Delhi District Court
Ms. Neha Bhardwaj vs Smt. Parshita Shamji (Driver) on 15 February, 2013
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS, NEW DELHI
DAR No. 239/DAR/12
IN THE MATTER OF :
Ms. Neha Bhardwaj
D/o Sh. Sant Ram Bhardwaj
R/o B1045, Palam Ext.
Sector7, Dwarka
New Delhi.
......Petitioner
Versus
1. Smt. Parshita Shamji (Driver)
W/o Sh. P.M. Shamji
R/o Q174, TypeIIIrd
S.P.G. Complex, Sector8
Dwarka, New Delhi.
2. Sh. P.M. Shamji (Owner)
S/o Sh. Govindam Kutty
R/o Q174, TypeIIIrd
S.P.G. Complex, Sector8
Dwarka, New Delhi.
3. ICICI Lombard
Vardhman Building
B.I Mini Market
Janakpuri, New Delhi.
.........Respondents
FILED ON : 28.07.2012
RESERVED ON : 11.02.2013
DECIDED ON : 15.02.2013
DAR No. 239/DAR/12 Ms. Neha Bhardwaj v. Smt. Parshita Shamji & Ors. Page 1 of 12
: J U D G M E N T :
1. This report of Investigating Police Officer (DAR) is filed by Investigating Officer in FIR No. 129/12 under Section 279/337 of IPC registered at P.S. Dwarka South pertaining to a road traffic accident where this claimant received simple injuries on 19.06.12 when vehicle no. DL9SAB3060 Activa Scooty being driven in a rash and negligent manner by Respondent No. 1, owned by Respondent No. 2 and insured with Respondent No. 3 had hit the claimant.
2. Perusal of the charge sheet reveals that claimant had stated before the Investigating Officer that on 19.06.12 around 9.20 a.m. she was going from Sector2, Dwarka to Sector1 Bus Stand for catching a bus and while she was crossing the road, Activa Scooty bearing no. DL9SAB3060 coming from MTNL Sector6 Dwarka side hit her from right side as a result of which the scooterist as well as this claimant both fell down and claimant suffered injuries on her head, left arm and left leg. PCR van took both of them to DDU Hospital, Hari Nagar resulting in registration of FIR against Respondent No. 1.
3. Respondent No. 1 and 2 have filed a written statement stating therein that the accident took place due to own wrong of petitioner who was crossing the road without following traffic rules and regulations.
4. It is also stated that Respondent No. 1 was having a DAR No. 239/DAR/12 Ms. Neha Bhardwaj v. Smt. Parshita Shamji & Ors. Page 2 of 12 valid driving license and was neither over speeding nor driving in a rash and negligent manner. The vehicle in question is insured with Respondent No. 3 vide policy cover note no. 3005/2010042116/0000007546 valid from 30.12.11 to 29.12.12 and liability, if any, is of insurance company to pay the compensation to the claimant. Therefore, it was prayed that no compensation be awarded in favour of claimant.
5. Reply cum legal offer was filed on behalf of ICICI Lombard General Insurance Co. Ltd. admitting all the material facts mentioned in the D.A. Report. However, it was stated that as per MLC, injuries suffered by claimant are simple in nature. She has suffered abrasion over left elbow joint, left lateral side of foot and CLW over occipital region. She was advised city scan and Xray and finally the doctors gave their opinion that the injuries sustained by injured are simple in nature.
6. The insurance company further stated that there is no other treatment record or bill alongwith the DAR. The injured has not supplied any document qua her employment or earnings. In these circumstances, insurance company gave a legal offer of Rs. 7000/.
7. As legal offer was not acceptable to the claimant, following issues were framed:
1) Whether the petitioner received injuries in an accident on 19.06.2012 caused by Respondent No. 1, while driving Scooty bearing No. DL95AB3060 rashly and negligently, owned by Respondent No. 2 and insured with Respondent No. 3? OPP DAR No. 239/DAR/12 Ms. Neha Bhardwaj v. Smt. Parshita Shamji & Ors. Page 3 of 12
2) If yes, what is the amount of compensation which the claimant is entitled to receive and from which respondent? OPP
3) Relief.
8. Claimant entered in the witness box as PW1 and stated same facts vis a vis accident as were stated by her to the Investigating Officer which are mentioned in the charge sheet. She additionally mentioned that she is a Director in M/s. VPN HR Technologies Pvt. Ltd. and is dealing in placement of qualified persons in reputed companies and she has four employees. She pays rent of office premises Rs. 15,000/ per month and salary of the employees paid by the company is Rs. 30,000/ in June, 2012 when she met with the accident. She further deposed that she could not attend her office for 15 days and the other Director was out of station in the month of June, 2012 and the office remained closed and no work was done due to injuries caused to her in this accident.
9. She deposed that the company lost about Rs. 50,000/ in addition to payment of rent and salary to the employees. She deposed that she has suffered loss of Rs. 95000/ approximately due to her non working for 15 days and company had also suffered incidental losses. She claimed a compensation of Rs. 1,05,000/ including Rs. 95,000/ for actual losses and Rs. 10,000/ for pain and mental agony suffered by her.
10. PW1 relied on D.A. Report as Ex. PW1/1. A letter DAR No. 239/DAR/12 Ms. Neha Bhardwaj v. Smt. Parshita Shamji & Ors. Page 4 of 12 dated nil signed by another Director of the company M/s. VPM HR Technologies Pvt. Ltd. which is purportedly written by this claimant stated therein that she had to remain on leave for 15 days due to accidental injuries as Ex. PW1/2. There is another certificate signed by another Director of the company. This is also dated nil stating therein that due to accident suffered by claimant the employees proceeded on paid leave as in absence of Director no work could be done. There is third certificate dated nil stating therein that the office remained closed due to accidental injuries of claimant but she continued to pay the rent for 15 days which is around Rs. 7000/, three receipts of Krishna Medicare for Rs. 854/, Rs. 678/ and Rs. 972/ were also placed on record by the claimants. Ex. PW1/3 is balance sheet as on 31.03.12.
11. In cross examination, she deposed that injuries suffered by her being head injury she had to proceed on leave for 15 days. Rest of the suggestions contrary to her case were denied by her.
12. No other witness was examined by claimant and no other document was proved.
13. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1
14. Burden of proving this issue is on the petitioner.
15. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, it is for the petitioner to DAR No. 239/DAR/12 Ms. Neha Bhardwaj v. Smt. Parshita Shamji & Ors. Page 5 of 12 prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
16. This is sine qua non for getting the relief.
17. It is stated by claimant before the Investigating Officer which is part of charge sheet that while she was crossing the road she was hit by offending vehicle driven by Respondent no. 1 in a rash and negligent manner. Respondent No. 1 filed written statement and denied allegations of rash and negligent driving made against her. Whereas claimant repeated allegations of rash and negligent driving against Respondent No. 1 but Respondent No. 1 neither cross examined the claimant, nor entered in the witness box to show that she was innocent and accident took place due to negligence of claimant herself.
18. Police after investigation in the matter has filed charge sheet against Respondent No. 1 under Section 279/337 of IPC which is also prima facie suggestive of negligence of the Respondent No. 1 in driving the offending vehicle in a rash and negligent manner.
19. 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 DAR No. 239/DAR/12 Ms. Neha Bhardwaj v. Smt. Parshita Shamji & Ors. Page 6 of 12 to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society"
20. In the case of National Insurance Co. Ltd. v. 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 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 DAR No. 239/DAR/12 Ms. Neha Bhardwaj v. Smt. Parshita Shamji & Ors. Page 7 of 12 in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
21. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that: "The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in 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 chargesheet 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."
22. 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 DAR No. 239/DAR/12 Ms. Neha Bhardwaj v. Smt. Parshita Shamji & Ors. Page 8 of 12 adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.
23. Therefore, this issue is decided in favour of petitioner and against the respondents. ISSUE NO. 2:
24. 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 injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future DAR No. 239/DAR/12 Ms. Neha Bhardwaj v. Smt. Parshita Shamji & Ors. Page 9 of 12 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.
25. As per MLC of claimant prepared at Deen Dyal Upadhyay Hospital, New Delhi the nature of injuries are simple. However, on local examination she was found to be suffering from abrasion over left elbow joint and left lateral side of foot. She also had CLW over occipital region. She was referred to Neuro Emergency also. However, as per clinical and radiological study the nature of neurosurgical injury was also found to be simple. Petitioner has not placed on record any treatment record except this MLC to show that she took treatment after her discharge from Deen Dyal Upadhyay Hospital. She was sent back from the hospital on the same day.
26. Therefore, for Pain and Suffering, injuries being simple she is awarded a compensation of Rs. 7,500/.
DAR No. 239/DAR/12 Ms. Neha Bhardwaj v. Smt. Parshita Shamji & Ors. Page 10 of 1227. Additionally she is awarded a compensation of Rs. 2,500/ for Conveyance Charges and Rs. 2,500/ for Special Diet.
28. There are few medical bills worth Rs. 2,504/ on record. Petitioner is entitled to receive this compensation also as Cost of Treatment.
29. Petitioner claims that she is a Director in a private company namely M/s. VPN HR Technologies Pvt. Ltd. For this, she is relying on balance sheet of the company where her name is shown as one of the two Directors of the company. She has claimed that she had remained on bed rest for 15 days due to injuries suffered by her and she suffered loss of rent Rs. 7000/ and loss of salary to the employees Rs. 30,000/ and she also suffered loss of business to an extent of Rs. 55,000/. However, injured has not proved that she was paying rent for the premises where her office is being run nor she has proved that she was paying salary to the employees nor she has proved that she was confined to bed for 15 days nor she has proved that she has suffered loss in business by filing ITR. Therefore, no compensation can be given on this account to the claimant.
30. Therefore, total compensation payable to the petitioner would be Rs. 15,004/ which will be paid with interest @ 7.5% p.a. (this is the rate of interest which is being awarded by Hon'ble High Court of Delhi at present) from the date of filing of this claim petition which is 28.07.12 till its deposit in the Tribunal.
DAR No. 239/DAR/12 Ms. Neha Bhardwaj v. Smt. Parshita Shamji & Ors. Page 11 of 1231. Insurance company has not proved any defence. Therefore, compensation is to be paid by insurance company which be paid within 30 days from today under intimation to the petitioner by registered post.
32. Copy of this order be given dasti to all the parties.
33. File be consigned to the Record Room.
Announced in the Open Court.
On the 15th day of February, 2013 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
DAR No. 239/DAR/12 Ms. Neha Bhardwaj v. Smt. Parshita Shamji & Ors. Page 12 of 12