IN THE COURT OF MS. [ENTITY] : PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL : KARKARDOOMA COURTS : EAST DISTRICT : DELHI [PRECEDENT] Unique I.D. No.02402C0 0175042011 1. Ms. [ENTITY] D/o. Shri Pal Singh R/o. Budh Vihar, 25 Foota Road, Gali No. B8, Ghaziabad, UP. Petitioner Versus 1. [ENTITY] S/o. Sh. Bhavan Singh R/o H.No. 7, Anarkali, Krishna Nagar, Delhi. Driver 2. [ENTITY] S/o Sh. Bhavani Singh R/o. S/181A, Sunder Block, Shakarpur, Delhi. Owner 3. [ENTITY] Regd. Off at A - 25/27, Asaf Ali Road, New Delhi - 110 002. Insurer Respondents
Presented on : 07.06.2011 Reserved on : 22.09.2014 Decided on : 23.09.2014 [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 1/18 A W A R D
1. The petitioner has filed the present Petition U/[SECTION] & [SECTION] of [ACT] claiming compensation of Rs. 25,00,000/ for the injuries suffered by her in the road side accident dated 07.03.2011.
2. The brief facts of the case are that on 07.03.2011 at about 3.30 PM, petitioner was going towards Mayur Vihar, PhaseIII. While crossing the road towards CRPF Gate, she was hit by a vehicle i.e. [ENTITY] No. DL2W2934, driven by respondent no. 1, at a very high speed and in a rash and negligent manner. The petitioner sustained multiple grievous injuries. She was immediately taken to LBS Hospital for treatment and on 08.03.2011, she was shifted to Safdarjung Hospital. A case FIR No. 71/11, u/[SECTION] [ACT] was registered at Police Station New Ashok Nagar against respondent no. 1.
3. It is stated that respondent no.1 is the Driver, respondent no.2 is the Owner of the offending vehicle and respondent no. 3 is the insurer, therefore, they all are jointly and severally liable to pay the compensation to the petitioner.
4. Respondent no.1 & 2 have filed their joint Written Statement [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 2/18 and stated that no accident had taken place with the vehicle in question; that respondents were implicated falsely in the present case by the petitioner; that the vehicle in question was insured on the relevant date.
5. Respondent no. 3 has filed its written statement in which it is stated that the offending vehicle bearing registration No. DL2W2934 was insured with the respondent no. 3 vide Insurance Policy valid from 06.12.2010 to 05.12.2011 in the name of the Respondent no. 2; that the Driving License of the Driver, issued from RTO Delhi was not valid at the time of accident.
6. After hearing arguments and on the basis of pleadings from both the parties, following issues were framed by my Ld. Predecessor vide order dated 13.04.2012:
i) Whether petitioner suffered injuries in road side accident on 07.03.2011 involving [ENTITY] bearing registration No. DL2W2934 driven by the driver?
ii) To what amount of compensation, petitioner is entitled to and from whom?
iii) Relief.
[PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 3/18
7. Petitioner [ENTITY] has examined herself as PW1 and filed her affidavit Ex.PW1/A wherein all the facts which were stated in the petition have been reiterated. She relied upon the documents i.e. criminal case proceedings as Ex.PW1/1, MLC alongwith medical record and discharge summary as Ex.PW1/2, medical bills as Ex.PW1/3, Disability Certificate as Ex.PW1/4, Election I card as Ex.PW1/5 and Marksheet of 8th Class Mark A. PW2 Dr. [ENTITY], Jr. Specialist, Orthopaedics from LBS Hospital has proved the Disability Certificate showing the 79% Permanent Disability suffered by petitioner in relation to right upper and lower limbs.
8. It is pertinent to mention here that respondent no. 1 & 2 have not led any evidence in support of their contentions.
9. Respondent no.3 has examined Mr. [ENTITY], DEO, Mayur Vihar Transport Authority, who proved the record of DL of respondent no. 1 as R3W1/A, which shows that DL was not valid. Mr. [ENTITY], Administrative Officer from [ENTITY], is examined as R3W2, who has relied upon the documents i.e., Insurance Policy as Ex. R3W2/1, Notice u/[SECTION] [ACT] issued on owner and driver as Ex. R3W2/2 and R3W2/3, Postal receipts as Ex. R3W2/4 & Ex. [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 4/18 R3W2/5 and Speed Post as Ex. R3W2/6 & R3W2/7.
10.This court has carefully heard Ld. Counsels for both the parties in the light of relevant statutory provisions of law. On the basis of submissions advanced and the evidence adduced by both the parties, my findings on the issues are as follows :
ISSUE NO.1 :
Whether petitioner suffered injuries in road side accident on 07.03.2011 involving [ENTITY] bearing registration No. DL2W2934 driven by the driver?
11.For succeeding 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. Petitioner/ PW1 stated that on 07.03.2011 at about 3.30 PM, while she was going towards Mayur Vihar, PhaseIII and crossing the road, she was hit by a vehicle i.e. [ENTITY] No. DL2W2934, driven by respondent no. 1, at a very high speed and in negligent manner. FIR was registered on the statement of the petitioner. Police after investigation has filed chargesheet against respondent no.1 under [SECTION] [ACT] which is primafacie suggestive of negligence of respondent no.1 in driving the vehicle at the time of accident. In Ranu [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 5/18 Bala Paul & Ors. v. Bani Chakraborty & Ors.1999 ACJ 634, the Hon'ble Guwahati 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."
12.In the case of [PRECEDENT], the Hon'ble High Court of Delhi has held that :
" 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 [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 6/18 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".
13.In the case titled as [PRECEDENT], an 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 issue thus stands decided in favour of petitioner holding that the accident happened as a result of rash & [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 7/18 negligent driving of respondent no.2, in which she sustained grievous injuries.
ISSUE NO.2 :
To what amount of compensation, petitioner is entitled to and from whom?
14.PW1, petitioner stated that on 07.03.2011, she was admitted to LBS Hospital. Due to critical condition, she was taken to Safdurjung Hospital. She remained admitted in the said hospital from 08.03.2011 to 26.04.2011. She sustained compound Grade III b Fracture of right leg, right arm, elbow dislocation and multiple abrasions over face, right breast, shoulders and other parts of body. The external fixator was applied for dislocation on 09.03.2011. The debridement of wound was done on right thigh on 11.04.2011, and open reduction and internal fixator with Knails was carried out. Bone grafting was also done on 18.04.2011. Petitioner suffered permanent disability of 79% in relation to her right upper and lower limb as a case of post traumatic fibrous ankylosis of right elbow, and compound fracture of upper and lower limbs. Dr. [ENTITY] (Orthopedics) as PW2 has proved the Disability Certificate of petitioner as Ex. PW1/4.
[PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 8/18
15. Hon'ble Supreme Court 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 (General Damage) are (iv) damages for pain, suffering and [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 9/18 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.
16.Petitioner is entitled for the compensation on account of future loss due to disability. While assessing future loss, her functional disability has to be assessed, which is to be judged with reference to the nature of work being performed by her.
17.This Court has personally examined the petitioner. She has studied upto 8th class. She was doing the work of embroidery / thread work in M/s. Radhika Enterprises. It needs no mention that she had an aptitude of a skilled person. Her marriage was scheduled only after a month of accident. I assess that due to the disabilities sustained, her capacity has been considerably reduced, restricting her from carrying any job and even doing [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 10/18 her normal daily chores. Her right limb and hand is completely immobile and she cannot even write her name or put her signatures. Adding to this is the physical & mental suffering caused by her medical condition itself. Her right side of body is virtually immobile and this unusual deprivation she suffered, has a great effect on her future life. Her marriage prospects are completely diminished. I am aware of the dictum of law laid down in the judgements in "[PRECEDENT]"; "[PRECEDENT]"; "[PRECEDENT]" and in "[PRECEDENT]". Considering the facts and circumstances, the functional disability is taken as 50% in relation to the whole body, in view of dictum of "[PRECEDENT]".
18.The petitioner has placed on record her Voter I Card as Ex.
PW1/5, which shows her Date of birth as 16.05.1993. Her age as on the date of accident was 18 years. She is the resident of Ghaziabad, UP. Since no evidence in respect of the petitioner's being employed anywhere has come up, she is entitled to claim her income on the basis of minimum wages of skilled worker, as [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 11/18 applicable in Uttar Pradesh. The minimum wages of a skilled worker at the relevant time were Rs. 4993/ and thus, the income is assessed as Rs. 4,993/ per month. Relying upon the judgment of [PRECEDENT] and [PRECEDENT] dated 30.09.2011, the petitioner is entitled for addition of 50% increase in his minimum wages while assessing the future prospects and thus, the same is assessed as Rs.4,993.00 + Rs.2,497.00 (50%) = Rs. 7,490.00 per month. On applying the multiplier of 18, the Future Loss of Income comes to Rs.7,490.00 x 12 x 18 x 0.50 = Rs.8,08,920/.
19.In "[PRECEDENT]", Hon'ble Apex Court observed that while fixing compensation for pain and sufferings, as also for loss of amenities of life, the features like the age, marital status and unusual deprivation undertaken by a person in his life are to be reckoned. From the overall assessment of nature of injuries and the fact that the disability shall remain throughout her life, I assess Rs. 1,00,000/ as compensation towards Pain, Shock and Suffering to the petitioner.
[PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 12/18
20.Petitioner has suffered loss of marriage prospects besides loss of expectation of life i.e., her normal life span is shortened due to the injuries, which has caused her disappointment and stress. She will have to endure this inconvenience, disappointment and stress for the whole of her remaining life. Keeping in mind all these facts and circumstances, she is awarded compensation of Rs.1,50,000/ towards Loss of Marriage Prospects and a sum of Rs.1,50,000/ towards Loss of Amenities and Enjoyment of Life.
21.The injuries on the right side of the body and resultant 79% permanent disability has left her disfigured. She is awarded a sum of Rs. 80,000.00 on account of Disfiguration.
22.Petitioner has placed on record the Medical Bills of Rs. 11,677/ as per prescriptions. Thus, an amount of Rs. 11,677/ is awarded under the head Medical Bills.
23.With the kind of injuries suffered by her, it can be safely assumed that she would have suffered loss of earning capacity at least for a period of six months. She is awarded Rs. 44,940.00 (Rs. 7490.00 x 6) for six months for Loss of Wages.
24.The petitioner is also awarded a compensation of Rs. 40,000/ for Special Diet and Rs. 40,000/ for Conveyance Charges. [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 13/18
25.A victim of an accident has to be compensated in terms of money even if gratuitous services are rendered by a family member. In [PRECEDENT], 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])."
26.This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of [PRECEDENT] dated 04.07.12. Therefore, on a lump sum basis, the petitioner is awarded a compensation of Rs. [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 14/18 30,000/ for six months as Attendant's Charges.
27.Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the petitioner: 1 Towards future loss of income Rs. 8,08,920.00 2 Towards pain and sufferings Rs. 1,00,000.00 3 Towards servant/attendant for 6 months Rs. 30,000.00 4 Towards conveyance and special diet Rs. 80,000.00 (without bills) 5 Towards medical bills Rs. 11,677.00 6 Towards loss of amenities and enjoyment Rs. 1,50,000.00 of life 7 Towards disfigurement Rs. 80,000.00 8 Towards loss of Marriage prospects Rs 1,50,000.00 9 Towards loss of Wages Rs. 44,940.00 Total = Rs.14,55,537.00
28. Therefore, petitioner is entitled to Rs. 14,55,537.00 which shall be the just compensation to her.
LIABILITY :
29.The Respondent no.3 has examined Mr. [ENTITY], DEO, Mayur Vihar Transport Authority, who proved the record of DL of respondent no. 1 as Ex. R3W1/A. As per record the Driving License in the name of driver was valid upto 22.01.2011. It was renewed on 15.03.2011. Thus, the DL was [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 15/18 not valid as on the date of accident. Sh. [ENTITY] from [ENTITY], is examined as R3W2 and deposed of having issued notice u/[SECTION] [ACT] upon the owner and driver as Ex. R3W2/2 and Ex. R3W2/3, Postal receipts as Ex. R3W2/4 & Ex. R3W2/5 and Speed Post as Ex. R3W2/6 & R3W2/7.
30.Respondent no.3 had given the Notice U/[SECTION] [ACT] to the owner and driver to produce the driving licence. The said notice was sent by registered post and was correctly addressed. Therefore, there is presumption of service of notice. The respondents have failed to produce the driving licence, even during proceedings before Tribunal. An inference can be drawn that there was no valid driving licence with the driver at the time of accident. Therefore, respondent no.3 cannot be fastened with the liability and is entitled to recovery rights against respondents no.1 and 2 as per law.
A W A R D
31. Resultantly, the petition stands allowed. The respondent No. 3/Insurance company, in the first instance, is liable to pay the compensation of Rs. 14,55,537.00 but with liberty to recover the same from respondent no.1 and 2 as per law. The respondent [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 16/18 No.3/insurance company is hereby directed to pay a compensation of Rs. 14,55,537.00, within one month. Following the judgment of [PRECEDENT] passed by Hon'ble Delhi High Court, the respondent No. 2 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the claimant.
32.The award amount alongwith interest be deposited by respondent no. 3, within 30 days in the court alongwith breakups under different heads. Copy of PAN Card of father of petitioner is given to Insurance company.
33.Out of total award amount, let an amount of Rs. 1,55,537/ be released in favour of the petitioner forthwith. Rest of the amount shall be kept in four FDRs of equal amount for a period of one to seven years with release of periodical interest to the petitioner. The amount be deposited in the Uco Bank, Karkardooma Court Complex.
34.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 send copy of notice to the counsel for petitioner at the address mentioned in the [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 17/18 Vakalatnama.
35.List for reporting compliance on 13.11.2014.
Announced in the open court (MS. [ENTITY]) on 23rd September 2014 [PRECEDENT] [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 18/18 Suit No.: 203/11 23.09.2014 Present: Counsel for the parties.
Vide separate order, an Award is passed in favour of Petitioner, as per which the respondent No.3/Insurance company, in the first instance, is liable to pay the compensation of Rs. 14,55,537.00 but with liberty to recover the same from respondent no.1 and 2 as per law. The respondent No.3/insurance company is hereby directed to pay a compensation of Rs. 14,55,537.00, within one month. Following the judgment of [PRECEDENT] passed by Hon'ble Delhi High Court, the respondent No. 2 shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the claimant.
The award amount alongwith interest be deposited by respondent no. 3, within 30 days in the court alongwith breakups under different heads. Copy of PAN Card of father of petitioner is given to Insurance company.
Out of total award amount, let an amount of Rs. 1,55,537/ be released in favour of the petitioner forthwith. Rest of the amount shall be kept in four FDRs of equal amount for a period of one to seven years with release of periodical interest to the petitioner. The amount be deposited in the UCO Bank, Karkardooma Court Complex.
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 send copy of notice to the counsel for petitioner at the address mentioned in the Vakalatnama.
List for reporting compliance on 13.11.2014.
(MS. [ENTITY]) PO MACT EAST DISTT/DELHI 29.08.2014 [PRECEDENT] [ENTITY] V/s. [ENTITY] & Ors. 19/18