IN THE COURT OF SHRI [ENTITY] PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII, DWARKA COURTS: NEW DELHI MACT No. 204/12 IN THE MATTER OF : Smt. [ENTITY], W/o Shri Hakim Singh, R/o House No. 777, Rajapuri, Bharat Vihar Road, Uttam Nagar, New Delhi - 110 059. Petitioner Versus 1. Shri [ENTITY], (Driver) S/o Shri [ENTITY], R/o House No. 844, Saini Mohalla, Beechwala Sahabad Mohammed Pur, New Delhi. Also At: RZD 70, Gali No. 4, Mahabir Enclave, Palam, New Delhi. 2. Shri [ENTITY], (Owner) S/o Late Shri Rishal Sital, R/o House No. 844, Saini Mohalla, Beechwala Sahabad Mohammed Pur, New Delhi. 3. ICICI Lombard General Insurance Company Ltd., (Insurer) Space No. 315, 3rd Floor, Aggarwal City Mall, Plot No. 4, Road No. 44, Pitampura, New Delhi. Respondents MACT No. 204/12 Smt. [ENTITY] Vs. Shri [ENTITY] & Ors. Page No. 1 of 13 Filed on : 14.02.2012 Reserved on : 06.11.2012 Decided on : 07.11.2012 J U D G M E N T:
1. This is a claim petition which is filed under [SECTION] and [SECTION] of the [ACT], 19[SECTION] for grant of compensation.
2. Respondent No. 1 is the Driver, Respondent No. 2 is the owner of the offending vehicle and Respondent No. 3 its insurer.
3. It is stated in this claim petition that on 07.10.2010, at about 2:45 p.m., petitioner after finishing her work at a Kothi at Sector - 10 was going towards market of Sector - 10, with her neighbour Smt. [ENTITY] and when they were crossing the road near Godrej Apartments, one Car bearing No. DL9CS9848, being driven at a very high speed, in a rash and negligent manner hit the petitioner.
4. It is stated that due to this forceful and sudden impact, petitioner fell down on the road and received severe injuries.
5. It is stated that FIR No. 278/11 was registered under [SECTION] of [ACT] against Respondent No. 1 in P.S. Dwarka South, New Delhi.
6. It is stated that petitioner regained consciousness at Ayushman Hospital and thereafter she was referred to J.P.N. Trauma Centre, AIIMS where she remained admitted till 21.10.2010.
7. It is stated that Transiliac Plating was done on 13.10.2010 and petitioner is still under active treatment and plating MACT No. 204/12 Smt. [ENTITY] Vs. Shri [ENTITY] & Ors. Page No. 2 of 13 is yet to be removed.
8. It is stated that petitioner has spent more than Rs. 1,00,000/ on her medical treatment, conveyance charges, medicines, special diet and attendance charges.
9. It is also stated that removal of Transiliac Plate shall be required in future for which another expenditure of Rs. 20,000/ will be needed.
10. She has deposed that she was working as a maidservant in various houses and due to the injuries, she has lost her job.
11. In these circumstances, petitioner has claimed a compensation of Rs. 5,00,000/ with interest @ 18% per annum from the respondents.
12. Respondent No. 1 and 2 have filed a common written statement stating that petitioner has failed to show any negligence on the part of Respondent No. 1 who was not negligent at any point of time.
13. It is also stated that the driver was having a valid driving license and vehicle was insured at the time of accident with ICICI Lombard Insurance Company under the Policy No. MAR10542867 dated 05.03.2010 and accident had taken place due to negligence of petitioner herself as she was crossing the road without taking any precaution as required. Petitioner was not crossing the road from the place which is provided for crossing the road. She had actually, all of a sudden, came before the vehicle after jumping on the road which resulted in accident. Respondent No. 1 was driving MACT No. 204/12 Smt. [ENTITY] Vs. Shri [ENTITY] & Ors. Page No. 3 of 13 the car with all precautions and that is why petitioner is alive today otherwise it would have been a case of fatal injuries.
14. It is stated that Respondent No. 1 had got petitioner admitted in a nearby hospital and had also informed her family members. Respondents had paid for medical expenses of the petitioner. Petitioner had informed the police not to initiate any action against Respondent No. 1 who was shocked to know that present proceedings were initiated against them after lapse of one year from the said incident.
15. It is also stated that present claim petition is filed only with ulterior motive to get more money.
16. Rest of the contents of claim petition were denied.
17. Written statement was also filed by insurance company where it took all the pleas under [SECTION] of [ACT] available to it and stated that if it is found that there is contravention of the provisions of [SECTION] of [ACT] or insurance company proves any defence under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT], and [SECTION] [ACT], in that case, petition be dismissed.
18. It is also an objection taken that if the driver of the vehicle was not holding a proper and valid driving license and vehicle was without a valid permit, fitness and registration certificate in that case, claim petition be dismissed.
19. However, it was admitted that the vehicle in question was insured by this insurance company in the name of Shri [ENTITY] valid for the period from 27.04.2010 to 26.04.2011.
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20. Rest of the contents of claim petition were denied.
21. From the pleadings of the parties, following issues were framed: i. Whether the petitioner received injuries in an accident on 07.10.2010 caused by Respondent No. 1 while driving vehicle i.e. car bearing No. DL9 CS9848 rashly and negligently? OPP ii. If yes, what is the amount of compensation which the claimant is entitled to receive and from which respondent?
iii.Relief.
22. Petitioner entered in the witness box as PW1 and proved certified copy of Chargesheet, FIR, Site Plan, Certificate cumPolicy Schedule, Mechanical Inspection report of the offending vehicle, RC, DL, MLC as Ex. PW1/AA, treatment record at J.P.N. Apex Trauma Centre was proved as Ex. PW1/B and bills for purchase of medicines were proved as Ex. PW1/C.
23. In crossexamination, she deposed that she does not know registration number of the offending vehicle; her sisterin law, Smt. [ENTITY] who had accompanied her at the time of accident knows the registration number who is an educated person. Suggestions given to her by counsel for insurance company contrary to her case were denied by her.
24. No other witness was examined by any other party.
25. Arguments were addressed by Shri [ENTITY], learned counsel for the petitioner and Shri [ENTITY], learned counsel for the insurance company.
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26. During the course of arguments, counsel for the petitioner stated that FIR was registered when petitioner filed application under [SECTION] of [ACT] before the Ld. Metropolitan Magistrate.
27. On the other hand, counsel for insurance company has argued that involvement of vehicle in question is disputed as no witness has given registration number of this vehicle. He argued that perusal of mechanical inspection report will not be of any help as the same was prepared in September, 2011 whereas the accident had taken place in October, 2010. He stated that so far as admission of Respondent No. 1 and 2 in their written statement that accident had taken place with their vehicle is concerned, there could be a collusion between petitioner and these respondents and that is why Respondent No. 1 and 2 have not entered in the witness box in defence of their case.
28. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO.1:
29. Burden of proving this issue is on the petitioner.
30. 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.
31. This is sine qua non for getting the relief.
32. Petitioner has stated in her claim petition that when she was crossing the road near Godrej Apartments, Sector - 10, MACT No. 204/12 Smt. [ENTITY] Vs. Shri [ENTITY] & Ors. Page No. 6 of 13 Dwarka, New Delhi, offending vehicle bearing Registration No. DL9CS9848 being driven in a rash and negligent manner hit her.
33. Respondent No. 1 and 2 have admitted that an accident was caused by the vehicle named in this claim petition but stated that accident took place due to her own negligence.
34. Respondent No. 1 and 2 have refuted allegations of petitioner that driver was driving the vehicle in a rash and negligent manner but the driver did not enter in the witness box to prove his innocence or to explain the manner of accident.
35. Since accident is admitted by Respondent No. 1 and 2 and police after registration of FIR has filed chargesheet against Respondent No. 1 under [SECTION] and [SECTION] of [ACT], prima facie negligence of Respondent No. 1 in driving the vehicle rashly and negligently resulting in accident is prima facie made out.
36. 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 MACT No. 204/12 Smt. [ENTITY] Vs. Shri [ENTITY] & Ors. Page No. 7 of 13 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]."
37. 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 respondentsclaimants 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 [CASE NUMBER], 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 required to be MACT No. 204/12 Smt. [ENTITY] Vs. Shri [ENTITY] & Ors. Page No. 8 of 13 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."
38. 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."
39. 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 appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to MACT No. 204/12 Smt. [ENTITY] Vs. Shri [ENTITY] & Ors. Page No. 9 of 13 show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
40. Therefore, this issue is decided in favour of petitioner and against the respondents. ISSUE NO. 2:
41. 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 MACT No. 204/12 Smt. [ENTITY] Vs. Shri [ENTITY] & Ors. Page No. 10 of 13 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.
42. As per XRay report of Ayushman Hospital, petitioner had suffered fractures bilateral superior pubic rami and right inferior pubic ramus; Segmental fracture of left inferior pubic ramus was also seen.
43. As per MLC, injuries suffered by petitioner are grievous.
44. As per discharge summary of Jai Prakash Narayan Apex Trauma Centre where petitioner had remained admitted from 10.11.2010 till 21.10.2010, the diagnosis is Polytrauma with fracture of B/L Sacrum Transiliac Plating was done on 30.10.2010. She was advised chest physiotherapy.
45. Therefore, for Pain and Suffering, petitioner is awarded a compensation of Rs. 35,000/.
46. Few receipts worth Rs. 2,604/ for purchase of medicines and payments given to Jai Prakash Narayan Apex Trauma MACT No. 204/12 Smt. [ENTITY] Vs. Shri [ENTITY] & Ors. Page No. 11 of 13 Centre are on record. Petitioner is entitled to receive this compensation for Cost of Treatment.
47. Petitioner was advised physiotherapy by treating doctors of Jai Prakash Narayan Apex Trauma Centre. In absence of any evidence of any physiotherapist engaged by petitioner and in absence of proof of payments given to a physiotherapist, on lump sum basis, petitioner is awarded a compensation of Rs. 10,000/ for Physiotherapist's Charges.
48. Petitioner is also awarded a compensation of Rs. 7,500/ for Special Diet and Rs. 5,000/ for Conveyance Charges.
49. Since Transiliac Plating will be required to be removed and even if such removal is at a Government Hospital, petitioner will incur additional expenses for conveyance, medicines and loss of earning capacity during those periods.
50. Therefore, on lump sum basis, petitioner is given a compensation of Rs. 3,500/ for Future Treatment.
51. With this kind of injuries, it is apparent that petitioner would have suffered loss of wages at least for a period of three months.
52. Minimum wages payable to an unskilled workman on the date of accident were Rs. 5,278/.
53. Therefore, for Loss of Wages, petitioner is entitled to a compensation of Rs.15,834/ i.e. Rs. 5,278/ x 3.
54. Resultantly, total compensation payable to petitioner would be Rs. 79,438/ which will be paid with interest @ 7.5% per annum (this is the rate of interest which is being awarded MACT No. 204/12 Smt. [ENTITY] Vs. Shri [ENTITY] & Ors. Page No. 12 of 13 by Hon'ble High Court of Delhi at present) from the date of filing of this claim petition which is 14.02.2012 till its deposit in the Tribunal.
55. Insurance company has not proved any defence.
56. Therefore, compensation shall be deposited by insurance company within 30 days from today under intimation to the petitioner by registered post.
57. Copy of award be given dasti to all the parties.
58. File be consigned to the Record Room.
Announced in the open Court On the 7th Day of November, 2012.
([ENTITY]) PRESIDING OFFICER MOTOR ACCIDENTS CLAIMS TRIBUNALII DWARKA COURTS: NEW DELHI MACT No. 204/12 Smt. [ENTITY] Vs. Shri [ENTITY] & Ors. Page No. 13 of 13