Delhi District Court
Shri Tek Chand Gupta vs Didar Singh on 12 October, 2010
IN THE COURT OF SHRI SANJAY KUMAR AGGARWAL
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL
(WEST), DELHI
Case No.:266/2010
Shri Tek Chand Gupta
Son of Sri Chand Gupta,
Resident of RZ-273C, Z Block,
New Roshanpura, Najafgarh,
New Delhi. .......Petitioner
VERSUS
1. Didar Singh
Son of Shri Jagdev Singh
R/o Village Bhadiaran, Tehsil Haroli,
Distt. Una (HP).
2. The New India Assurance Company Ltd.
124, Jeevan Bharti Building,
Connaught Place, New Delhi. ......... Respondents
Date of Institution: 14.07.2010 Date of reserving order/judgment: 08.10.2010 Date of pronouncement : 12.10.2010 AWARD
1. This Judgment-cum-Award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred as Act) filed by petitioner for grant of compensation for the injuries suffered by him in the road vehicular S-266/10 page 1 of 9 accident.
2. The case of the petitioner is that on 03.04.2010 at about 3.30 PM , while the petitioner was going on his scooter and while he reached at pillar no.744, main Najafgarh Road, Uttam Nagar, Delhi, in the mean while the offending vehicle a truck bearing registration number HR-38-R-4829 which was driven by its driver/respondent no.1 in a rash and negligent manner hit the petitioner's scooter from back side. As a result of impact, the petitioner fell down and received injuries. In total, the petitioner have claimed Rs.10,00,000/- as compensation on account of the injuries sustained by him in the accident.
3. The respondents number 1 failed to participate in the proceedings. The present proceedings were initiated by the police by filing the detailed accident report u/s 158 sub class 6 of the Motor Vehicle Act. The respondent No.2 insurance company failed to file the written statement despite various opportunities being granted to it by this Court. Finally the rights of the respondents to file the written statement was closed by learned predecessor of this Court vide order dated 21.08.2010. However, the respondent No.2 insurance company contested the claim of the petitioner till the end of the proceedings. It has come on record that the offending vehicle was insured with the respondent No.2 insurance company as on the date of accident.
4. No issues were framed in this case as the respondents failed to S-266/10 page 2 of 9 file the written statement despite opportunities being granted to them. However, to facilitate the present judgement, this Court shall decide the following issues:-
1.Whether petitioner suffered injuries in an accident that took place on 03.04.2009 at about 3.30 PM involving truck bearing No. HR-38R-4829 driven and owned by respondent no. 1 and insured with respondent no. 2?
2. To what amount of compensation the petitioner is entitled to and from whom?
3. Relief.
5. In order to establish its claim, the petitioner examined himself as PW 1. He was cross-examined at length by the counsel for the respondent no.2/insurance company. The respondents did not adduce any evidence in their defence.
6. I have thoroughly gone through the testimony of the witness and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the insurance company. My findings on various issues are as under :
ISSUE NO. 17. Since the present petition is under Section 166 of M V Act, it was the bounden duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
8. The petitioner has not filed the certified copy of the S-266/10 page 3 of 9 criminal record but the police have already placed the detailed accident report u/s 158 sub class 6 of the Motor Vehicle Act on record i. e the copy of FIR bearing No. 103/2010 P.S. Uttam Nagar under Section 279/338 IPC besides site plan etc.
9. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the competition of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also S-266/10 page 4 of 9 settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one. Therefore, reading all the documents filed by the petitioner as a whole it is clear that respondent no. 1 was driving the vehicle in rash and negligent manner.
10. The issue no. 1, therefore, stands in favour of the petitioner and against the respondents.
COMPENSATION :
NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
11. The MLC as contained in the detailed accident report filed by the police suggests that the petitioner was operated upon for fracture and dislocation of left shoulder, traction was given on left hip. He remained in hospital for five days as suggested by the discharge slip issued by Mata Roop Rani hospital. The petitioner has filed medical bills to the tune of Rs.72,660/-. I hereby grant a sum of Rs.73,000/- to the petitioner on account of reimbursement of the medical bills.
PAIN AND SUFFERINGS :
12. It is settled law that a particular amount can not be fixed on S-266/10 page 5 of 9 pain and sufferings for all cases as is varies from case to case. Judicial notice can be taken on the fact that since the petitioner had got injuries/fracture as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy dose of anti-biotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision:
2.2.2007, Delhi High Court by Hon'ble Mr. Justice Pradeep Nandrajog wherein it was held that:-
"On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
© Duration of the treatment."
13. Keeping in view the said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs. 25,000/- towards pain and sufferings and loss of amenities of life. Besides this, I hereby award a sum of Rs. 3000/- towards special diet and conveyance.
S-266/10 page 6 of 9 LOSS OF LEAVE :
14. The petitioner was stated to be doing service and was employee of a private firm. Though the petitioner has mentioned his income to be as Rs.7000/- per month, but no income proof has been filed. The medical documents filed by the police suggests that the petitioner could not have worked at least for four months for healing of the injuries sustained by him. Assessing the loss of income of the petitioner on account of the injuries sustained by him for the period during which he was under treatment on the basis of Minimum Wages Act, the total loss of income comes out to be Rs.21,112/-(5278X4).
The total compensation is assessed as under:-
Treatment expenses: Rs.73,000/-
Pain and sufferings: Rs. 25,000/-
Special diet and
conveyance : Rs. 3000/-
Loss of income : Rs. 21112/-
Total: Rs. 122112/-
RELIEF:
15. I award Rs. 1,22,112/- (Rupees one lac twenty two thousand one hundred twelve only) as compensation with interest at the rate of 7.5% per annum including interim award, if any from the date of filing the petition i.e., 14.07.2010 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and S-266/10 page 7 of 9 several.
APPORTIONMENT OF LIABILITY:
16. The respondent No: 2 being the insurer, its liability is joint and several with other respondents. Accordingly, respondent No. 2 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.
17. The Hon'ble High Court of Delhi in its latest judgment in MACA 682/05 dated 13.1.2010 Union of India Vs. Nanisiri 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. H S Rawat, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09717044322) or to UCO Bank through Mr. M M Tandon, 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. In terms of the order of the Hon'ble High Court of Delhi the S-266/10 page 8 of 9 insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Courts, Delhi in the name of the petitioner/ petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
19. 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 Courts, Delhi for opening the account.
20. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioner. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
21. Put up on 13.12.2010 for compliance report to be fixed by insurance company.
Announced in the open court
on 12thOctober, 2010 (SANJAY KUMAR AGGARWAL)
PO: MACT : NEW DELHI
S-266/10 page 9 of 9
Tek Chand Gupta vs. Didar Sing
12.10.2010
Present: None.
Judgment announced vide separate sheets of even date. Compliance report be filed in terms of the judgment on 13.12.2010.
(SANJAY KUMAR AGGARWAL)
PO: MACT(West) : Delhi
S-266/10 page 10 of 9