IN THE COURT OF SHRI [ENTITY] ADDITIONAL DISTRICT & SESSIONS JUDGE, JUDGE, MACT-2, (CENTRAL), DELHI. [PRECEDENT]-16 Unique Case ID No.02401C-0199332011 [ENTITY] Through his father/natural guardian Sh. Kamal Sharma R/o B-394, Rajeev Gandhi Road, Swaroop Nagar, Delhi-110042. PETITIONER Versus 1. Sh. [ENTITY] S/o Sh. Dharampal R/o Village Bajana Kalan P.S.Gannore, Distt. Sonepat, Haryana. (Driver) 2. [ENTITY]. (Owner) 3. [ENTITY] DO-X7, E-85, Himalaya House, 8th Floor, K.G.Marg, New Delhi-110001. (Insurer) RESPONDENTS Date of filing of Claim Petition : 04.07.2011 Arguments heard on : 28.05.2016 Judgment pronounced on : 27.08.2016 [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 1/20 JUDGMENT-CUM-AWARD: INFORMATIONINTERMSOFPROVISIONSOFTHEMODIFIED CLAIMTRIBUNALAGREEDPROCEDURE(MCTAP) 1 DateofAccident 07.02.2011 2 Date of intimation of the accident by the ProvidedbytheIOon08.02.2011 Investigation Officer to the Claims Tribunal (Clasuse2) 3 Dateofintimationoftheaccidentbythe 27/04/2013 Investigation Officer to the Insurance Company(Clause2) 4 DateoffilingoftheReportundersection173 04.07.2011 Cr.PC before the Metropolitan Magistrate (Clause10) 5 DateoffilingofDetailedAccidentInformation 04.07.2011 Report(DAR) by the Investigation Officer beforeClaimsTribunal(Clause) 6 Date of service of DAR on the Insurance 24.06.2011 Company(clause11) 7 Date of service of DAR on the claimant(s) 24.06.2011 (Clause11) 8 WhetherDARwascompleteinallrespects? Yes (Clause11) 9 IfnotstatedeficienciesintheDAR 10 Whether the police has verified the Yes documentsfiledwithDAR?(clause4) 11 Whethertherewasanydelayordeficiencyon Thepetitionwasfiledbythepetitioner. the part of the Investigation Officer? If so, ThereafterthepolicehavefiledtheDAR whetheranyaction/directionwarranted? withtheindulgenceofthecourt. 12 DateofappointmentoftheDesignatedOfficer The defence was taken by the insurancecompanyinthiscase. bytheInsuranceCompany 13 Name , address and contact number of the Sh [ENTITY], Deputy Manager, Designated Officer of the Insurance UnitedIndiaInsuranceCompany Company(Clause19) [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 2/20 14 Whether the Designated officer of the Yes. insurance Company submitted his report within30daysoftheDAR?(Clause21) 15 Whether the Insurance Company admitted They have not admitted as the DL of the liability? If so, whether the Designated driver(R1)wasfoundtobefake.The Officer of the Insurance Company fairly computed the compensation in accordance offendingvehiclewasinsuredasonthe withlaw.(Clause22) dateofaccident. 16 Whethertherewasanydelayordeficiencyon Writtenstatementfiledbytheinsurance the part of the Designated officer of the company. Insurance Company? If so whether any action/directionwarranted? 17 Date of response of the claimant(s) to the Legal offer was not given by the offeroftheInsuranceCompany?(Clause23) insurancecompany as the insurer has takenthedefence 18 DateofAward 03.08.2016 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 'Mentionedinaward' theclaimant(s)(Clause28) 23 Next Date of compliance of the 03.10.2016 award(Clause30) [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 3/20 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 grievous injuries suffered by the claimant [ENTITY]-Minor in a motor vehicular accident. 2. Brief facts of the case giving rise to the claim Petition are that on 07.02.2011 [ENTITY]-Minor along with other persons was travelling in a van when the said Van was hit by a DTC Bus bearing No. DL- 1PC-9040 owned by the Respondent No. 2 and being driven by the Respondent No. 1 in a rash and negligent manner and as a consequnce suffered injuries. he was taken to LNJP Hospital where he was treated upon. FIR No. 25/11 U/[SECTION] [ACT] was registered at PS Darya Ganj. It is further the case of the Petitioner that the claimant was a minor aged around 14 yrs as on the date of accident and was a student as on the date of accident. [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 4/20 PART-B DEFENCE OF DRIVER AND OWNER RESPONDENT No. 1 & 2 3. In the Written Statement filed on behalf of Respondent No.1 & 2/driver and owner of the offending vehicle, it was submitted that the accident had occurred on account of the fact that the Van in which the deceased was travelling tried to over take the offending vehicle and in this process took a wrong turn and in order to avoid collusion the Respondent No. 1 took necessary steps and as such as per the Respondents No. 1 & 2, the accident had occurred on account of the negligence on the part of the driver of the Van in which the deceased was travelling. [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 5/20 PART-C DEFENCE OF INSURANCE COMPANY RESPONDENT No. 3 4. In the Written Statement, Respondent No.3 [ENTITY] submitted that driving license of the Respondent No. 1 was not a valid DL being found to be fake during investigation by the IO and as such it denied its liability towards the claim on the ground that the Respondent No. 2 has violated the terms and conditions of the policy. [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 6/20 PART-D ISSUES 5. On the pleadings of the parties, following issues were framed for consideration vide order dated 18.10.2011 by ld. Predecessor:- (i) Whether the petitioner had suffered grievous injuries in road traffic accident on 07.02.2011 due to rash and negligent driving of vehicle No. DL-1PC-9040 by Respondent No.1? (ii) Whether the Petitioner is entitled to any compensation, if so, to what amount and from whom? (iii) Relief. [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 7/20 PART-E PETITIONER'S EVIDENCE 6. In support of the claim, Petitioner examined his grand father natural guardian [ENTITY] as PW-7. PW-7 testified on the lines of claim Petition regarding the accident. He further proved the medical treatment papers collectively vide Ex PW7/1 and medical bills collectively vide Ex PW7/2 respectively. [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 8/20 PART-F RESPONDENT'S EVIDENCE 7. The Respondent No. 1 examined himself as RW1. However, he could not prove by way of documentary evidence that his DL was valid as on the date of accident rather he proved a document Ex R1W/1 in order to argue that as per the said document, which is in the form of a report of RTO, Mathura, record concerning his licence is not available with the RTO Office. However, the said R1W1 instead of supporting the case of the RW-1/driver, rather reconfirmed the IO report which is also in the form of verification report from RTO Mathura and proved as RW1/X to the effect that the licence in question stands not issued in the name of the Respondent No. 1- Driver. The Respondent No. 3 also examined its witness Sh. [ENTITY] as R3W1 who again deposed to the effect of DL of the Respondent No. 1 being a fake licence. [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 9/20 PART-G FINDINGS/CONCLUSION 8. 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 petitioner had suffered grievous injuries in road traffic accident on 07.02.2011 due to rash and negligent driving of vehicle No. DL-1PC-9040 by Respondent No.1? 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 [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 10/20 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 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 [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 11/20 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." Counsel for insurance company contended that it has not been proved on record if the accident had been caused due to rash and negligent driving by Respondent No.1. In the instant case, during the cross examination of RW1-driver of the offending vehicle he has admitted that he has not filed any protest petition in any court w.r.t his so called false impleadment as an accused in the impugned FIR. 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 the offending vehicle of the Respondent No.1. Issue No. 1 is decided in favour of the Petitioner and against the Respondents. 9. 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 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. [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 12/20 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, 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 [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 13/20 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) 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. (a) Criteria for taking income of the Petitioner As far as the question of income of the petitioner is concerned, she being a minor school going child, the question of she being an earning person cannot arise and as such there cannot be any loss of income on account of accident suffered by her. (f) Pain and Suffering & Mental Agony As the petitioner met with an accident and suffered grievous injuries as a conseuence, he must have undergone mental trauma besides having suffered pain and suffering on account of the accident, he is awarded a sum of Rs. 50,000/- towards pain and suffering and mental agony. (g) Medicines and Medical Treatment Counsel for Petitioner contended that an amount of Rs. 881/- has been claimed towards the medical bills/treatment by the petitoiner which has not been disputed on behalf of insurance company. [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 14/20 Accordingly, Petitioner is awarded a sum of Rs. 881/- towards medical bills/treatment. (h) 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 Rs10,000/- (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. (i) 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 [ENTITY] V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), 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 claimant cannot be deprived of its benefit on the gain of the tortfeasor. Considering the nature of injuries, the compensation of Rs 2,000/- is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members. [PRECEDENT] 16 [ENTITY] [ENTITY] & Ors Page No. 15/20 10. As discussed above, the overall compensation is tabulated as under: Pain and Suffering Rs.50,000/- Medicines/Medical Treatment Rs. 881/ Conveyance Charges Rs.10,000/- Special Diet Rs10,000/- Attendant Charges Rs.2,000/-
Total Rs. 72,881/ (Rupees Seventy Two Thousand Eight Hundred Eighty One Only)
11. Relief Since the offending vehicle was duly insured, Respondent No.3/[ENTITY] is directed to deposit the award amount of Rs. 72,881/-with interest @ 9% per annum from the date of filing of DAR i.e. 04.07.2011 till realization with [ENTITY] of this Court within 30 days under intimation to the Petitioners, failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
PART-H APPORTIONMENT OF LIABILITY
12. I have taken the note of the submissions of the Ld. Counsel for insurer for recovery rights for the breach of the terms and condition of the policy as the offending vehicle was being driven by the Respondent No. 1 who was not holding a valid DL as on the date of accident.
The Respondents No. 1 & 2 have not led any evidence to prove that the Respondent No. 2 while employing Respondents No. 1 has taken/done necessary test/verification w.r.t the capability of the Respondent No. 1 to driver the vehicle as well as the genuineness of his DL and as such the Respondent No. 2 cannot be absolved of its liability.
13. In order to decide the defence raised by the Ld. Counsel for insurer, I am being guided by the judgment of Hon'ble High Court in [CASE NUMBER] in case title as '[PRECEDENT]' decided by Hon'ble Justice [ENTITY] wherein it Hon'ble High Court have relied upon its own judgment in case titled as '[PRECEDENT] wherein it was held as under:-
"23. Where the assured chooses to run away from the battle i.e fails to defend the allegation of having breach the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at he trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under [SECTION] of the [ACT] calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."
14. In view of the aforesaid judgments of Hon'ble High Court of Delhi and in view of the fact that the insurer have duly proved the breach of terms & conditions of the insurance policy, this court has come to the conclusion that the insurance company is entitled to recovery rights against Respondents No. 1 & 2, but only after the disbursement of claim to the claimants in terms of the judgment of the Hon'ble Supreme Court in [ENTITY]'s case, [PRECEDENT] (Supra).
15. The Respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, Respondent No.3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
16. The Hon'ble High Court of Delhi in its judgment in [CASE NUMBER] dated 13.1.2010 Union of India Vs. [ENTITY] have laid certain guidelines which are as under regarding depositing of award amount.
"The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. [ENTITY], Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09717044322) or to UCO Bank through Mr. [ENTITY], Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
17. It was further held in the judgment passed by Hon'ble High Court of Delhi in [ENTITY] case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its Nodal officer Mr. [ENTITY], Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09412341376) or to UCO Bank through Mr. [ENTITY], Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
18. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Branch for opening the account.
19. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioner.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 27.10.2016.
Announced in open court ([ENTITY]) on 27.08.2016 Judge MACT-2 (Central), Tis Hazari Courts, Delhi [PRECEDENT]-16 27/08/2016 Present: None.
Judgment announced vide separate sheets of even date. This file be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 27.10.2016.
([ENTITY]) JUDGE : MACT-02 (CENTRAL):DELHI