Delhi District Court
Shri Dalbir Singh vs Shri Ramesh Kumar on 24 September, 2012
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 27/11/09
IN THE MATTER OF :
1. Shri Dalbir Singh,
S/o Late Shri Inder Singh,
R/o H. No. 136,
Village Pochanpur,
Delhi - 110 075. ... Petitioner
Versus
1. Shri Ramesh Kumar, (Driver)
S/o Shri Hukam Chand,
R/o B36, Veena Enclave,
Nangloi, Delhi - 110 041.
2. Shri Ram Kishan, (Owner)
S/o Shri Umed Singh,
R/o 418, Indra Park,
Najafgarh, New Delhi - 110 043.
3. M/s. The Oriental Insurance Co. Ltd., (Insurer)
through its General Manager /
Regional Manager / Branch Manager,
Having its office at:
A25/27, Asaf Ali Road,
New Delhi - 110 002.
... Respondents
Filed on : 02.07.2009
Reserved on : 24.09.2012
Decided on : 24.09.2012
MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 1 of 33
J U D G M E N T:
1. This is a claim petition which is filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Respondent No. 1 is the driver, Respondent No. 2 is the owner and Respondent No. 3 is the insurer of the offending vehicle.
3. It is stated in this claim petition that on 26.10.2008, in the evening, at about 7:40 p.m., petitioner was going on his motorcycle bearing No. DL 9S M 1396, Hero Honda Passion Plus, from his office situated at R.K. Puram, New Delhi to his house situated in village Pochanpur, Delhi.
4. It is stated that when the petitioner reached near St. Mary's School, Sector 19, Dwarka, New Delhi, suddenly, the offending vehicle bearing Registration No. HR 46B 0500 Tempo, being driven by the Respondent No. 1 rashly, negligently, carelessly and at a high speed, came from behind and hit the petitioner from one side as a result of which the petitioner fell down on the road.
5. It is stated that petitioner received grievous injuries as a result of this accident but Respondent No. 1 without caring for the life of petitioner ran away from the spot.
6. It is stated that petitioner was removed to DDU Hospital and thereafter to Balaji Action Medical Institute where he was admitted in ICU for about 54 days.
MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 2 of 33
7. It is stated that FIR No. 825/08 dated 11.12.2009 was lodged in P.S. Dwarka under Section 279/338 of IPC against Respondent No. 1.
8. Petitioner was admitted in Balaji Action Medical Institute on 26.10.2008 and was discharged on 18.12.2008. A sum of Rs. 5,00,000/ was spent on his treatment.
9. It is stated that due to this accident, petitioner is suffering from unbearable pain in his right portion of whole body i.e. hand, chest, ribs, leg etc.
10. It is stated that petitioner is not able to speak properly as his voice is affected by the accident. What he speaks, others are not able to understand the words spoken by him.
11. It is also stated that petitioner is not able to eat properly which has resulted in deterioration of his health reducing his life span. Due to disfigurement, petitioner is feeling inferiority complex. Due to injuries, petitioner has started limping.
12. It is stated that petitioner has spent a sum of Rs. 6,00,000/ on medical treatment, conveyance and special diet and the expenses are continuing as petitioner is spending money on his treatment and medicines.
13. It is stated that due to mental and physical agony and pain, besides huge financial loss, petitioner is claiming a compensation of Rs. 30,00,000/.
14. It is stated that the period of admission of the petitioner in ICU for 45 days was full of sorrow, pain, sadness, psychological fear, danger and trauma for him as well as for his MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 3 of 33 family members who were not able to sleep or take food peacefully as there was a constant danger to the life of the petitioner.
15. It is also stated that the family members of the petitioner had to purchase blood which was necessary for his treatment.
16. Petitioner has claimed a compensation of Rs. 5,00,000/ for his inability to provide due care, love, affection and respect / attention to his family due to this accident.
17. It is stated that the family members of the petitioner have spent a sum of Rs. 1,00,000/ as transportation charges from their residence to Balaji Hospital in which petitioner had remained admitted for nearly 54 days. They used to engage a three wheeler for 24 hours at the cost of Rs. 1,500/ per day for which a sum of Rs. 82,500/ was spent as auto fare.
18. It is also stated that an attendant was also appointed who was given a sum of Rs. 1,000/ per day. Therefore, a sum of Rs. 55,000/ was given towards charges of the attendant.
19. It is stated that even after nine months of discharge from the hospital, petitioner is not in a position to join his office. As a result of this, he is not getting HRA of Rs. 7,000/ per month. As such, petitioner has lost a sum of Rs. 63,000/.
20. It is also stated that the petitioner has not received salary for nine months. Salary of petitioner per month was Rs. 30,000/. Therefore, petitioner has suffered a loss of Rs. 2,70,000/ in this regard.
21. It is stated that the wife of petitioner was giving MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 4 of 33 private tuitions and was earning Rs. 10,000/ per month but due to this accident, she is not getting time for tuitions and as such has lost a sum of Rs. 90,000/ in a period of nine months.
22. It is stated that petitioner has suffered a loss of Rs. 20,000/ as he is denied an increment which was due for the last nine months.
23. It is stated that petitioner is spending Rs. 10,000/ per month on his medicines.
24. It is stated that children of petitioner were students of class 8th and 10th at the time of accident. Their studies are disturbed due to the accident for which petitioner has claimed a compensation of Rs. 1,00,000/.
25. It is stated that petitioner is consuming special diet of Rs. 10,000/ per month.
26. It is stated that due to injuries suffered in the accident, petitioner was admitted in the hospital again on 21.08.2009 and was discharged on 08.09.2009. This time, a sum of Rs. 2,00,000/ was spent by the petitioner on his treatment.
27. It is stated that for second admission of the petitioner in the hospital, a sum of Rs. 1,00,000/ was spent on an attendant and Rs. 3,00,000/ on transportation.
28. For admission of petitioner second time in the hospital, the petitioner has claimed a compensation of Rs. 7,00,000/ for mental and physical pain and agony.
29. Petitioner has claimed a compensation of Rs. 10,00,000/ against the expenses incurred and mental and physical MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 5 of 33 pain suffered during admission in the hospital.
30. Finally, petitioner has claimed a total compensation of Rs. 40,00,000/ with interest @ 24% per annum from the date of accident till its realization.
31. Respondent No. 1 and 2 filed a common written statement and stated that this claim petition is without any cause of action; the alleged accident did not take place due to negligence of Respondent No. 1; FIR in question is false as Respondent No. 1 did not commit any alleged offence as mentioned in the FIR and false case is registered against Respondent No. 1. It was also stated that vehicle No. HR 46B 0500 is not the offending vehicle as alleged in this claim petition. However, it is stated that Respondent No. 1 was having a valid driving license and the vehicle was insured by Respondent No. 3. Therefore, compensation, if any, shall be payable by Respondent No. 3.
32. Respondent No. 3 has stated in its written statement that in case it is proved that the alleged vehicle is involved in the accident, insurance company cannot be held liable to pay the amount of compensation to the petitioner unless and until it is proved that the driver of the alleged vehicle was having a valid and effective driving license at the time of accident and was not disqualified to obtain the same.
33. It is stated that insurance company cannot be held liable if the said vehicle was sold or transferred by the insured before the date of accident or was being plied without a valid permit.
34. It was admitted that vehicle / Tempo No. HR 46B MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 6 of 33 0500 was insured with the answering respondent at the relevant time vide Policy No. 214500/31/2008/1726 valid w.e.f. 16.08.2008 to 15.08.2009 in the name of Respondent No. 2 subject to terms, conditions and limitations of policy.
35. It is stated that petitioner has claimed an exorbitant amount as compensation. The accident, if any, had taken place due to fault and negligence of the petitioner who was driving his motorcycle in a rash and negligent manner and therefore, answering respondent cannot be held liable to pay any compensation to the petitioner as insurer of the vehicle.
36. Rest of the contents of claim petition were denied.
37. From pleadings of the parties, following issues were framed: i. Whether petitioner Dalbir Singh had sustained injuries on his person in an accident which took place on 26.10.2008 due to negligent driving of vehicle bearing registration number HR46B0500 which was being driven in a negligent manner by Respondent No. 1, owned by Respondent No. 2 and insured with Respondent No. 3? .... OPP ii. In case, issue no. 1 is decided in affirmative then to what amount of compensation, petitioner is entitled and from whom?
iii. Relief.
38. Petitioner entered in the witness box as PW1 and stated similar facts in his evidence by way of affidavit as were already stated by him in the claim petition. FIR, MLC, Election Identity Card of petitioner, Identity Card given to the petitioner by his employer MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 7 of 33 (CRPF), treatment record at Sri Balaji Action Medical Institute, receipt of payment given to Sir Ganga Ram Hospital, Patients Registration Form, receipts of chemists, receipts of Saroj Hospital and Heart Institute, Lions Blood Bank, receipts of Balaji Medicos, Insurance policy of the offending vehicle and its RC were proved as Ex. PW1/1 to Ex. PW1/20. Ex. PW1/21 is a bill of Sri Balaji Action Medical Institute for admission of petitioner in that hospital on 21.08.2009 and discharged on 08.09.2009. Disability certificate of DDU Hospital dated 12.03.2010 stating that petitioner has suffered post traumatic optic atrophy right visual disability 30% which is permanent in nature was proved as Ex. PW1/22 and disability certificate of DDU Hospital dated 28.05.2010 stating that petitioner has suffered right hemiparesis and disability is 54% and is permanent in nature. It is mentioned in this disability certificate that hemiparesis is because of injury sustained on 26.10.2008.
39. In crossexamination, petitioner deposed that he is working with CRPF but not attending his duties due to physical disability. He admitted that he has not filed any leave record along with his affidavit but denied a suggestion that he is attending his office. Petitioner stated that he had lodged the complaint with the police but again said the same was lodged by his brother and he does not remember when the complaint was lodged with the police. He did not remember whether his statement was recorded by the police in the hospital or not. He denied a suggestion that he was under the influence of liquor on the date of accident. (In the MLC, it is noted that patient is unconscious and smelling of liquor). He MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 8 of 33 stated that he was driving his motorcycle in the middle portion of the road. He had a valid DL issued to him by licensing authority but he had not brought the same in the Court on the date of his examination. He stated that the offending vehicle came from back side and struck against his motorcycle. He denied a suggestion that the accident took place due to his own negligence as he was under
the influence of liquor. He stated that it might be correct that a sum of Rs. 4,17,600/ and Rs. 2,70,000/ were paid directly by his Department to hospital authorities. He stated that besides this amount, he had incurred a further sum from his own pocket but admitted that payment made by him to Sri Balaji Action Medical Institute was received back from the hospital as his department had made the payment to the hospital authorities. He stated that he has not placed any medical prescription to the affect that he was physically disabled to perform his matrimonial life. He denied a suggestion that he has not spent Rs. 1,00,000/ on conveyance, Rs. 82,000/ on auto charges and Rs. 55,000/ towards attendant's charges. He admitted that he has not filed any documentary evidence to show that he has suffered loss of HRA from his office amounting to Rs.63,000/. He stated that his wife is a matriculate but denied a suggestion that she cannot give tuitions.
40. He admitted that on 21.08.2009, he had fallen from roof of his house for which he was admitted in the hospital and got discharged on 08.09.2009.
41. Petitioner was given permission to file additional evidence by way of affidavit to enable him to place on record bills of MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 9 of 33 expenses incurred by him on his treatment which were exhibited as Ex.PW1/24 numbering 44 and the petitioner also placed on record certified copy of chargesheet and other documents from the records of criminal case which were proved as Ex. P1.
42. In crossexamination, he denied a suggestion that the bills which he has placed on record are forged and fabricated as he has not filed any corresponding prescriptions along with the bills. He admitted that he had not filed OPD Card or other medical record to prove that his treatment is still continuing.
43. Second witness examined by the petitioner was a clerk from DDU Hospital who proved disability certificates which were already exhibited as Ex. PW1/22 and Ex. PW1/23. She deposed that she has no personal knowledge about the two disability certificates.
44. Third witness examined by the petitioner was PW3, Shri Mukesh Kumar, SIM, DC, CRPF, Noida. He deposed that due to injuries sustained by the petitioner in an accident he remained on leave from 26.08.2008 to 09.06.2010 i.e. a total period of 592 days. For his absence from duty for these 592 days, the department has regularized the same as 90 days leave was treated as earned leave i.e. from 26.10.2008 to 23.01.2009. Thereafter, 340 days leave was treated as half pay leave i.e. from 24.01.2009 to 29.12.2009. Thereafter, for 162 days, petitioner was treated on extraordinary leave from 30.10.2009 to 09.06.2010 for which period, petitioner was not given any salary. This record was proved as Ex. PW3/A. He deposed that it has also been ordered by the department that extra MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 10 of 33 pay which had been paid to the petitioner shall be deducted from his salary from the forthcoming months which amounts to Rs. 2,87,230/.
45. In crossexamination, he deposed that petitioner has joined duties from 10.06.2010.
46. Fourth witness examined by petitioner was H.C. R.N. Parikh, IGP, CRPF Camp, who produced salary details of the petitioner for the months of SeptemberNovember, 2008 as Ex. PW4/A.
47. Fifth witness examined by the petitioner produced standing order 4/8Health Care System in Paramilitary Forces which was exhibited as Ex. PW5/1.
48. No witness was examined by any of the respondents.
49. Written arguments were filed by Shri O.P. Bharti, learned Counsel for petitioner and written arguments were also filed by Shri Ravi Satija, learned counsel for insurance company.
50. On the basis of pleadings of the parties, evidence on record and written arguments filed on record, issuewise findings are as under: ISSUE NO.1:
51. In the written arguments filed on record on behalf of petitioner, in support of his arguments that the accident was caused due to rash and negligent driving of Vehicle No. HR 46B 0500 by Respondent No. 1, petitioner has stated that Respondent No. 1 did not care for the life of petitioner and ran away from the spot MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 11 of 33 after the accident. Police has registered FIR No. 825/08 dated 11.12.2009 in P.S. Dwarka under Section 279/338 of IPC. It is further stated that Respondent No. 1 and 2 did not contest the case and after filing written statement they did not appear before this Court because they were having no defence at all and that is why they could not contest the present claim petition.
52. It is also stated that no evidence in rebuttal was brought on record on behalf of Respondent No. 3 which amounts to admission by Respondent No. 3 of the case of the petitioner.
53. It is stated that insurance company could not prove that the mistake was on the part of the petitioner or that the accident occurred because of any influence of alleged liquor.
54. Reliance is placed on Rudra Vs. National Insurance Company : 2011 Rajdhani Law Reporter 38 (NSC) which is C.A. No. 2695 of 2011 dated 18.03.2011 decided by the Hon'ble Supreme Court of India in support of submission of petitioner that even if he was drunk at the time of accident, still he is entitled to compensation.
55. On the other hand, in the written submissions filed on behalf of insurance company, first of all the main submission of Respondent No. 3 is that the involvement of the vehicle is not proved in the present case. The accident is alleged to have taken place on 26.10.2008 while FIR was registered on 11.12.2008 i.e. after about 45 days of the alleged accident. In the FIR, the number or the description of the vehicle which caused the alleged accident had not been mentioned. Later on, police officials of the concerned MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 12 of 33 Police Station had falsely implicated the aforesaid vehicle in the alleged accident.
56. It is stated that even if it is proved that the petitioner had met with the alleged accident then in the MLC of the petitioner it has been mentioned that he was under the influence of alcohol which means that the petitioner himself was responsible for the alleged accident. Thus, petitioner cannot be allowed to take the benefit of his own wrong and thereby he is not entitled for any compensation from the answering respondent.
57. In view of written arguments of both the sides, the question which is to be answered is whether Vehicle No. HR 46B 0500 while being driven by Respondent No. 1 has caused the accident and whether Respondent No. 1 was driving the said offending vehicle rashly and negligently.
58. In the MLC, it is noted that it is a case of alleged history of road traffic accident. Petitioner was unconscious when he was brought in the hospital by the police.
59. The FIR was recorded on 11.12.2008 on the complaint of one Shri Sanjay Kumar son of Shri Ram Chander who stated that he is a property dealer and on 26.10.2008, around 7:40 p.m., he was passing through the St. Mary's School road. A tempo which was going ahead of him had hit a motorcyclist and had sped away from the spot. He stated that he could not note Tempo number but motorcycle number was DL 9SM 1396 Hero Honda Passion Plus and the motorcyclist had suffered head injuries and was bleeding from the head. PCR had come to the site of accident and had taken MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 13 of 33 the injured to the hospital. He stated that today i.e. 11.12.2008, he was passing through police station and inquired about the incident of that date and came to know that the injured is still under treatment in the hospital.
60. Perusal of FIR further reveals that Investigating Officer Head Constable Anand Kumar on receiving DD No. 19 had reached the place of accident where motorcycle of the petitioner was found in an accidental condition and on inquiry IO came to know that injured is removed to DDU Hospital by PCR. At DDU Hospital, he found that petitioner was under treatment and was later on shifted to Balaji Hospital but doctor found him unfit for statement. IO did not meet any Eye witness at the site of accident or in the hospital till the registration of FIR. Petitioner was unfit for statement and when Shri Sanjay Kumar got his statement recorded in the Police Station, present FIR was registered.
61. As per chargesheet, on 31.03.2009 driver of Tempo No. HR 46B 0500 surrendered in the Court of ACMM, who during his interrogation disclosed that on 26.10.2008 he was passing through the road of St. Mary's School and around 7:40 p.m. Tempo No. HR 46B 0500 had hit motorcycle from one side resulting in injuries to the motorcyclist. Due to fear he ran away with his tempo from the place of accident and on humanitarian ground he had appeared in the Court. He stated that he has committed a mistake and he be pardoned.
62. In his statement recorded by the police, Respondent No. 1 has deposed that the accident had occurred as he MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 14 of 33 wanted to save his tempo from a pit on the road and in the process the accident took place.
63. The said Shri Ramesh Kumar, Respondent No. 1, was arrested on 31.03.2009.
64. Police has also recorded statement of petitioner on 08.08.2009 where petitioner stated that his motorcycle was hit by Tempo No. HR 46B 0500 from one side. The tempo driver had got down from the tempo to look at the petitioner but thereafter he ran away. He identified the tempo driver also who had caused the accident.
65. Police had also recorded the statement of Shri Sanjay Kumar who stated that on 31.03.2009 he was present in the Dwarka Court premises. He has seen Respondent No. 1 who had caused accident on 26.10.2008 and had thereafter ran away from the place of accident.
66. The defence of Respondent No. 1 in written statement is that the FIR is false as Respondent No. 1 did not commit any alleged offence as mentioned in the FIR.
67. However, the contest of this claim petition ended at that and Respondent No. 1 neither crossexamined the petitioner who claims that he had seen the driver of the offending vehicle and had given the details of offending vehicle when he regained consciousness nor respondent no. 1 entered in the witness box to prove his innocence.
68. Even Respondent No. 2 did not enter in the witness box to prove that vehicle owned by him which is the alleged MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 15 of 33 offending vehicle in this claim petition was not involved in accident in question.
69. Respondent No. 3 in its written statement has not taken a defence that the insured vehicle was not involved in the accident as alleged. The stand taken by insurance company is that even if it is proved that the alleged vehicle is involved in the alleged accident, the answering respondent cannot be held responsible to pay the amount of compensation to the petitioner unless and until it is proved that the driver of vehicle i.e. Respondent No. 1 was having a valid and effective driving license at the time of alleged accident and he was not disqualified to obtain or hold the same.
70. Insurance company has not brought on record any evidence to show that the insured vehicle was not involved in the accident.
71. There is no allegation of collusion between petitioner on the one hand and Respondent No. 1 and 2 on the other hand, to procure compensation from insurance company by falsely implicating the insured vehicle. In absence of any pleadings and evidence in this regard, it cannot be alleged that there is a collusion among the injured, insured and driver of the vehicle. It is not even the argument of insurance company that there is any collusion among the three named above to procure compensation from the insurance company by falsely implicating the insured vehicle in this accident.
72. Test of involvement of a vehicle in accident and test of rash and negligent driving by its driver in a claim petition under MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 16 of 33 Section 166 of Motor Vehicles Act is not beyond all reasonable doubts as is the test in the case of a criminal trial.
73. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, 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 small inquiry and thus legislation for the whole of the society"
74. This case was noticed by Hon'ble High Court of Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 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 MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 17 of 33 vehicle so as to falsely implicate him in the case.
75. Respondent No. 1 and 2 have not filed any protest application before any senior Police Officer complaining against false implication of Respondent No. 1 and the vehicle of Respondent No. 2 in the accident in question. Rather they have ran away from the trial which raises a presumption in favour of petitioner that Respondent No. 1 and 2 had nothing to show in defence of their innocence.
76. In the case of National Insurance Co. Ltd. Vs. Vijay Laxmi & Ors.: MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 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 Motor Vehicles 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 necessary 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 Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 18 of 33 Kusum Lata v. Satbir, (2011) 3 SCC 646."
77. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held as under: "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 Oriental Insurance Co. Ltd. v. Meena Variyal (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 F.I.R No. 955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of charge sheet under Sections 279/304A, Indian Penal Code 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 Motor Vehicles 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."
78. Therefore, this issue is decided in favour of petitioner and against the respondents holding that petitioner has MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 19 of 33 suffered injuries on his person in an accident caused by rash and negligent driving of Respondent No. 1 while driving offending vehicle HR 46B 0500.
79. However, as per certified copy of MLC filed on record by petitioner himself, it is noted that petitioner was smelling of alcohol when he was taken to DDU Hospital in an unconscious state.
80. Admittedly, extent of consumption of liquor was not noted by the duty doctors on the MLC but it is an admitted fact that petitioner was under the influence of liquor at the time of accident.
81. Consumption of liquor numbs the response of a person who is under its influence. It cannot be ruled out that if petitioner was not under the influence of liquor at the time of accident, he, by his active response may have avoided the accident. Therefore, petitioner was partly responsible for the accident in question.
82. The facts of the case of Rudra (supra) relied upon by counsel for petitioner are different from the facts of present case inasmuch as in the case of Rudra (supra) the injured was walking on the road when a bus at a high speed hit against him. In these circumstances, it was held by the claims Tribunal that smell of alcohol did not mean that bus driver was not required to be cautious.
83. In this case, petitioner was himself driving a motorcycle under the influence of liquor.
MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 20 of 33
84. In the case of Jai Prakash Vs. Mohd. Munawar & Ors: MAC Appeal No. 634/12 decided by Hon'ble High Court of Delhi on 14.08.2012, findings of Claims Tribunal of contributory negligence of petitioner to an extent of 50% was upheld as it was a head on collision and the injured was under the influence of liquor.
85. Present case is not a case of head on collision. Therefore, in the facts and circumstances of this case, it is held that petitioner was responsible to an extent of 25% for contributing to the accident as he was driving a motorcycle in a drunken condition. ISSUE NO. 2:
86. In the case of Raj Kumar v. Ajay Kumar & Anr.: ACJ 2011 (Vol. I), 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 MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 21 of 33 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.
87. As per MLC and chargesheet, nature of injuries are simple.
88. However, petitioner was treated at Sri Balaji Action Medical Institute from 26.10.2008 to 18.12.2008. He remained in surgical ICU for 45 days. He had to undergo tracheostomy. He was on ventilator and was getting respiration with piped oxygen. Discharge summary with regard to admission of the petitioner in hospital is not on record. However, as per Ex. PW1/22, petitioner has suffered post traumatic optic atrophy right visual disability 30% (Thirty per cent) permanent. As per Ex. PW1/23, petitioner has suffered right hemiparesis which is disability 54% (Fifty four per MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 22 of 33 cent) which is permanent in nature. It is mentioned in the disability certificate that it is evident from the records that hemiparesis is because of injury sustained on 26.10.2008.
89. Although petitioner was admitted in hospital second time again on 21.08.2009 and discharged on 08.09.2009 but the said admission was necessitated as petitioner had fallen from the roof of his house. Therefore, said admission in the hospital cannot be taken into consideration for determining the compensation payable to the petitioner for pain and suffering.
90. However, for injuries suffered by the petitioner in the accident, for which he had remained admitted in Sri Balaji Action Medical Institute from 26.10.2008 till 18.12.2008, for Pain and Suffering, petitioner is given a compensation of Rs. 1,00,000/.
91. Petitioner has admitted in his crossexamination that the payment made by him to Sri Balaji Action Medical Institute was received back from the hospital as his department had made the payment to the hospital authorities. He stated that a sum of Rs. 4,17,600/ and Rs. 2,70,000/ might have been paid directly by his department to the hospital authorities. Therefore, no compensation is to be given to the petitioner for cost of medical treatment.
92. Petitioner has not proved any bill of chemist for purchase of medicines for the treatment of injuries suffered in the accident. There are certain receipts of chemists which are Ex. PW1/24 for purchase of medicines. However, there is no corresponding prescription slip to match the purchase of these medicines. Furthermore, these medicines have been purchased MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 23 of 33 after fall of petitioner from the roof of his house. Therefore, it cannot be ascertained whether these medicines were consumed by the petitioner for treatment of injuries suffered in the accident or for injuries suffered due to fall from roof top.
93. Petitioner is an employee of CRPF. All his cost of medical treatment was paid by his employer. There is no reason for petitioner to purchase any medicine which is not prescribed by his treating doctor or which could not be reimbursed from his employer.
94. However, in view of prolonged treatment resulting in permanent disability, petitioner is granted a compensation of Rs. 25,000/ for Special Diet.
95. Petitioner had remained admitted in Sri Balaji Action Medical Institute for nearly two months. He is permanent resident of village Pochanpur which is at a considerable distance from Sri Balaji Action Medical Hospital Institute which is at Paschim Vihar.
96. Petitioner has stated in his evidence by way of affidavit that when the petitioner was admitted in Balaji Hospital for 54 days his family members had hired a three wheeler for 24 hours which costed Rs. 1500/ per day and a sum of Rs. 82,500/ was given towards Auto Charges. This submission of petitioner was questioned by counsel for insurance company in his cross examination. Petitioner has not examined the three wheeler driver who was engaged for this purpose. However, considering the fact that the residence of petitioner at Pochanpur was at a considerable MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 24 of 33 distance from Balaji Hospital at Pashchim Vihar and conveyance was required for family members to visit the hospital where petitioner was admitted and thereafter to visit doctors for OPDs after discharge of petitioner from the hospital, a sum of Rs. 40,000/ is granted as compensation for Conveyance Charges.
97. Petitioner had to proceed on leave due to this accident. Even if salary is given for leave period, even then, compensation for leave is to be given as petitioner was constrained to avail the leave due to the accident.
98. PW3, a witness from CRPF where petitioner is employed has stated that petitioner had availed 592 days leave from 26.10.08 till 09.06.10. It has already come in the evidence of petitioner that on 21.08.09 he had fallen from the roof of his house for which he was admitted in the hospital and discharged only on 08.09.09. Therefore, compensation for leave can be given to the petitioner from 26.10.08 till 21.08.09 i.e. nearly for ten months.
99. PW4, another witness from CRPF has proved pay slip of the petitioner for the month of September, October and November, 2008 as Ex. PW4/A. As per these pay slips, gross pay of the petitioner was Rs. 27,282/ per month at the time of accident. However, in these pay slips a sum of Rs. 1856/ is also added towards transport allowance which cannot be treated as part of salary. After deducting transport allowance from the gross salary, a sum of Rs. 25,426/ can be taken as loss of income per month, suffered by the petitioner due to this accident. Therefore, a sum of Rs. 2,54,260/ (i.e. Rs. 25,426/ x 10) is the compensation payable to the petitioner MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 25 of 33 for Loss of Wages due to this accident.
100. As per disability certificates which are Ex. PW1/22 and 23 petitioner has suffered post traumatic optic atrophy right visual disability 30% (thirty percent) permanent. He has also suffered right hemi parasis and disability is 54% which is permanent in nature. A note is appended in the disability certificate that hemi parasis is because of injury sustained on 26.10.08.
101. Hemiparesis literally means 'half paralysed' in latin. The term refers to a medical condition wherein a patient suffers partial paralysis on one side of the body. This condition is after the result of a stroke or some other attack on the brain cells. Car accidents, the onset of dementia and brain diseases can also cause this condition.
102. Age of petitioner at the time of accident was 39 years. Half body of the petitioner is partially paralysed. That shows that he cannot perform his day today activities without the assistance of an attendant.
103. Petitioner has stated in his evidence by way of affidavit that his wife gives help to him when petitioner gives the answer to the call of nature.
104. Even if gratuitous services were rendered by a family member of the petitioner, even then petitioner is to be compensated for services of an attendant as he is constrained to take the help of an attendant only due to the accident. Reliance can be placed on the judgment of Hon'ble High Court of Delhi in the case of Narain Bahadur v. Sumeet Gupta & Anr. in MAC APP. No. MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 26 of 33 762/11 dated 04.07.12 where reference was also made to the judgment in the case of DTC v. Lalita AIR 1981 Delhi 558.
105. The date of accident is 26.10.08. Minimum rates of wages payable to an unskilled workman at that time were Rs. 3683/ per month.
106. Petitioner has to be compensated for charges of an attendant for the rest of his life. Therefore, on the basis of judgment of Hon'ble Supreme Court in the case of Sarla Verma v. DTC 2009 (6) Scale 129, atleast for a period of 15 years petitioner will need assistance of an attendant.
107. In the case of Gulam Nabi Bhat v. Md. Arman Ali & Ors., MAC APP. No. 335/09 dated 07.08.12, the Hon'ble High Court of Delhi awarded compensation for Attendant's charges @ Rs. 2000/ per month. In that case, the date of accident was 16.10.06 and minimum rates of wages in Delhi for an unskilled workman were Rs. 3312/ per month. Therefore, 60% of minimum rates of wages of an unskilled workman were given as compensation for Attendant's Charges. In this case, date of accident is 26.10.08. Minimum rates of wages of an unskilled workman were Rs. 3683/ per month. 60% of same is Rs. 2209/.
108. Thus calculated, petitioner would be entitled to a compensation of Rs. 3,96,000/ towards Attendant's Charges (i.e. Rs. 2200/ x 12 x 15).
109. Next question is whether petitioner has suffered any loss on account of future prospects.
110. PW4 has stated that petitioner is still in service.
MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 27 of 33 Inspite of suffering disability he is still part of CRPF.
111. PW5, a summoned witness from CRPF, had proved on record standing order no. 4/8 subject 'Health care system in Central Para Military Forces - instructions for medical examination and classification of personal in CPMF's. As per clause 4.13 which is mandatory for the purpose of promotion, it is mentioned as under: "Medical Category SHAPE1 will be an essential condition for promotion of all combatised personal in all groups/ranks/cadres in the CPMF's. In case of those whose illness is of permanent nature and who are not SHAPE1, they will be considered for promotion by DPC but will be declared unfit for promotion, even if, they are otherwise fit for promotion".
112. Petitioner has not stated in his claim petition or in his evidence by way of affidavit that he has suffered any financial loss due to this accident for loosing further promotion in the service. Petitioner has summoned three witnesses from CRPF but none of them has spoken that petitioner will suffer any financial loss in the form of loss of promotion chances.
113. Petitioner has not placed on record recruitment rules applicable in CRPF and eligibility criteria for promotion. Petitioner has not proved that although he was found fit for promotion by DPC but was refused promotion as he was not in Medical Category SHAPE1. Petitioner has not proved that he was having necessary ACRs required for promotion. In absence of any such pleadings and evidence no compensation can be awarded in MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 28 of 33 favour of petitioner for financial loss due to loss in future earnings.
114. In the case of T.R. Sharma v. Avneesh Kumar reported in 2007 (138) DLT 305 the Hon'ble High Court of Delhi has dealt with loss of future income as under: "5. Learned counsel for the appellant shows that being a Constable in the Delhi Police, injury suffered no pecuniary loss for the reason evidence on record establishes that he suffered no cut in pay nor was he shifted to a job in the lower pay scale.
6. Confronted with the situation, counsel for the injured/respondent Mr. B.S. Nain submitted that the injury sustained by the respondent has affected his prospects of promotion.
7. No evidence has been brought on record that the respondent suffered a disability disentitling him to be promoted.
8. On above question, whether colleagues of the respondent, junior to him, have been promoted as Head Constable, counsel for the respondent states that the respondent is under suspension for dereliction of duty.
9. This brings out the uncertainties of the future prospects.
10. A Govt. Servant may do acts of dereliction of duty or may violate service rules. He may loose his job.
11. Today, it is in the realm of reality that the respondent is suspended. Had he not suffered an accident, respondent would have suffered disability of promotion due to his being suspended.
MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 29 of 33
12. Future prospects of promotion have to be established by bringing on record the service rules.
13. The ACRs must be established to show that the Govt. Servant was attaining the qualifying grade
14. As observed by the Supreme Court in the decision reported as II (2006) SLT 651 = 11 (2006) ACC 36 (SC) = AIR 2006 SC 1255, Bijoy Kumar Dugar v. Bidyadhar Dutta & Ors., evidence of future prospects is the sine qua non for awarding the compensation due to loss of future prospects.
115. No other compensation is payable to the petitioner on any other count.
116. Clause 4.13 of Ex. PW5/1 is applicable for Combatised Personal. Petitioner is not a Combatised Personal. Perusal of pay slip Ex. PW4/A reveals that his designation is described as ASI Ministerial. Therefore, petitioner has not shown that he will suffer loss of promotion because of disabilities suffered in the accident. Petitioner is not required to be in Medical Condition SHAPE1 for promotion.
117. Resultantly, total compensation payable to petitioner would be Rs. 8,15,216/. However, as petitioner was 25% responsible for contributory negligence, the total compensation payable to the petitioner would be Rs. 6,11,412/.
118. This compensation shall be payable with interest @ 9% per annum from the date of filing of claim petition which is 02.07.09 till its deposit.
119. For granting interest @ 9% per annum reliance can MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 30 of 33 be placed on the judgment of Hon'ble High Court of Delhi in Dhaneshwari & Anr. v. Tejeshwar Singh & Ors.: MAC APP. 997/11 dated 19.03.2012 where in para 72 and 73 the Hon'ble High Court has held as under: "72. In Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. (2011) 11 SCC 269, the interest granted by the National Commission @ 9% was upheld by the Supreme Court. In Sant Singh v. Sukhdev Singh (2011) 11 SCC 632, interest @ 9% per annum was awarded by the Hon'ble Supreme Court. In Raj Kumar v. Ajay Kumar and Anr. 2011 (1) SCC 343, the interest @ 9% p.a. awarded by the Claims Tribunal was approved. In Arvind Kr. Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254, interest @ 9% p.a. was awarded on the enhanced amount of compensation.
73. In these circumstances, I would also follow the Bank rate of interest and would award interest @ 9% p.a. on the enhanced amount."
120. In the case of Sheela Devi & Anr. Vs. Naib Singh & Ors. : MAC Appeal No. 91/05 dated 11.05.2012 the Hon'ble High Court has held as under: "7. The Claims Tribunal has awarded interest @ 6% per annum which is on a lower side. The Apex Court has awarded interest @ 9% per annum, in the recent case of MCD V. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100. Following the judgment of the Apex Court, the rate of interest is enhanced from 6% per annum to 9% per annum."
121. Insurance company has not proved any defence. Therefore, compensation would be payable by insurance company MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 31 of 33 within 30 days from today under intimation to the petitioner by registered post.
122. The compensation would be deposited directly by insurance company with State Bank of India, Dwarka Court, New Delhi in the name of SBI A/c. Dalbir Singh.
123. Out of this compensation, 10% of the amount with proportionate interest shall be released in his Saving Bank Account to be opened at State Bank of India, Dwarka, New Delhi.
124. Rest of the compensation would be deposited in 15 FDRs for a period 1 to 15 years and petitioner would be given monthly interest on these deposits in his Saving Bank Account regularly.
125. No loan or advance will be given against this deposit.
126. Original FDRs will be retained by the bank and photocopies will be given to the petitioner.
127. Pass Book will also be given to the petitioner.
128. FDR will not be encashed prematurely without leave of this Court.
129. Petitioner shall be at liberty to get the FDRs and Saving Bank Account transferred to any nationalised bank of his choice subject to similar terms and conditions as are noted herein above.
130. Petitioner shall cooperate with the bank by providing requisite documents and by completing required formalities for opening Saving Bank and FDR Accounts.
MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 32 of 33
131. Copy of award be given dasti to all the parties.
132. A copy of this award be also sent to State Bank of India, Dwarka Court, New Delhi.
133. File be consigned to record room.
Announced in the open Court On the 24th Day of September, 2012.
(ARUN BHARDWAJ) PRESIDING OFFICER MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS: NEW DELHI MACT No. 27/11/09 Shri Dalbir Singh Vs. Shri Ramesh Kumar & Ors. Page No. 33 of 33