IN THE COURT OF SH. [ENTITY] PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII, DWARKA COURTS, NEW DELHI 70/DAR/11 IN THE MATTER OF : 1. Shri [ENTITY] S/o Shri Muneshwar Singh, R/o Flat No. 227, Sector - 12, Pkt.IV, Dwarka. New Delhi. Permanent Add: R/o VPO Barail, P.S. Supaul, District Supaul, Bihar. Petitioner Versus 1. Shri [ENTITY], (Driver) S/o Shri Khazan Singh, R/o H. No. 57, Block H, Mohan Garden, New Delhi - 110 059. 2. Shri [ENTITY], (Owner) S/o Shri Basakha Singh, R/o H. No. G79, Kiran Garden, Uttam Nagar, New Delhi - 110 059. 3. The [ENTITY], (Insurer) A25/27, Asaf Ali Road, Delhi. 70 DAR/12 Sh. [ENTITY] v. Sh. [ENTITY] & Ors. Page 1 of 11 Respondents Filed on : 30.11.2011 Reserved on : 05.12.2012 Decided on : 15.12.2012 J U D G M E N T:
1. This report of Investigating Police Officer (DAR) was filed pursuant to FIR No. 238/11 under [SECTION] of [ACT], P.S. Dwarka South.
2. Perusal of chargesheet, which is part of this D.A. Report, shows that on 23.08.2011, petitioner was going on his Motorcycle (Bajaj Pulsar) bearing No. DL 9SAG 0752 from his house at Panchsheel Chowk, Dwarka to Sector7, Dwarka.
3. Around 8:45 A.M., when injured reached near Ashirwad Chowk, Dwarka one Indica Car bearing No. DL 4CU 4409 being driven by its driver in a rash and negligent manner hit the motorcycle of the petitioner, as a result of which, petitioner fell down on the road along with his motorcycle and suffered injuries on his leg.
4. Notice of this report was issued to Driver Respondent No. 1, Owner Respondent No. 2 and Insurer Respondent No. 3.
5. Respondent No. 1 filed reply denying each and every allegation against him in the D.A. Report.
6. Respondent No. 1 also stated that he has no liability towards the victim since on the date of accident, vehicle was insured by M/s. [ENTITY], vide Policy No. 214500/31/2011/8799 and the insurance period was w.e.f. 19.02.2011 to 18.02.2012.
7. Respondent No. 1 denied that Indica Car bearing No. DL 4CU 4409 had met with an accident due to rashness and negligence on the part of answering respondent. He also denied the allegation that he was driving the vehicle at a high speed.
8. Respondent No. 1 did not deny that he was arrested in this case but stated that he was having a valid Driving License valid upto 11.05.2023.
9. Therefore, Respondent No. 1 prayed that the claimant is not entitled for any compensation qua the answering respondent and prayed that he be released from present proceedings.
10. From the pleadings of parties, following issues were framed:
1. Whether the petitioner received injures in an accident on 23.08.2011 caused by Respondent No. 1, while driving car bearing No. DL4CU4409 rashly and negligently, owned by Respondent No. 2 and insured with Respondent No. 3? OPP
2. If yes, what is the amount of compensation which the claimant is entitled to receive and from which respondent? OPP
3. Relief.
11. Petitioner entered in the witness box as PW1 and proved his treatment record as Ex. PW1/1, certificate given to him by his employer as Ex. PW1/2, Election Identity Card as Ex. PW1/3 and his Driving License as Ex. PW1/4.
12. Besides stating that sequence of events resulting in the accident, petitioner stated that first he was treated for injuries in DDU Hospital. Thereafter, he was shifted to Mata Roop Rani Maggo Hospital, Uttam Nagar, New Delhi and he remained admitted there for three days and was discharged from there on 25.08.2011.
13. He stated that he is taking treatment from various private hospitals from time to time. He deposed that he was employed in a private Real Estate Company i.e. Khushi Properties and Developers at 301, Plot No. 9, Vikas Surya Galaxy, Sector 4, Central Market, Dwarka on the post of Site Supervisor and he was getting a salary of Rs. 12,000/ per month. He deposed that due to injuries suffered in the accident, he could not join his job for about six months and sustained financial loss more than Rs. 80,000/. He deposed that he has spent Rs. 5,000/ towards attendant's charges and Rs. 1,50,000/ on treatment of his injures and Rs. 50,000/ on conveyance and special diet.
14. In crossexamination, nothing worth noticeable came on record except for denial of suggestions contrary to the case of the petitioner.
15. Although petitioner examined one Shri [ENTITY], Director of Khushi Properties and Developers as PW2 who proved salary certificate as Ex. PW2/1, salary vouchers for the months of May, 2010 till September, 2011 as Ex. PW2/2, PAN Card as Ex. PW2/3 and his Visiting Card as Ex. PW2/4, however, he also admitted that salary vouchers were prepared today itself and there is no record in his concern regarding employment of the injured.
16. No other witness was examined by any other party.
17. Arguments were addressed by Shri [ENTITY], learned Counsel for the petitioner and Shri [ENTITY], learned Counsel for the insurance company.
18. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1:
19. Burden of proving this issue is on the petitioner.
20. 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.
21. This is sine qua non for getting the relief.
22. Petitioner filed his evidence by way of affidavit stating therein that he had suffered grievous injuries on 23.08.2011 at around 8:45 A.M. He was hit by the offending vehicle bearing No. DL 4CU 4409 which was being driven by Respondent No. 1 in a rash and negligent manner.
23. Respondent No. 1 filed his written statement and denied allegations of rash and negligent driving made against him.
24. Petitioner was not crossexamined on behalf of Respondent No. 1 and Respondent No. 1 did not enter in the witness box to prove his innocence.
25. Police after registration of FIR has filed charge sheet 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, therefore, made out.
26. 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"
27. 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 show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
28. 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 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]."
29. 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 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."
30. Therefore, this issue is decided in favour of the petitioner and against the respondents. ISSUE NO. 2:
31. 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.
32. Immediately, after accident, petitioner was taken to DDU Hospital where MLC shows that he had suffered grievous injuries.
33. As per Emergency Department Card of DDU Hospital, petitioner had suffered fracture of both bones lower leg right side.
34. After discharge from DDU Hospital, petitioner went to Mata Roop Rani Maggo Hospital for his further treatment where he remained admitted from 23.08.2011 till 25.08.2011 where close reduction and IL IM Nailing was done.
35. Therefore, for Pain and Suffering, petitioner is awarded a compensation of Rs. 20,000/.
36. Bill for treatment at Mata Roop Rani Maggo Hospital as well as receipts for purchase of medicines etc. worth Rs. 80,083/ are on record. Petitioner is entitled to recover this amount as Cost of Treatment.
37. Additionally, petitioner is entitled to receive a compensation of Rs. 5,000/ for Special Diet, Rs. 5,000/ for Conveyance Charges and Rs. 5,000/ for Attendant's Charges.
38. With the kind of injuries, it can be assumed that the petitioner would have remained out of work at least for a period of 3 months.
39. In view of evidence of employer, PW2, counsel for the petitioner did not press with his arguments that income of the petitioner at the time of accident was Rs. 12,000/ per month and stated that case be decided on the basis of minimum wages payable to an unskilled workman at the time of accident which were Rs. 6,422/ per month.
40. Therefore, for Loss of Wages, petitioner is entitled to a compensation of Rs. 19,266/ i.e. Rs. 6,422/ x 3.
41. Resultantly, total compensation payable to petitioner would be Rs. 1,34,349 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 03.11.2011 till its deposit in the Tribunal.
42. Insurance company has not proved any defence.
43. Therefore, compensation shall be deposited by insurance company within 30 days from today under intimation to the petitioner by registered post.
44. Copy of award be given dasti to all the parties.
45. File be consigned to the Record Room. Announced in the Open Court On the 15th day of December, 2012 ([ENTITY]) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.