IN THE COURT OF SH. [ENTITY], PRESIDING OFFICER- MOTOR ACCIDENT CLAIMS TRIBUNAL, SHAHDARA, KKD, DELHI Unique Case ID : 02402C0385282015 MACT No. 199/16 [ENTITY] S/o Sh. Rafiq, R/o H.No. 13433, T-Huts, New Seelampur, Delhi -110 032. Petitioner Versus 1. [ENTITY] S/o Sh. Ramesh Chand, R/o H. No. 414, Pappu Colony, Shahibabad, Ghaziabad, UP. Driver 2. [ENTITY] S/o Sh. Rohtash, H. No. 749, B-Block, Jahangir Puri, Delhi. Registered Owner MAC No.199/16 [ENTITY] Vs. [ENTITY] & Ors. 1/9 3. [ENTITY] Registered Office: H-1A/15, Sector-63, Noida, Uttar Pradesh Insurance Company Respondents Date of Institution : 08.10.2015 Date of Arguments : 28.11.2017 Date of Judgment : 04.12.2017 JUDGMENT:
1. Vide this judgment I shall dispose off this DAR filed by SHO PS Welcome with that facts that on 30/8/2015, at about 4:15 pm, injured [ENTITY] was going towards Baburpur bus terminal by his motorcycle bearing number DL-5S-AM- 7675 and reached near 100 Feet road when suddenly one Santro car bearing No. DL-8C-AE-3384 being driven by the driver in rash and negligent manner struck against his motorcycle and resulted into sustaining injuries by injured. It is further stated that driver [ENTITY] was apprehended by the public persons at the spot itself and PCR removed injured to GTB Hospital for treatment where MLC of injured was prepared. Doctor opined the injuries as simple. It is further stated that injured made a statement before the police on which basis FIR was lodged which followed by this DAR.
2. Respondent Nos. 1 & 2 i.e. Driver and Owner have failed to appear despite service and proceed Ex-parte vide order dated 24/02/2016.
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3. Respondent No. 3 has filed Legal Offer-cum-WS and offered Rs. 7,000/- in lieu of compensation to petitioner/ injured. Respondent has not taken any specific defense to contest of this petition.
4. From the pleading of the parties following issues are framed as under:
1. Whether respondent no. 1 was driving vehicle bearing No. DL-8C AE-3384 on 30.08.15 at 4:15 pm at Babarpur Bus Terminal, Delhi, in high speed and in rah and negligent manner and hit against the motorcycle bearing no DL-5SAM-7675 as a result its rider [ENTITY] petitioner sustained injuries? OPP
2. Whether the petitioner is entitled for any compensation, if so and for what amount? OPP
3. Relief.
5. To prove the case, injured has examined himself as PW1 [ENTITY], who has deposed that on 30/8/15 at about 4:15 pm, he was going towards Babarpur Bus Terminal by his bike No DL-5S-AM-7875 and one Santro car being driven by respondent [ENTITY] in very rash and negligent manner rammed into his bike and caused him injuries in his knee and all over the body. It is further deposed that a crowd had gathered at the spot and apprehended the Respondent No. 1 at the spot itself and informed PCR. PCR removed him to GTB Hospital where he was medically examined and his medical papers were prepared. It is further deposed that he has suffered mental pain and agony due to this accident took place due to the fault of the respondent. It is further deposed that he had been working a Halwai and earning Rs. 20,000/- pm and spent Rs. 60,000/- on his medical treatment, transport, special diet, attendant and MAC No.199/16 [ENTITY] Vs. [ENTITY] & Ors. 3/9 physiotherapy, but could not maintain bills. He has proved DAR Ex.PW1/1, treatment record Ex.PW1/2, medical bill Ex.PW1/C and DL is Mark A.
6. I have heard the arguments and perused the record. My issue-wise findings are as under:
Issue No. 1 :- The onus to prove this issue was fixed upon the petitioner and petitioner was examined himself as PW1. PW1 has deposed in-verbitum to the allegations in DAR. This DAR was filed by police on the basis of the accident caused by the driver of the offending vehicle by driving his vehicle in rash and negligent manner. The onus to prove this rash and negligent driving was on the injured who has brought the law into motion, however, this fact is not to be decided beyond doubt or in the similar manner as a fact is to be proved in civil or criminal cases. Rather it has to be proved on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition based upon negligence. The observation of the Hon'ble High Court made in [PRECEDENT] decided on 02.07.2012 is relevant that it has to be borne in mind that the [ACT] 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], the Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence.
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7. Further, the approach of the tribunal has also been defined by the Hon'ble Supreme Court in [PRECEDENT], 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 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. As such, the case of the injured has to be decided in view of the above said proposition in this case.
8. PW1 [ENTITY] is the main injured and witness to this case who has duly proved by his testimony that on 30/8/15 at about 4:15 pm, at 100 Feet road, respondent No. 1 was driving his offending vehicle No. DL-8C-AE 3383 in very rash and negligent manner and struck against his motorcycle no DL 5S AM 7675 and caused him injuries in leg and other lower portion of body. He got lodged an FIR No. 461/15 u/[SECTION] [ACT]. DAR which is Ex.PW1/A is containing this FIR, MLC and other medical record Ex.PW1/B (colly) as per which he sustained minor/ simple injuries. Site plan was prepared by the police during investigation which has proved the location of the spot of accident and mechanical inspection report of the offending vehicle has also corroborated that the front portion of vehicle was found in damaged condition and has proved the accident as it was head on struck of the offending vehicle against the bike of the injured. Vehicle of the injured was also found in damaged condition as per mechanical inspection report. The offending vehicle was also seized and got released on superdari during the investigation by the owner and this vehicle was duly insured with the respondent No. 3. Respondent No. 1 has also been charge-sheeted and facing trial before the criminal court. As such, it stands proved that the respondent No.1 caused the accident by his rash and negligent driving and resulted into the MAC No.199/16 [ENTITY] Vs. [ENTITY] & Ors. 5/9 injuries of the injured. Respondent No. 2 [ENTITY] is the owner of the offending vehicle is vicariously liable for this tortuous act of the driver and insurance company is responsible to pay this amount being insurer of the offending vehicle and has duly covered third party liability. Though respondent number 3 has contested this claim, yet it has no defense on merit. As such, issue no. 1 is decided in favour of petitioner and against the respondents.
9. Issue No. 2:- The onus to prove this issue was fixed upon the petitioner.
Petitioner has duly discharged the onus to prove issue no. 1 and this issue is also connected to issue no. 1. If respondents caused the accident by rash and negligent driving, then petitioner is entitled for the compensation and respondents are liable to pay the same.
10. The scope of the compensation in injury cases has been discussed by the Hon'ble Supreme Court in case titled Mr. [PRECEDENT] in the following words as under:
Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money-, whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may, include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
MAC No.199/16 [ENTITY] Vs. [ENTITY] & Ors. 6/9 In view of the above said law, the damages of the petitioner have to be decided under the following heads as under:
11. Reimbursement of medical expenses: Petitioner has proved medical bill Ex.PW1/C for Rs. 750/- and respondents have not disputed this bill and petitioner is entitled for reimbursement of this bill. Though petitioner has deposed that he spent Rs. 60,000/- on his treatment and transport, yet he has admitted that he did not maintain other bills, due to petitioner is not entitled for any other compensation under this head besides medical bill.
12. Pain and Suffering: PW1 has proved that he sustained injuries and also got himself medically examined and also received treatment and has proved medical documents Ex.PW1/B. It is not disputed that a person who sustained injuries is bound to suffer pain and suffering due to injured is entitled for some compensation under this head, though he has not proved any such serious injury.
13. Conveyance & special diet: Petitioner has not filed any bill of conveyance to prove that he spent any amount under this head. However, injured sustained leg injuries due to he is entitled for some compensation under the head of special diet.
14. Attendant charges: Petitioner has not proved that he confined to bed after the accident. Even there is no evidence on record that injured availed services attendant due to petitioner is not entitled for any compensation under this head.
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15. Lose of Income during treatment period: Petitioner has not proved any evidence that he lost some income during the treatment due to petitioner is not entitled for any compensation under this head.
16. Lose of disability: Petitioner is not entitled for any compensation under this head as he did not suffer any disability and no such disability has been proved on record.
17. Damages for inconvenience, hardship, discomfort, frustration and mental stress in life: Petitioner has not proved any such disfigurement or loss of amenities and enjoyment on record due to petitioner is not entitled for any compensation under this head.
As such, petitioner is entitled for the compensation as under:
1. Reimbursement of medical expenses: Rs. 750/-
2. Pain and Suffering: Rs. 10,000/-
3. Conveyance & special diet: Rs. 5,000/-
Total Rs. 15,750/ -
18. Liability: Petitioner has proved that the offending vehicle was insured with the insurance company i.e. Future General India Insurance Co. Ltd and insurance policy is already on record which was duly seized by the IO during investigation. Insurance Company has contested this petition before this court.
MAC No.199/16 [ENTITY] Vs. [ENTITY] & Ors. 8/9 The claimant is definitely a third party and there is no breach of insurance policy due to Insurance Company is liable to pay this compensation to the claimant being having statutory liability to pay compensation on behalf of Respondents No-1 and 2. Petition is allowed. Petitioner is entitled for compensation of Rs.
15750/- from the Respondent No. 3 i.e. Insurance Company with interest @ 9% p.a. from the date of filing of the petition till realization. Respondent No-3 is directed to give notice regarding deposit of said amount to the petitioner and his counsel. As such, petitioner has also discharged the onus to prove issue no. 2 and is decided in his favour.
Relief: -
AWARD This petition is allowed. Respondent No.3 i.e. Insurance Company is directed to pay a compensation of Rs. 15,750/- with interest @ 9% p.a. from the date of filing of the petition till realization to petitioner and deposit the award amount within one month from the date of this award. Copy of Form IV duly filled shall be treated as part of this award. Award amount be released to the injured/ claimant after deposit by the Respondent No. 3. [ENTITY] is directed to maintain a separate miscellaneous file regarding compliance of award. Put up for compliance on 05.01.2018. Main file be consigned to record room.
Announced in open court ([ENTITY]) On 04.12.2017 PO-MACT/SHAHDARA KARKARDOOMA COURTS, DELHI MAC No.199/16 [ENTITY] Vs. [ENTITY] & Ors. 9/9