger/occupant and when the said Van reached Shanti Van Chowk red ligh signal, it was hit by offending vehicle bearing No. DL-1CF-0689 owned and driven by respondent No.1. As a result of the said accident the vehicle, in which the petitioner was travelling, turned turtled thereby causing grevious injuries to the petitioner and the other occupants of the said vehicle. 3. The petitioner along with the other occupants was taken to the LNJP Hospital where he was treated upon for his injuries which consist of Head Injuries, Chest Injuries and Back Injuries. An FIR bearing No. 91/2015 u/s [SECTION] registered with the PS Kotwali. 4. It is further the case of the Petitioner that at the time of accident he was engaged as a Cateror with [ENTITY] at salary of Rs. 12000/- per month. [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page4of16 PART-B DEFENCE OF DRIVER AND OWNER RESPONDENT No. 1 & 2 5. In the Written Statement filed on behalf of Respondent No.1- driver and owner of the offending vehicle it was submitted that though the accident did occur but there was no fault on the part of the respondent No.1 and he has been impleaded in the impugned FIR only with a view to extort money. PART-C DEFENCE OF INSURANCE COMPANY RESPONDENT No. 3 6. IntheWrittenStatement,RespondentNo.2 submitted thattheoffendingvehiclewasindeedinsuredwithitfortherelevant periodbutatthesametimealsosubmittedthatthevehicleinwhichthe deceased was travelling should have also been impleaded as a necessarypartyinthepresentcase. PART-D ISSUES 7. On the pleadings of the parties, following issues were framed for consideration vide order dated 05.10.2015 by ld. Predecessor:- (i) Whether the deceased [ENTITY] suffered Fatal injuries in an accident that took place on 28.01.2015 at about 00.10 hrs, involving Car bearing registration No. DL-10 CF-0869 driven and owned by the Responder No.1 rashly and negligently and insured with the respondent No.2 OPP. [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page5of16 (ii) Whether the Petitioners are entitled to any compensation, if so, to what amount and from whom? (iii) Relief. PART-E PETITIONER'S EVIDENCE 8. In support of the claim, Petitioner examined himself as PW-1and proved on record his ID Proof and the medical record. 9. However, the PW-1 has failed to prove on record the avermnet made in the petition to the effect of being employed as a Caterer with [ENTITY] at a monthly salary of Rs 12,000/- PART-F RESPONDENT'S EVIDENCE 10. Evidence was not led on behalf of the Respondents. PART-G FINDINGS/CONCLUSION 11. I have heard arguments addressed on behalf of the Petitioners, counsel for Respondent Insurance Company and perused the record. My Issue-wise findings are as under :- Issue No. (I) (i) Whether the deceased [ENTITY] suffered Fatal injuries in an accident that took place on [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page6of16 28.01.2015 at about 00.10 hrs, involving Car bearing registration No. DL-10 CF-0869 driven and owned by the Responder No.1 rashly and negligently and insured with the respondent No.2 OPP. In [PRECEDENT], it was held that in a Petition U/[SECTION] of the [ACT] the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition. In [PRECEDENT] decided on 02.07.2012 by Hon'ble Mr. Justice [ENTITY] (Delhi High Court), it was observed that it has to be borne in mind that the [ACT] does not envisage holding a trial for a Petition preferred under [SECTION] of the Act. Under [SECTION] of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in [PRECEDENT], Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence. The relevant portion of the report is extracted hereunder: " that tribunals exercising quasi-judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources, and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page7of16 which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts." Reference may also be made to observations in [PRECEDENT] wherein the claim was allowed after consideration of FIR before the Tribunal. "In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accident 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 Accident Claim 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 enquiry and this is a legislation for the welfare of the society. In [PRECEDENT], the Supreme Court pointed out that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page8of16 here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter." In the instant case, though the respondent No.1 in his Written Statement has claimed that he has been falsely implicated but has neither come forward to cross examine the PW-1 nor has led any evidence in order to prove the said defence. Similarly the respondent No.2 insurance company has also not come forward to lead any evidence. Considering the fact that negligence has to be assessed on touchstone of preponderance of probability and a holistic view is to be taken, it has been established that the accident was caused due to rash and negligent driving of Respondent No.1. Issue No. 1 is decided in favour of the Petitioner and against the Respondents. 12. Issue No. (ii) (ii) Whether the Petitioner is entitled to any compensation, if so, to what amount and from whom? In [PRECEDENT], Hon'ble Supreme Court of India observed that the object of awarding damages is to make good the loss suffered as a result of the wrong done as far as money can do in a fair, reasonable and equitable manner. Paras 4 and 5 of the judgment are further extracted below as the same explains the various heads under which the compensation is to be assessed:- "4. The provision of the [ACT] ('the Act' for short) makes it clear that the award [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page9of16 must be just, which means that compensation 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 equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. [See [PRECEDENT], [PRECEDENT] and [PRECEDENT]. 5. The heads under which compensation is awarded in Personal Injury Cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalization, [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page10of16 medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be 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 will be granted under any of the heads (ii)(b), (iii), (v) and (vi) [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page11of16 relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life." Now the important factors relevant for calculation of compensation consequent to accidental injuries sustained by the Petitioner may be considered. LOSS OF EARNING CAPACITY For purpose of assessing the loss of earning capacity, the income of the Petitioner/injured needs to be assessed along with the functional disability suffered by him due to the injuries sustained in the accident. (a) Criteria for taking income of the Petitioner Counsel for Petitioner fairly conceded that no document has been filed to prove the employment or income of Petitioner and urged that income of the Petitioner be assessed on the basis of minimum wages of unskilled worker as notified by Government of Agra (U.P) for the relevant period, as it stand not proved that as on the date of accident the petitioner was employed at Delhi. In the facts and circumstances, keeping in view of the fact that the petitioner has failed to prove even his employment with [ENTITY], as claimed by him in the petition and examination in chief and also keeping in view the ID proof Ex PW1/1 viz Election ID Card of the petitioenr bearing his address as of Agra (U.P),notional income of the Petitioner is considered on the basis of minimum wages of unskilled worker as notified by Government of U.P for the relevant [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page12of16 period @ Rs. 246.75/- per day for purpose of assessment of compensation. (b) Loss of Income on account of accident Counsel for Petitioner contended that on account of the accident petitioner suffered grevious injuries all over his body. It is claimed that consequent to accidental injuries, Petitioner could not attend to his work for a considerable period of time. Considering the nature of injuries, period of admission as indoor patient and treatment undertaken by the Petitioner, it can be reasonably presumed that on account of injuries, the Petitioner may not have been in a position to attend his work for a period of around 3 months as unlike the connected matter in the case of [ENTITY] bearing No. 357397/16, the present petitioner was discharged on the very same day. In the facts and circumstances, Petitioner is accordingly awarded damages of Rs 22207.50/- for a period of three months for which he was not able to perform his job i.e. [Rs. 246.75/- (notional income for one day) X 90 days]. (c) Loss of amenities, loss of expectation of life & prospects of marriage due to Permanent Disability The amount of compensation towards amenities should be to bring amenities and restoration of health to the Petitioner. In the facts and circumstances, considering the injuries suffered by the Petitioner, he is awarded a sum of Rs.20 000/- (Rupees Twenty thousand only) on account of loss of amenities and loss of expectation of life. [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page13of16 (d) Pain and Suffering & Mental Agony As the Petitioner suffered grevious injuries and remained incapacitated from performing normal activities for a considerable period of treatment, he is awarded a sum of Rs. 20,000/- (Rupees Twenty thousand only) towards pain and suffering and mental agony, as unlike the connected matter in the case of [ENTITY] bearing No. 357397/16, the present petitioner was discharged on the very same day. (e) Conveyance & Special Diet Though no conveyance bills have been filed on record by the Petitioner but it can be presumed that Petitioner must have spent some amount during the period of treatment. In view of above, an amount of Rs. 10,000/- (Rupees Ten Thousand Only) is awarded towards conveyance for the period of treatment. Petitioner is further awarded an amount of Rs.10,000/- (Rupees Ten Thousand Only) towards special diet,as unlike the connected matter in the case of [ENTITY] bearing No. 357397/16, the present petitioner was discharged on the very same day. (f) Attendant Charges Hon'ble High Court of Delhi in [PRECEDENT] held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services. Further, in the case of [PRECEDENT], value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month. I am of the considered view that even if the gratuitous services were rendered by some or the other family members, the [CASE NUMBER]-16[ENTITY]VsChirag@Chintu Page14of16 claimant cannot be deprived of its benefit on the gain of the tortfeasor. Considering the nature of injuries, the compensation of Rs. 7500/- is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members (i.e. Rs.2,500/- X 3 months). 13. As discussed above, the overall compensation is tabulated as under: Loss of Earning Capacity Rs. 22,207.50/- Pain and Suffering Rs. 20,000/- Conveyance Charges Rs. 10,000/- Special Diet Rs. 10,000/- Attendant Charges Rs. 7,500/-
Total Rs. 69707.50/-
(Rounded off Rs. 69708/-) (Rupees Sixty nine thousand seven hudnred eight only) The claimant/Petitioner is also entitled to interest @ 9% p.a. from the date of filing of DAR w.e.f. 08.05.2015.
14. It is further held that Respondent No.1 (Driver cum owner and Respondent No.2 (Insurer) of the offending vehicle are jointly and severally liable to make the payment of compensation to the Petitioner/claimant.
15. On realization, an amount of Rs. 69708/- (Rupees Sixty nine thousand seven hudred eight only) shall be released to the Petitioner .
16. Relief Since the offending vehicle was duly insured, Respondent No.2/ Insurance Company is directed to deposit the award amount of Rs. 69708/- with interest @ 9% per annum from the date of filing of dDAR i.e. 08.05.2015 till realization with [ENTITY] of this Court within 30 days under intimation to the Petitioner failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
17. Insurance Company/Driver and Owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the Petitioner/claimant and complete details in respect of calculations of interest etc. within 30 days from today.
18. A copy of this judgement be sent to Respondent No.3/ Insurance Company Ltd. for compliance within the time granted.
19. [ENTITY] is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the time granted.
File be consigned to Record Room.
Announced in open court on 25th March 2017 ( [ENTITY] ) Judge, MACT-2 (Central), Tis Hazari Courts, Delhi.